The U.S. is a “common law” country. This means judicial decisions from a previous case can be cited as precedent for rulings in a current presented case. Hence the related term “case law,” wherein previous court rulings (patent law cases or a military court-martial) guide future judgments.

Case law is a different concept from “statutory law,” or statutes enacted by legislatures. For instance, New Jersey Sen. Cory Booker (D), who wants to be president, has proposed statutory laws that would require gun owners to be licensed and registered.

Common law is also different from “regulatory law” — regulations established by executive agencies based on statutes. I once worked for the U.S. Fish & Wildlife Service and dealt with implementing congressional mandates and having to make sense of them in practical, everyday terms.

New York Makes Firearms History

In the face of existing statutory and regulatory law, new case law in New York is favorable to gun owners, though barely. The following case will be presented in a future issue of Concealed Carry Magazine, but here are the particulars:

  1. Jonathan Rose was stopped for a minor traffic infraction (violating regulatory law).
  2. The officer saw Rose’s Colorado concealed carry permit and decided to search him and his car.
  3. The officer discovered loaded semi-autos and other gear (violating statutory law).
  4. After two years of agony, Rose, clearly in violation of both regulatory and statutory law, is … (Insert your best guess: Cleared or jailed?).

In this case, a judge ruled that the officer had violated Rose’s rights because simply seeing a Colorado permit was not sufficient for a probable cause search. It wasn’t just a technicality. The ruling was based on a substantial officer error.

A tan baseball cap with a black Walther patch on the front, a black inside-the-waistband (IWB) holster, a clear bag contaning a pair of bright yellow foam earplugs and three rounds of .380 wadcutter pistol ammunition lie atop a right-hand shooter aim correction paper target with a red bullseye.

According to case law, the presence of which item in the picture gives police probable cause for a warrantless search? (Photo by Rick Sapp)

Citing Cases

In his ruling, the judge cited several settled cases:

  1. From People v. Garcia, police may inquire about weapons when they have a “founded suspicion of criminality.” Seeing the Colorado permit raised insufficient suspicion that the licensee may have had a gun on him.
  2. In People v. Batista, the court ruled that a defendant wearing a “bulletproof vest” infers that the defendant has a gun, but “more is usually justified to require a frisk.”
  3. Based on People v. Salaman, the officer was justified in asking Rose if guns were present and thus could proceed with a “minimally intrusive limited inquiry.”
  4. From People v. Robinson, asking Rose to step out of the car was reasonable.
  5. Discussing the pat-down search, the court cited several cases, among them Terry v. Ohio, which said an officer may search a defendant who is considered “armed and dangerous.” Because Rose was compliant in every way, nothing in the situation suggested an element of danger; therefore, the officer’s search based on “a hunch” was not justified.
  6. The district attorney cited People v. Torres to justify the search of Rose’s car, but the missing element was any “actual and specific danger.”
  7. Citing People v. Bigelow, seeing one piece of evidence — Rose’s Colorado permit — did not necessarily give the officer probable cause to search the car. The judge, therefore, threw out the evidence thus found against Rose.
  8. When Rose inadvertently handed over his Colorado permit, the DA said he was admitting that guns were in the car. Citing People v. Pincus, the court disagreed.
  9. Citing People v. Ellis, People v. Shin and People v. Barroa, the court said seeing bullets in the car would be evidence allowing a probable cause search. In People v. Elwell, however, empty holsters were not sufficient. Nor were the targets in People v. Drayton because bullets are “immediately associated with the presence of a deadly weapon,” whereas targets are not.
  10. Claiming Rose was nervous and noncompliant, the DA cited People v. Smalls and People v. Arnette, but upon reviewing video and audio recordings, the court disagreed.

Case law makes our legal system go round and round. If you are ever involved in a violent self-defense situation, you will learn more about it than you ever imagined.


About Rick Sapp

Rick Sapp earned his Ph.D. in social anthropology after his time in the U.S. Army working for the 66th Military Intelligence Group during the Soviet invasion. Following his time in Paris, France, he worked for the U.S. Fish & Wildlife Service before turning to journalism and freelance writing. Along with being published in several newspapers and magazines, Rick has authored more than 50 books for a variety of publishers.