Recommendation? Friend Arrested... Help

[JNieporte]

I just got a phone call informing me that a friend was arrested for carrying his Spyderco Endura. Let me explain his background and situation...

He is 27 years old, never arrested, never did drugs or alcohol. Does not have a concealed carry permit. Former U.S. Army Ranger with three combat tours in Iraq.

He did not have a firearm on him at the time. He got pulled over at midnight for running a stop sign, and stopped immediately. He gave his DL, proof of insurance, and registration to the officer. He was asked to get out of the vehicle (before his information was ran) and the officer saw the pocket clip of the Endura. He handcuffed my friend, removed the knife and opened it, then told him that it was illegal because of the blade length and the fact that it was concealed. He says that even though the clip was visible, it was considered concealed because police are trained to look for things like that and the knife itself was in the pocket, thus it was concealed. My friend informed the officer that there is no blade length limit here (true) and the officer responded by saying he wasn't aware of that, so he had to go on what he knew. Thus, my friend was taken to county lock-up overnight for possession of a concealed weapon. He was bonded out this morning, and is wondering what to do about this charge. He is due to go to court soon, and doesn't have the funds to pay a lawyer for all of the legal work required to get out of this.

Any advice?

[Esav Benyamin]

The law is whatever the system tells you today and tells you whatever else tomorrow. Who knows what the law is when the police make it up as they go along?

In NYC, a knife MUST be carried concealed BUT if the clip is showing, that means it is being carried openly and you can be arrested.

What to do? Get a lawyer. Can't afford one? Ask the court for one. He could begin by calling the local prosecutor's office and asking 1) about length of blade, and 2) what concealed carry means. If he's good on both, the court may throw it all out.

[Anrkst6973]

Esav, I think your freind is in hot water! Advise that he get a lawyer and contact every citizens rights/gun rights/knife rights advocacy group he can find. make a lot of noise in and to websites,forums and the media. To not be afraid to ask for the finiancial help of others to pursue this to the highest courts in the land. This, my brothers, is an outrage!

[p_mcmanis]

edit: for some reason I thought this was in NYC because of another post in another thread.

if the law is that difficult to understand, you probably will need a lawyer.

[cjpgeyer]

Did this take place in Ohio? I carry my Busse Scotch Dispenser in my pocket all the time. I asked a detective on the Columbus police force if it was a problem, and he said it was fine to carry it that way.

[street soldier]

If he can't afford a lawyer, ask the courts to appoint one for him.

Sounds like the cop isn't too familiar with the laws he is enforcing. If having the clip of the knife exposed means that it is not concealed in Ohio, than having the clip exposed means it is not concealed. End of story. I'm not up on Ohio's laws so I can't comment further on that.

Also, how hard would it be for the officer to look up the legal length of a knife before charging your friend for it? At least in New York, a complaint or court information has to filed with the courts/ DA's office in order for the case to proceed. No complaint/ court information, no case. If he checked his penal law section, he would know whether there is or is not a length restriction and could proceed from there. Same thing would be true in regards to 'concealed carry'. It would spell out, at least to a certain degree, what the definition of 'concealed carry' is. I've never heard of an exception based on the fact that

He says that even though the clip was visible, it was considered concealed because police are trained to look for things like that and the knife itself was in the pocket, thus it was concealed.

If neither of these criteria are met, than a criminal complaint cannot be filed.

Get a lawyer. Read up on the relevant criminal statutes for concealed carry and knife length in Ohio.

Also, why did the officer get your friend out of the car? If he handed him all the necessary paperwork and there was nothing obvious that would necessitate removing him from the car, the search itself is illegal. He needs to have a reason to remove him from the car, not just because he wants to. The Fourth Amendment guards against unreasonable search and seizure. Without knowing anything other than what you've provided, it sounds unreasonable.

