details, audio, and questions regarding my open carry case

[Michael Porschien]

You may have already seen the video I took (until my phone was confiscated) of my open carry stop on 8/30/12. I am starting this new thread to give you some background, and more details, for a more complete story: I’m 22 years old and go to college in Youngstown, Ohio. Since I am a Pennsylvania resident and can’t get an Ohio CCW license, I decided to study open carry. After reading a number of articles and forums, I decided I would open carry, but if I was stopped by the police I would try to cooperate, rather than challenge. That didn’t work so well.

On August 30th, 2012, at around 10:40 PM, I openly carried my Beretta 92A1 9mm with the intention of walking to a nearby McDonalds to get a late dinner. About 5 minutes into that walk, (10:45), I was detained by Officer Menichini of the Youngstown City Police department. I say "detained" because the officer briefly pulsed his overhead lights as he was driving behind me. Up until that moment, i assumed the car i heard behind me was just another person traveling on the roadway. The video picks up just after the officer gets out of his car.

http://www.youtube.com/watch?v=lOSocHUR ... e=youtu.be" onclick="window.open(this.href);return false;

Immediately following the end of this video, I was pushed against the police cruiser and searched, by a Det/Sgt John Payne of the Youngstown City Police (the officer who took my phone from me), who found that I was carrying a Gerber paraframe 4 inch, non serrated, stainless steel finish pocketknife, clipped to the outside of my belt, behind my left handed holster. Analysis of the audio i received as a result of my records request shows that i was off in my estimation of the total detainment time between the pulsed lights and the formal arrest. It was about 25 minutes later, (not my initial estimation of 40-45) at 11:09, after sitting in the back of a police car listening to a number of officers discuss what they could charge me with, that I was charged with CCW for the knife, and a jaywalking ticket, presumably to give the officer RAS for the stop and search. During the intervening time, the officers had called YSU officials (on a line that was not recorded), as well as someone in the police department, to discuss possible avenues of prosecution. Both of these calls occurred after i had been searched, and after i was put in the back of the car, without handcuffs, but also without being accused of a crime.

Being charged with a crime is not like in Law and Order. When you are charged with a crime, you’re handcuffed and tossed into the back of a police cruiser, with no seatbelt. You’re taken to jail and made to stand with your hands on a table while you are touched in inappropriate places by men you have never seen before. You’re tossed in a concrete room for hours, fingerprinted, photographed, and told you have mere hours to sleep and prepare for your arraignment. You’re told to plead with next to no counsel, and are asked, publicly, by a judge about your financial situation and ability to shell out thousands of dollars for an attorney. After all of this, you are told by that attorney to go home, to await the pre-trial. And then you wait.

Perhaps the cruelest part of all this is the waiting. It’s been two months so far, with my pictures online, my name plastered on the local news, and my record smeared with an arrest for a crime that I not only didn’t commit, but that the police had no RAS to stop me for in the first place. I’m still waiting, waiting and, frankly, hoping, that I made the right choice in how I acted during that initial encounter. My video, and the choices I made during it, are my only defense. It may be partly bitterness, and i apologize if so, but I can't help thinking that if I had acted differently, if I had flexed my rights, things may have turned out differently, and possibly for the better.

My hope is that my story will serve as a counter-argument to the assurances of others - that if you cooperate you will not be harassed further or charged, or that if you are, the charges will quickly be dropped. I also hope that those same people will be the first to step forward and assist me. As can be clearly seen, I was not only cooperative, but also reasonable and accommodating. I wasn’t committing a crime, I was hungry. I didn’t feel I had anything to hide, so I trusted the police to be as law-abiding as I was. But it’s clear that I was wrong to do so.

There have been two hearings so far – prior to the first, my court-appointed attorney asked me to waive time because she felt that the prosecutor would see that the charges against me were bogus – arising from police officers opposition to the act of open carry rather than actual law enforcement.. Unfortunately, that didn’t work, so at the hearing this past Tuesday, Oct. 23, I was asked to waive time again. This time my attorney told me that the prosecutor wanted to review my videotape. I asked her what my options were, and she said she could probably have it resolved quickly if I plead guilty to disorderly conduct. I didn’t feel that was an real option, and didn’t ask what would happen if I refused to waive time again, so I agreed.

Right now I feel like I’m being played with, that despite my cooperation I’m just the latest victim of police and prosecutors who either don’t know the law, or know it and use their protection (immunity) against those who do things they don’t like. I am working on getting the police report in a form that I can post, and also to get the radio transmissions to and from dispatch transcribed accurately.

I will be at work for the rest of the day, but will visit this page as often as i can in the coming days. In the meanwhile I’m open to all suggestions, and thank you.

[JediSkipdogg]

I will help with the transcribing if needed. You already have my e-mail if you need assistance that way.

So if I follow this correctly, you took the plea deal?

[mreising]

I will help with the transcribing if needed. You already have my e-mail if you need assistance that way.

So if I follow this correctly, you took the plea deal?

I think he meant he agreed to waive timely trial again.

[Werz]

On August 30th, 2012, at around 10:40 PM, I openly carried my Beretta 92A1 9mm with the intention of walking to a nearby McDonalds to get a late dinner. About 5 minutes into that walk, (10:45), I was detained by Officer Menichini of the Youngstown City Police department. I say "detained" because the officer briefly pulsed his overhead lights as he was driving behind me. Up until that moment, i assumed the car i heard behind me was just another person traveling on the roadway. The video picks up just after the officer gets out of his car.

http://www.youtube.com/watch?v=lOSocHUR ... e=youtu.be" onclick="window.open(this.href);return false;

OK. I watched the video. And I have some thoughts. First, your biggest problem is your knife. You stated:

I was carrying a Gerber paraframe 4 inch, non serrated, stainless steel finish pocketknife, clipped to the outside of my belt, behind my left handed holster.

