Here is an interesting excerpt from the Milwaukee JournalSentinel online edition of July 24…
Milwaukee police officer Cassandra Benitez testified that when she first looked into Sutterfield's car from the passenger side with a flashlight, she did not notice the 9mm Glock on Sutterfield's hip, despite being extra alert to a possible weapon after seeing a National Rifle Association cap on the back seat.
Benitez testified that her training told her that the presence of NRA gear makes it more likely the person might have a gun.
Yes this is taken out of context… the back story is that MPD officers rolled up on a car sitting in front of a business late at night. The driver of the car was there to use the free Wi-Fi offered by the business. She had a laptop open and operational. She had a gun on her hip (carried openly in accordance with Wisconsin Law). She also has a history in the area, after winning a settlement from the Milwaukee suburb of Brookfield for false arrest when she openly carried a gun into a church there. No charges were filed and the City of Brookfield paid her $7500 for troubling her so.
So, at about 12:30 a.m. on Nov. 11, 2011, Milwaukee police spot a car parked in the parking lot of a coffee shop using the Wi-Fi. (Oh how I wish I could say it was a pro-gun Starbucks, but I don't know for sure.) Officer Benitez and another officer approached the driver of the car who was sitting there, computer open, looking at the internet, because they said the scene looked suspicious. I'm a cop. I know about Terry Stops. This likely qualifies. I mean, it's 12:30 a.m., the business is closed, an occupied vehicle sitting in the parking lot deserves a look. And, for me, a “look” includes getting identification from the driver to see if there are any active warrants, probation or parole (for burglary maybe?) or anything else. Now here is where things get odd and confusing and a little common sense BY BOTH PARTIES makes them better.
The cops say they want to see some ID, the driver of the car refuses. Now, in some cases, it is your right to refuse to talk to the police. If you are walking down a sidewalk minding your own business, even late at night, and cop says, “Hey, can I talk to you?” You can say, “No.” and just keep on walking. That's because you have a right to be there and walking on a sidewalk is what people normally do on sidewalks. But if something is out of the ordinary, then things change. Is this a high-crime area? Are you in the area when it is typically not occupied? Are you doing something people don't ordinarily do at that place and time? There is some latitude here. Police officers can make a Terry stop if they have reasonable suspicion to believe that a crime “has been committed, is being committed or is about to be committed.” That is broad latitude, but it is the law. So the questioning is OK. It is also OK to ask for a driver's license as proof of ID because, a reasonable person would expect that that someone sitting in the driver's seat of a car in a parking lot drove it there. So, to insure that the driver is legally licensed to drive, it is reasonable to gather that information. It is perfectly legal to run the plate because that is out in plain sight. So, from the plate you get the name of the registered owner. This reinforces the idea a police officer can reasonably ask the person behind the wheel for ID to check out if that person is legally driving the car. It could have been stolen but not yet reported.
Instead of saying, “Yes, officer, here is my driver's license, I believe I am here legally and I have a legal firearm with me.” The driver refused to identify herself and locked the doors to her car. If you really want to arouse suspicion from a couple cops do that. Now you have gone from “routine contact” to “things are getting odd.” The citizen only opened her doors when a supervisor arrived and threatened to break the windows of the car to extract her. Tensions are rising and the only thing the cops really know for sure is there is a gun in the car.
It is a mixed up situation. The officers said her weapon was concealed. The citizen said it was not. The jury believed the citizen. But it all could have been avoided with some common courtesy, something all to often lacking today.
I am upset that MPD officers are trained to be on high alert because they see an NRA emblem. But I will always err on the side of officer safety. Certainly I will be more concerned if I see an MS-13 tattoo or an Insane Clown Posse emblem, but I will make note of an NRA emblem on a traffic stop. If I see a gun, or if the citizen tells me he or she has a gun, I have what I think is a very good opening line. “You don't reach for yours and I won't reach for mine. Put your hands where I can see them and don't move them unless I tell you to.”
