Very good point on the Penal Code. I really should have said violating a criminal statute regardless of where it resides in the code. On the issue of whether "more likely to be illegal than legal" as believed by the average person...I'd just say arguable.srothstein wrote: ↑Tue Oct 19, 2021 9:23 pmOne minor technical correction first. Not all crimes are in the Penal Code. There are many codes which have crimes, such as the Transportation Code (all of those traffic tickets are actually crimes), the Education Code (some interesting ones about failure to ID on a college campus and for displaying a firearm on any campus), the Health and Safety Code (where most drug laws and illegal cigarette smoking laws are), and the Alcoholic Beverage Code (underage drinking, etc.). I agree with the rest of your statement about needing reasonable, ARTICULABLE, suspicion of a crime and just looking like a mook won't cut it.ScottDLS wrote: ↑Tue Oct 19, 2021 1:26 pmA "Terry Stop" requires a (specific) reasonable, articulable, suspicion that a crime (penal code violation in TX) is being committed or is about to be committed, OR it is not lawful. "The guy looked like a mook" doesn't cut it. And now with unlicensed open carry being legal, neither is openly carrying a handgun, though I would argue even before unlicensed carry it still wasn't "reasonable suspicion".
My other point, which may be more important for an academic discussion or training police, is on just what constitutes reasonable suspicion. Unfortunately, the term is not very well defined and courts have generally taken the same attitude as they have with pornography - "I know it when I see it". I was taught that it is when the officer comes into possession of such facts that would lead an average person to believe that a crime is or may be committed. The behavior might be legal, but it must be more likely to be illegal than legal. This lifts the standard way over mere suspicion but not quite as high as probable cause. I point this out because I do not agree with you that when licenses were required that seeing a person with a firearm would not have made the cut as reasonable suspicion. When licenses were required, I think more people were still carrying illegally (other than the unlawfully carrying they were not all criminals, some just did not believe a license was required) than were licensees, so it may not have made the cut on "more likely to be illegal".
Obviously, this is moot now for the scenario of just seeing a gun. There is no way any officer could justify this as meeting the requirements of reasonable suspicion since it is plain legal in at least 95% of the cases.
And while we are on the subject of what Terry authorized, the frisk portion of that decision is one of the most abused searches I have seen. It was a good decision for the specific case facts, but a very bad decision overall. I keep hoping it will be overturned. But I will not hold my breath waiting for that.
I'm not wholly convinced that the suspicion is reasonable if the conduct can often, even if not the majority of the time be legal. A significant minority of the adult population of Texas has LTC (high single digits?). Federal appellate courts have split on comparable circumstances in other states. One of the other nuances, I think you may have pointed out in the past, is that Texas law specifically allows LEO to stop individuals driving to see if they are licensed. However, in the absence of some other RAS or perhaps even probable cause, I think this pretty clearly violates Terry and other Federal constitutional precedent. As far as I know Texas LEO don't make random car stops with out some RAS "pretext", which is of course easy to come up with. Witness, Live PD... "He's got a dim license plate bulb, pull him over and call for Lor the drug dog!"
Though I have to admit, doesn't the guy with the dim license plate light ALWAYS have a bag of meth in the console and a needle on the floorboards?I'm with you on your view of Terry also... A light pat down of the exterior clothing for weapons and brief investigatory detention, turns into three hours in the back of the car and your camera and mobile devices being mysteriously destroyed.