[Anrkst6973]

I read that there was/is a double charge of not only having a concealed weapon but also a prohibited one (the blade inches issue) and this leaves our freind, who seemingly did nothing more than run a stop sign, with the possibilty of being charged twice...even if he beats the concealed rap he can be brought up on charges again for the prohibited weapon. I went and tried to read the actual law and other than being a bunch of legal gobblygook that no person can understand it seemed to be extremely vague about what is or is not lawful. That is why I advise to have an attorney. I would not want him to plead to a lesser charge that will leave him with a weapons charge/criminal record that will haunt him forever and surely not if there is the possibilty that he might face a second charge in which it would surely be said "here is a man who ALREADY has a criminal record for weapons charges." you see my point? with the help of an attorney and by making enough noise to the media about "They are prosecuting a decorated veteran,a lowly servant who did his duty for a nigglin little pocketknife!" the state might be persuaded to just drop the charges. The fees for the attorney and such would be much prefered over jail time and a criminal record that follows you around from now on.

[MORIMOTOM]

does he live in ohio? knowing which sections to read would be helpful. we also need to know what he was booked for. the booking charge should be on his jail reciept.

since he can't afford a private attorney, he will likely have to use the public defender. normally the first step a defense attorney will take is to request dismissal if the elements for the crime are not met.

speculating on 4th ammendment violations is extremely premature. no one here has read the police report and we only have a portion of what happened. whether or not the knife was concealed could easily be argued both ways validly.

email me if you want to talk...

[zignal_zero]

if your friend believes that he was arrested for doing something completely legal, he NEEDS to get a lawyer and go on the OFFENSIVE. when a person is wrongfully arrested, it is the wrong approach to just try to avoid being convicted of a charge THAT DOESN'T exist. he need to seek as much damages as he can.

i do not condone frivolous lawsuits against LE. however, if you are WRONGFULLY arrested it is you DUTY to go after that agency, full bore. it is a very effective way to remind agencies they are ACCOUNTABLE for what their officers do. as a result, they will better educate their officers on laws/rights and the community will be better served.

tell your friend, now is not the time to defend, it is the time to attack (i only mean that figuratively)

[fishface5]

Stated in the modt general terms since I have no idea what the local law is:

He should go to court and request a public defender. He will be screened to see if he qualifies. If he does not, ask for a continuance to get a private attorney. The standard defense tactic of getting as many continuances as possible is responsible for 50% of their success in getting charges dropped.

Under no circumstances should he plead guilty to anything until after he has had a full discussion of the case with his attorney.

PD's will be acquainted with the laws on concealed carry, legal blade length, and legitimate search incident to traffic stop. If your friend was not charged with running a stop sign that will help him beat the knife beef. If the PD is not able to specifically address these issues with confidence, get a new lawyer.

4th amendment issue of was the stop/search legitimate is not the best road for him since their is considerable leniency in traffic stops, and indeed an officer's declaration that the check was necessary for his safety is helped by the fact that the driver indeed had a knife. For the same reason, an "offensive" lawsuit against the officer/Department for a constitutional violation is unlikely to succeed.

[glistam]

fishface5, you advice is absolutely right for almost everything, and I want to emphasize that you remarks seem very reasonable to me. I must protest just one line though:

an "offensive" lawsuit against the officer/Department for a constitutional violation is unlikely to succeed.

Not true. Such suits are federal, not state. The courts have ruled that the police are responsible for knowing the laws they enforce. You arrest someone for something that isn't a crime, your qualified immunity is void and you become liable under 42 U.S.C. § 1983.

And citizens do win these suits even with knife related arrests:
http://pacer.ca4.uscourts.gov/opinion.pdf/011565.U.pdf

To the OP, resolve this case first, then if it's dismissed, sue the uniform pants off that guy. Teach that department that if their going to enforce the law, they better know what that law is in the first place.

[jnich67]

Please keep us posted on what happens here.

Jordan

[mp510]

speculating on 4th ammendment violations is extremely premature. no one here has read the police report and we only have a portion of what happened. whether or not the knife was concealed could easily be argued both ways validly.

Correct. I have no clue what Ohio case law says about concealment. However, I can tell you that while you have New York takes an extreme position regarding what is considered "not concealed"; other states, like Mississippi, have successfully taken extreme positions about what is considered concealed. In Mississippi, a weapon is considered concealed if any part of it is covered.