As concealed carry advocates everyone reading this blog agrees that we carry guns because never know when someone will decide to turn criminal. You can't tell by looking and words are often not truthful concerning criminal intent. So put yourself in the place of these officers, thinking as you and I think as CCW holders: We never know when a crime will happen. Criminals come in all shapes and sizes and we know for sure there is a gun present at the scene and it is not under our direct control. If a gun is present, I am vigilant, aware, yes, even nervous. I want to take steps to keep the situation safe. That means knowing who I am dealing with, where the gun is and where the person's hand are at all times.
In the end, the citizen won the court case. But did she win the larger battle? She still got arrested that night. She could have avoided that. She insured that even more police officers will look at Open Carry advocates as over-zealous clowns simply trying to prove a point. Think about how you as a gun owner interact with police. Sure, you know you are a safe, law-abiding, normal citizen, but the cops don't. And you should not be offended by that because you understand and believe that no one can predict when someone will turn criminal. If you believe that, why shouldn't cops? Most of the people I've arrested looked normal, right up to the time they did something stupid.
The one thing I am glad to see with this case is that it ended in the courts, not on the streets. If you have a dispute with a police officer on the street. If you honestly believe you are doing nothing wrong, the place to prove that is in the courts, not on the street. Don't argue and scream and fight with cops on the street, do it in court. If the cop is wrong, the cop should be punished. In this case, the officers were wrong and I hope they get some additional training about what constitutes legal open carry. But I also hope the citizen learned that a little diplomacy could have kept the situation from getting out of control.
This is a complicated case. As a cop, if an armed subject starts refusing to cooperate the pucker factor increases greatly. As a citizen, I find it disturbing that an NRA emblem is now grounds for high alert. A little common courtesy could change that.
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“So, to insure that the driver is legally licensed to drive, it is reasonable to gather that information.”
Not in the least. Delaware v. Prouse prohibits police from just what you stated you would do.
Just to point out facts of the case in Deleware v. Prouse : A Delaware patrolman stopped William Prouse’s car to make a routine check of his driver’s license and vehicle registration. The officer had not observed any traffic violation or suspicious conduct on the part of Prouse. After stopping the car, the officer uncovered marijuana. The marijuana was later used to indict Prouse.
This is not exactly what happened in Milwaukee. The car was parked in the lot of closed business well after hours. I think the falls well under the purview of Terry v Ohio and the suspicious activity of being in an area not normally occupied at that time of day. I think it could be argued that police have the right and indeed the responsibility to investigate such a situation based on the Terry v. Ohio ruling. It is a fine line for lawyers and judges to decide in a courtroom. What I’m saying, again, is that such issues should not be decided on the street by a citizen refusing, obstructing or resisting. If the cops got it wrong, take it to court. Better to fight in court than on the street.
The last time I was pulled over for a minor infraction it didn’t even cross my mind that I had my revolver in my belt. The officer never asked, and like I said, I didn’t even think about it. I irritated the officer when he said I pulled out in front of traffic and I replied, no I did not. Neither of us was concerned about guns so I got a ticket and we both moved on. I went to court and beat the ticket. Guess I was right. Concealed carry is pretty common where I live and if someone does not look or act nervous, in the trooper’s mind, I think it is not an issue.
The women was wrong she should have co-operated with the police that being said I have on many occasion encountered police that think they are the only ones with the right to carry a firearm. Department policy where I live is that if you are stopped by the local police ( city and county not state ) you are required to tell the police that you have a firearm either on you on in the vehicle. What I don’t agree with is that officer having the right to take that firearm away from you if you have a legal right to posses it. Safety is one thing but absolute control is another. I have a licence, and a legal right to carry. As long as I do nothing that gives him a reason to be in fear for his life or others he has no legal reason to disarm me.
Why should she cooperate with illegal actions by police?
“parked in the parking lot of a coffee shop using the Wi-Fi. (Oh how I wish I could say it was a pro-gun Starbucks, but I don’t know for sure.)”
Not a SBX, but definitely OK with carry. In fact, he testified for me at the trial. And I’ll be having a celebration shindig there in a couple weeks.
“a “look” includes getting identification from the driver to see if there are any active warrants, probation or parole”
So you think you can require someone to give up her/his 5A right against self-incrimination?
Because if someone does have w/w that’s exactly what they’re doing.
Or maybe you’ve just run into that rarest of birds, an informed law-abiding rights-respecting citizen.
