Indiana Supreme Court: 2nd Amendment Rights Protected by 4th Amendment

Brandon Oathout of Johnstown, N.Y., attends a Second Amendment rally at the Capitol on Tuesday, May 21, 2013, in Albany, N.Y. A few hundred people gathered for the rally pressing for repeal of the state's new tough laws that were enacted a month after the Newtown, Ct., school massacre. (AP …
AP/Mike Groll

In a May 9 ruling regarding a case where an individual was “detained and questioned,” then arrested for possessing a gun, the Indiana Supreme Court ruled that Fourth Amendment protections cover individuals who are exercising Second Amendment rights as well.

The case, Thomas Pinner v. State, revolved around Pinner’s arrest after dropping a handgun while exiting a taxi outside a movie theater. The taxi driver claimed the sight of the gun made him fear he was going to be robbed.

The Indiana Supreme Court’s (ISC’s) opinion explains that Pinner is a black male who was with a black female. The opinion describes that officers Jason Palmer and George Stewart arrived at the movie theater to find Pinner sitting on a bench:

The officers approached the seated Pinner with Officer Palmer “standing on one side and Officer Stewart was standing on the other side[.]” Officer Palmer introduced himself and informed Pinner that they had received a call that “someone of [his] description . . . has a handgun on him.” Officer Palmer then asked Pinner if he possessed a weapon. Pinner paused “for a few seconds” during which “he was kind of a little rocking back and forth [wringing] his hands.” Although hesitant to answer, he denied having a weapon. Officer Palmer then instructed Pinner to “stand up and keep his hands up” where they could be seen; Pinner complied and Officer Palmer saw the butt of a gun in Pinner’s front pocket. Officer Palmer secured the weapon and detained Pinner for further investigation.

Pinner was subsequently “arrested and charged with class A misdemeanor carrying a handgun without a license enhanced to a level 5 felony due to a prior felony conviction.” During trial, he sought to suppress the discovery of the gun by “contending the search and seizure were conducted in violation of both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.” A trial court denied Pinner’s petition, and an Appeals Court handed down “a divided opinion.”

The ISC observed:

At the time the officers approached, Pinner was seated alone on a bench with a wall behind him. Both officers were in full uniform and stood in front of him—one flanked on either side. Although nervous, Pinner made no furtive or suspicious movements, nor did he reach for the weapon; and he made no attempt to flee. The officers introduced themselves, immediately stated that they were searching for a man with a handgun, and asked whether Pinner was in possession of such a weapon. When Pinner answered negatively, Officer Palmer directed him to “stand up” and “keep his hands up high.” Assuming for the sake of argument that on these facts Pinner was “free to disregard the questions and walk away,” the encounter quickly shifted from a supposed consensual encounter to an investigative stop. … And such a stop is permissible if, based upon specific, articulable facts, the officer has reasonable suspicion that criminal activity “may be afoot.”

The court added, “Assuming without deciding the tip from the taxicab driver was reliable, the threshold question is whether the mere allegation that Pinner possessed a handgun—without more—is sufficient to establish that Pinner ‘[wa]s, or [wa]s about to be, engaged in criminal activity.'” The court then ruled that the mere possession of a handgun was not sufficient to establish that Pinner was “engaged in criminal activity.”

ISC issued a conclusion that makes clear that the privacy protections of the Fourth Amendment cover those exercising Second Amendment rights, too. The opinion said, “We conclude the evidence [against Pinner] was obtained in violation of the Fourth Amendment and thus the trial court erred in denying the Defendant’s motion to suppress. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.”

AWR Hawkins is the Second Amendment columnist for Breitbart News and host of Bullets with AWR Hawkins, a Breitbart News podcast. He is also the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at


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