THE BEST ADVICE FOR THE OP'S FRIEND IS TO SHUT-UP, LAWYER UP (even a public defender is better than nothing), AND LET HIM HANDLE IT.

[street soldier]

Originally Posted by fishface5

4th amendment issue of was the stop/search legitimate is not the best road for him since their is considerable leniency in traffic stops, and indeed an officer's declaration that the check was necessary for his safety is helped by the fact that the driver indeed had a knife.

True, but is the officer removing everyone he stops to frisk/ search for weapons? How about Mrs. Mary Homemaker with three kids and a car full of groceries who blows the same stop sign? If not, then you are not applying the law equally and are in essence profiling or stereotyping or whatever term you want to insert here. You can't randomly pick and choose who you search; you need to apply the law the same across the board. And you need to have a reason you can articulate as to why you remove somebody from the vehicle. And 'because he looked mean and scary' is going to get old if that is the line you use every time in your reports.

Again, this is said with the caveat that the actual police report hasn't been seen and the totality of the circumstances are not completely clear.

[Fraser]

If he is TRULY your friend lend him the money for a decent lawyer.

If he is only an acquaintance and not a true friend ........ well, stop hanging around with thugs who get themselves arrested.

[cmdionne]

Originally Posted by Fraser

well, stop hanging around with thugs who get themselves arrested.

He sure sounds like a thug to me.

Originally Posted by JNieporte

He is 27 years old, never arrested, never did drugs or alcohol. . . Former U.S. Army Ranger with three combat tours in Iraq.

[Trace Rinaldi]

Well clearly since he is a veteran he is a threat, and a possible terrorist..

If the officer saw the clip and knew it was a knife clearly it was not concealed.. Its the luck of the draw when you get pulled over..

What a crock of $hit...

[KeithAM]

FWIW I looked into it once and:

1. There is no length limit in Ohio.

2. The State would have the burden of proving that it's being carried as a weapon.

HOWEVER,

Like anyplace else, the decision to arrest lies within the discretion of law enforcement officers who may not know or understand the law. And there seems to be a willingness to prosecute and convict when the knife-carrier is caught committing another, more serious crime.

Also, some reported Ohio decisions on this issue have looked at ridiculous factors in deciding whether a pocket knife is being carried as a weapon, including: whether it has a lock and how sharp it is!

Anyway, what happened to your friend sucks!

PS, I agree with everyone who recommends that he get a lawyer.

[TOM1960]

Originally Posted by street soldier

True, but is the officer removing everyone he stops to frisk/ search for weapons? How about Mrs. Mary Homemaker with three kids and a car full of groceries who blows the same stop sign? If not, then you are not applying the law equally and are in essence profiling or stereotyping or whatever term you want to insert here. You can't randomly pick and choose who you search; you need to apply the law the same across the board. And you need to have a reason you can articulate as to why you remove somebody from the vehicle. And 'because he looked mean and scary' is going to get old if that is the line you use every time in your reports.

Again, this is said with the caveat that the actual police report hasn't been seen and the totality of the circumstances are not completely clear.

Mrs. Mary Homemaker may not be as helpless as some may think. About 7 years ago, when I purchased a new vehicle, I went to my insurance company's office to settle the paperwork. The woman in front of me in that office (yes, she did have 3 kids with her and she was registering a minivan!) reached into her purse to get some papers. As the purse opened, a blackjack fell to the floor. Illegal here in Massachusetts; up to a 5 year felony conviction for carrying one.

[Planterz]

I cannot find any mention of a blade-length limit in OH except for municipal buildings (2.5", same as fed buildings). And a knife that is visible is NOT concealed. Visible is the dictionary definition OPPOSITE of concealed. All this blah blah blah about training to ID knives is BS; if the knife wasn't clipped, but sat entirely within his pocket, it would have been concealed, and the officer wouldn't have seen it. THAT would be concealed (and ironically, your friend probably wouldn't be in hot water).

I think your friend is in pretty good shape to be cleared of everything (except running the stop sign). But he does need to lawyer up, even if it's "just" a public defender.