“Are you doing something people don’t ordinarily do at that place and time?”
Milwaukee city code says that someone has to explain what he’s doing & why he’s at a place if it appears that he’s there doing something “at a place & time not normal for law-abiding citizens”.
So once the cops saw the computer, & the sign in the window that says “free wi-fi”, & heard the explanation “I’m using my computer on the free wi-fi” that should have been the end of it.
The ONLY reason they stuck around is because they erroneously thought that they were allowed to demand ID (not in WI) & were bent on doing anything they could, legal or not, to get it.
“It is also OK to ask for a driver’s license as proof of ID”
Which they NEVER did.
“to insure that the driver is legally licensed to drive, it is reasonable to gather that information”
See Delaware v. Prouse.
Stopping a car just to see if the driver has a valid license is illegal.
“Put your hands where I can see them and don’t move them unless I tell you to”
So why do you have a problem with me not exiting my car?
I’m a safe person. My seatbelt was buckled. I’m right handed. They’d told me not to reach toward my pistol, and to keep my hands on the wheel.
Exactly how was I supposed to get out of the car when I couldn’t unlock the door or unbuckle my belt without going against what they’d said?
And if I had been stupid enough to try to unbuckle my belt I would have been shot.
“Sure, you know you are a safe, law-abiding, normal citizen, but the cops don’t.”
Since even the FBI has published a study saying that criminals don’t open carry and only rarely use holsters, seeing an openly carried pistol in a holster should be very reassuring – that person is not a criminal.
PDFs of the study are available here:
Surely law enforcement professionals keep up with research in their field.
“Don’t argue and scream and fight with cops on the street”
I did none of the above.
Since you didn’t sit in on the trial, you didn’t hear how all 3 of the officers admitted that I was completely cooperative, nonaggressive, didn’t resist their illegal actions.
“if an armed subject starts refusing to cooperate”
That should be “citizen refuses to give in to illegal demands”…
BTW, their illegal actions included pointing my own gun at my leg.
“Terry Stop” cute.
Ever since Katerina hit New Orleans and decided that they had the “authority”, to confiscate any weapons they saw, I was made acutely aware that cops, can make some outrageous demands. No one, either police or legal, has ever drawn the line on police demands. When do we have to comply, and when do we have the right to refuse. By no one clarifying this, it puts police and civilians in jeopardy.
What’s this BS about police being trained to watch out for NRA decals? It would make sense because we are easy targets. Lawful, willing and obedient. No threat to them or society. Just a “terry stop”?. Might even get a ticket out of it. Search real hard, you might find something wrong. Espically the rifle, concealed in a locked case, in the trunk. I recently learned that ammo in the same trunk is now a felony……
To make matters worse, this idiot we have for a governor in California recently signed a bill into law banning the open carry of an UNLOADED gun. Tell me that isn’t against our second amendment. You have the gun grabbing pencil necked geeks that don’t give a damn about laws that are already on the books. They want to add more crap that only affects us law-abiding citizens. Don’t affect the crooks, just us. Just let one of them be confronted by a gun toting crook and see how fast they run home crying ma ma.
a couple of things:
What is a “terry stop”?
When did become legal for police officers to demand identification from citizens who are not obviously committing a crime?
When did police officers become clairvoyant and able to ascertain when a citizen is about to commit a crime? It sounds a bit like “minority report”
Personally, I would have probably let the officer see my ID. However when they have asked “do you know why I pulled you over?” “do you have any drugs or weapons in the car?” or “will you let us search your vehicle?” I draw the line. I ask then “do you have a warrant to search my vehicle?” “What is your probably cause for detaining me or asking any of the above questions”
I am basically a boring old man who takes a lot of drugs but they are stuff from my doctor that I take to try to stay alive another few years. I saw the government go for a “rights grab” after 9/11 with the USPatriot act. Funny that it mainly was made up of things the various federal law enforcement agencies had wanted for more than a decade and that congress had refused to pass. Its also funny that these new powers seem to be much more focused on the drug war rather than the war on terrorism.
Some in law enforcement and in government forget that they are there to serve the people, not to rule them. Freedom and safety are two vastly different goals and I haven’t seen freedom or safety increase since 9/11 but I have seen rights and freedoms decrease.
The world is dangerous and its not all made of Nerf. We will be banged and bruised but eventually we will be more free if the government focuses more on freedom than safety.
We have a couple of problems here. One many women have been raped and murdered by fake and real police. Two she should have called the police and checked to see if they were real police. The problem is if she had been in Anaheim, LA, or Chicago the police would have shot her repeatedly and no one would have investigated because she was armed. I have been beaten by crooked cops, lied about in there reports, and have never been convicted of a crime. It is ok for them to lie to you but it is a feloney for you to lie to them. I keep a video camera and my cell phone also records in my car. Dont trust them anymore!!!! Most are good people, some are worse then the people they arrest and they dont care if you are guilty or not. I was stopped and asked why I was picking up hookers, I had just picked up my wife and her sister from the motel on Beach bulivard in Santa Ana Calif. where they worked. I asked how did the cops know they were hookers, he said all he had to do was look at them and he knew. He also got suspended after I asked for a watch Commander and filed a criminal complaint for slander and defamation of character. I also refused to let them search my car until my Attorney and the watch Commander got there.
As a retired LEO I can tell you the training teaches us to be alert for weapons, always. Wehen weapons are encountered it is better to have them in your control and not a possible suspects. It only takes once to have a weapon pointed at you to make you a lifetime believer in the always error on the side of safety training. By keeping this situation safe for the officer, we are also keeping it safe for the citizen we contact and anyone else in the area of the contact. Gunfights always endanger everyone within a bullets striking distance. I have encountered persons who refuse ID for a number of reasons and usally it is because they have somthing to hide. Only once was it attributed to doubt of proper authority and we did show me yours and Iwill show you mine – that’s ID of course! but the citizen was cooperative and kept her hands on the steering wheel while I displayed my identification card and she in turn handed me her drivers license. Having said all of that, (whew) officers have a responsibility to protect the citizens with intheir ability and oath to uphold the constitution. The lawabiding public should take time to make that as simple process as posible. It has always been my policy to treat people as they deserve. I may always be dilligent in officer sayfey but I will treat you with the respect you deserve if you return the favor in kind. If not you are indicating to me you wish to handle this situation in a different manner! your choice, not mine.
Officer safety does not take higher precedent to our Constitutional rights. You believe it is better to take control of someone’s weapon, when you have no reason to believe they are a threat? You do that to the wrong person and you will be in the same shape as the officers in this story-facing a lawsuit. In KY you would be violating state law if you disarmed someone unless you had RAS to believe they have committed or was about to commit a crime, or that they are a felon or carrying a stolen firearm. It is my right to refuse your command to show my identification unless I am behind the wheel of an automobile. You think everyone you encounter is a suspect? That is sad, sure doesn’t sound like you are showing people respect if you believe everyone is a suspect. It is safer to leave a firearm where it is, than to handle it. Again, if you don’t have RAS to believe someone is a SUSPECT of a crime, then do not deprive them of their rights! Carrying a weapon does not give you RAS to stop them or PC to disarm them! It would serve you well to do a little research into case law, preferably SCOTUS cases. It is our job as those who enforce the law to obey the law, and the Federal and State constitutions we are bound by. We don’t disarm unless we have reason to believe the person we are disarming is a threat, if we don’t follow these simple procedures then we run the risk of depriving citizens of their’ rights, something I don’t want to do! Oh, and I have looked down the barrel of a gun, and I still don’t beleive that would give me the authority to disarm a law abider.
“The Claim and exercise of a Constitutional Right cannot be converted into a crime.”
Miller v. U.S.
“The mere presence of firearms does not create exigent circumstances.”
WI v. Kiekhefer (1997)
“Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment.”
Delaware v. Prouse (1979)
“Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention.”
St. John v. McColley
The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
United States v. Ubiles (2000)
The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
United States v. King (1993)
A neighbor of mine was a deputy. One day at another neighbor’s house the three of us were sitting at the table shooting the breeze when the deputy simply stated “everybody lies to us.” Imagine what the other two of us were thinking.
The diminutive of the name Richard?
Good advice for the current state of affairs, but it wasn’t always this way, and that is the real heart of the problem.
Throughout most of the 19th century and the first third of the 20th, if a citizen wanted to be armed on a given day, it could be assumed that they were. Yet, this did not seem to greatly alarm peace officers of the time. Why? Because they knew, for the most part, the people they were policing, and the citizens in their community knew them. For various reasons, mostly population density, that has gradually changed, but the process accelerated during the Clinton administration, and it was deliberate. Around this time, research was released indicating that the rank and file of the United States military would not obey orders to fire on their own people. As Mr. Panetta demonstrated recently, the Executive has been frightened of them ever since.
This is why our military is still being kept scattered around the globe, while our local police are being militarized, and the current administration is even seeking to create a ‘civilian defense force’. This can be seen in hiring policies and training across the nation. Even the language has been changed. Police were once called “peace officers.” One who keeps the peace, and defuses tense situations through social skills and their authoritative presence. Now they are “law enforcement officers.” Enforcers. One who enforces compliance and obedience through the application and escalation of physical force. See the difference?
For some officers, such as Border Patrol or undercover, isolation is just part of the job. For the rest, it’s a serious problem. This problem will not be resolved until rank and file PEACE officers rejoin (and in many cases help begin to rebuild) their communities, and stop meekly tolerating the isolation and militarization of their profession.
A long with the change in titles there has also been a change in the look of many officers. Here in the Atlanta area many officers where what is basically a set of black BDUs and jump boots who appear more as an occupation force than the people who we can turn to, who our kids will run up to when lost.
A well written article. Mr. Michalowski is right, a little common courtesy can go a long way. It doesn’t have to even be a matter of putting yourself in the officer’s shoes – just pick your battles. Every interaction with law enforcement doesn’t have to be a Constitutional confrontation.
The few times that I’ve been approached by officers, I’ve informed them that I have a concealed weapon in the car, even though Idaho doesn’t require that notification. I figure that I’d rather get that knowledge out there for two reasons: first, if the weapon becomes visible during the course of our interaction, it won’t come as a surprise to anyone. And second, I won’t be having a shootout with a cop, so it’s not as if I have some tactical advantage by keeping it a secret.
So, those times that I’ve told the officers that I’ve got a gun, they’ve asked where it was and asked me to just keep away from it. And we got along famously – and most of the time, we end up with a chat over what I carry versus what he carries, then I drive off without a ticket. I don’t even recall ever being asked for my CWP! What has never happened is any kind of a confrontation, aggression or anger on either parties’ part.
I guess it’s like mom always said: you’ll catch a lot more flies with honey than vinegar.
“The few times that I’ve been approached by officers, I’ve informed them that I have a concealed weapon in the car, even though Idaho doesn’t require that notification.”
I hope you never get the California or New York transplant cop.
Very interesting story and it furnished some excellent knowledge about thoughts coursing through an officers mind when they approach an occupied vehicle. I agree with much of what was shared, although there are other thoughts that come to mind.
For example, who’s to say that these police officers are legit? A simple solution by the person in the car would have been to contact the local PD via phone and ask if there were officers on a scene at that location. I’ve read plenty of articles over the years about fake police officers, especially in unmarked cars (no signage, but with dash and or grill lights). I could carry this a step further regarding the “you know you are law abiding, but the police don’t” comment. I don’t know that the police are law abiding, and unfortunately there are more and more reports of officers out of control. It doesn’t matter if it’s only 1% nationally or .1%, fact is it happens and I as a citizen do not want to take a chance with a possibly over zealous armed servant to the public.
I am sure it is not easy being an officer of the law today. So many things can and do go south in so little time. How can we ensure the safety of the citizen and officer in situations like this without there being unnecessary arrests and $$ and time wasted by judges, juries, etc.. With modern technology, there are ways, but there are also ways to make appearances seem real that aren’t. In the end, it all comes down to using common sense and the tools that we have at our disposal. I would have called dispatch to verify the officers at the scene. I would have likely assumed if it was a marked car that they were legit. In some respects, it looks like what we have here, is a person using the system against the system to support their livelihood. That should be a criminal act.
As a CCW instructor, I teach that a smile and relaxed body posture can diffuse the tension of an encounter with LEOs without sacrificing civil rights.
I agree that Ms. Sutterfield erred in her choice of interaction. Unusual behavior of being at a closed business late at night is asking to be questioned. She should have been more cooperative to defuse the situation.
I cooperated to the full extent required by law.
Since you weren’t there, & weren’t even at the trial, you have only news accounts (& this blog’s third-hand report) to go on. Not exactly reliable.
I agree with dzachmeyer. I work around Police Officers as I am a Police Dispatcher, and I can most assuredly say, they err on the side of Safety and caution every time. The time they do NOT will be the time they may not go home at the end of that shift. It is their JOB to be nosey. It is their JOB to question. It is my duty as a law abiding citizen to help them by cooperating as much as possible without negating my own rights. I have no problem at all complying with an Officers wishes and verbal commands to make sure the situation stays friendly and in THEIR comfort zone. That way, the end result is a happy and safe encounter for both of us.
I’m not sure that it is their job to be nosy without knowledge that a crime is or has been committed. If the local liquor store had just been robbed by a woman who matched Ms. Sutterfield’s description and whose car matched hers, then yes, they have probable cause. Nor do I believe that I have a duty to answer any question put forth by an officer, especially since she was not driving on the road at the time where they might have had probably cause based on erratic driving.
The police have a tough job and we should do all we can to make it easy. In many areas the police look at the armed citizen as backup – as an associate. Why would we want to pretend that we are anything else? In Texas you must declare your possession and offer your identification when approached. It is no big deal and puts everyone in a positive environment immediately. Anyone who does not find it best to cooperate is only trying to make the system more difficult to both believe in and administer. When we declare our right to carry we must include our responsibility to be part of a team effort. I think the person in this story was completely out of line.
If that is the law in Texas then you should obey it, though I would also consider whether or not it was a law that needs to go away.
“Anyone who does not find it best to cooperate is only trying to make the system more difficult to both believe in and administer”
No, they are people exercising their rights. We are not subjects due to make the king’s job easier. We are free citizens of a republic which is based on limited government, something politicians have long ago forgotten. An absolute police state is much easier to control than a free republic but which should be our focus – the work load for police or the freedom of the people.
Many of our laws could easily be changed. At least four states have established “constitutional carry” where citizens do not have to ask the government for permission to exercise the second amendment. It doesn’t say the right to own guns but rather the right to bear them. A second person in that theater in Aurora could have greatly lessened the carnage by dropping the kid with the guns. Sadly, most carry laws would have outlawed anyone from legally carrying a gun into that theater. We have these come up every few years. Someone at Virginia Tech could have reduced the carnage. Someone on the four planes on 9/11 could have stopped the tragedy.
This issue in New Mexico is much different than in many states, as in NM ones car or other vehicle is considered the same as ones home. Having a concealed weapon in ones vehicle loaded or otherwise is a non issue, having a loaded concealed weapon on ones person while inside the vehicle is a non issue. For this reason LEOs in this state assume everyone is armed as is their right. On the up side as an armed citizen I have backed up LEOs during felony incidents. This is telling as in NM the entire population of the state is less that that of the Los Angeles area.
I guess turnabout is fair play. I profile every police officer I see. Anything I say can and will be used against me.
45 Carry, you are obviously a well informed person. As one person said here, it’s perfectly okay if a police officer tells you a lie, (in fact, they are trained to do that!) but if you do the same, then it is considered a felony! Go figure? Another person here says, “take it to court.” Generally speaking, that would certainly be the right thing to do, or at least that would be my way of thinking. Unfortunately, rare is the time that a judge will side with the citizen against a police officer, not even if the citizen has indisputable evidence that they are right! Sadly, and what’s even worse is that many times the judicial system, and/or those who rule within it are bigger crooks than the criminals, and bias/prejudice is obvious and in abundance throughout. Go to court without an attorney, and it’s considered suicide. Go to court with an attorney, and it’s considered suicide of your bank account! Either way, you lose.
That is why I think a lot of police officer push issues, they know that many of us can’t afford a lawyer so we will submit to save the expence. I have on many occasions had to submit because the cost of a lawyer was greater than the arguement.