A jury will probably look at that Gerber Paraframe and say "deadly weapon." Yes, you can argue to the contrary. But you will be fighting an uphill battle. I can carry my Gerber Ridge or CRKT H.U.G. clipped to the inside of my pocket without too much worry of that being an issue, but the Paraframe is going to be a lot harder to sell as a "utility knife." The real question is concealment. It appears that Youngstown does not have an ordinance with the standard 2.5-inch limit on blade length, so CCW under R.C. 2923.12 was their only option. The issue, then, is whether it was "in plain sight." A jury will be instructed:

"Concealed" means that the deadly weapon was out of sight or so hidden that it could not be seen by ordinary observation by others near enough to see it.

So when you say it was "behind" your holster, does than mean underneath your holster where nobody could see it, or was it clipped with body of the knife outside your belt and to the rear of your holster where anyone viewing you from behind could have clearly seen it? If the latter, did you have a shirt or jacket draped over it? If not, that is an important point and may be worth a trial.

As to those who are advising you to file an affidavit for Aggravated Robbery for the officer taking your phone, don't listen to them. It's great to be a foaming-at-the-mouth activist, but they don't understand the legal issues, and doing something like that will just get you pegged as a goofball. The most important thing for you to do is to maintain your credibility. But that does not mean the officer was right. They're just barking up the wrong tree.

R.C. 2921.12(A)(1) states:

No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall ... [a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]

It is very clear from the video that the second officer knows that you are recording the encounter, and that his seizure of your mobile telephone was to prevent any further recording.* So don't discuss bogus criminal charges; call it what it is. If your lawyer has seen that video, it should be clear to her that is what is happening. It will probably have an even greater effect on the judge because judges really hate it when police officers attempt to suppress relevant evidence. And making a point to the prosecutor about the potential criminality of that act, not to mention the officer prejudicing your right to a fair trial, may have a powerful effect. But be sure that your lawyer has provided that video to the prosecutor on discovery. Defense attorneys have a knee-jerk habit of hiding everything until the last minute, even when it may be contrary to your best interest. In my opinion, that very last portion of the video may be your best chance of making this case go away, but the prosecutor needs to see it before that will happen.

Finally, please don't go daydreaming about the huge judgment you will get in suing the City of Youngstown and how it will pay for the rest of your college education. That is very unlikely, regardless of what the "experts" on OpenCarry.org tell you. And attempting to play that card will just make it more unlikely that your charges will go away.
____________________

* In a continuous six-second stream, the second officer said:

Put the phone ... put that phone down. Put the phone down and turn it off right now. As a matter of fact, I'll confiscate it.

[Michael Porschien]

So if I follow this correctly, you took the plea deal?

I did not, i allowed them to schedule a third pre-trial.

R.C. 2921.12(A)(1) is very interesting, and i thank you for bringing it to my, (and thus my attorney's), attention, although one could argue that stopping a recording did not "alter, destroy, conceal, or remove" any evidence. What he did was prevent further evidence from being collected. Unless you argue he "removed" a "thing" with purpose to impair its value and availability as evidence... is that too vague? Or perfect for the courts...? Anyway.

The knife was behind my holster, meaning the holster was further towards the front of my body on the belt. i have to reach my hand further back to grab the knife compared to the firearm, in other words.

All of these things being said, i want to state now that this thread's purpose is not to argue the lethality or suppressionability (word?) of the knife; that horse was very thoroughly kicked in my original thread. My lawyer was thankful for the case law and extensive research that the collective here at OFCC did, though she did dig up most of it herself. What i want to discuss here is the legality of the stop itself, and why it happened in the first place. Towards that end...

I do not have access to a scanner, so i cannot at this time make a PDF file of my arrest report. I have been trying to find a scanner that i can use for several days with no luck. I can, however, type it out, redacting personal information. I will at some point find a Kinkos or something downtown.

Begin report:

Arretee: Michael Porschien
Date / Time arrested: 8/30/12 at 22:50
Location of Arrest: Madison Ave @ Michigan Ave
Arrest type: crime in progress

Arrestee notes: On 8/30/12 at 22:45 hrs YPD car 103 officer N. Menichini was on routine patrol traveling westbound on Madison Ave approaching Michigan Ave. At this time, officer Menichini observed a male white ( who was soon identified as Porschien, Michael) walking westbound on the north side of Madison Ave and it was immediately apparent that Michael was carrying a large handgun in a black holster on his left hip. Officer Menichini proceeded to turn northbound onto Michigan Ave. Officer Menichini pulled into a driveway on Michigan Ave to turn around, at this time he observed Michael proceed into the middle of Michigan Ave from the sidewalk, then stand on the cement median, and then proceed to the corner of Madison Ave and Michigan Ave where he stood on the sidewalk watching officer Menichini pull up toward his location.

As officer Menichini was approaching Michael, he began going into his front pants pocket then to his rear pants pocket. As officer Menichini exited the vehicle, he reached into his front right pants pocket and pulled out a black cell phone. Officer Menichini inquired as to why he was carrying a firearm and he stated "I am open carrying" and when officer Menichini asked him to clarify, he stated "because this is a dangerous town." At this time Det/Srg J. Payne, and YPD car 104 officer C. Eggleston, and P. Skowron arrived on scene. Due to the fact that Michael was carrying a handgun, officers were concerned for their safety and his safety, Det/Srg, Payne extracted Michael's firearm, cleared one round from the chamber and dropped the magazine carrying 15 rounds and secured the firearm inside marked car 206W. Det/Srg. Payne conducted a pat down for any other weapons and it was discovered during the pat down that Michael was concealing a knife (fold down blade) that was clipped to his belt in the front and was covered by his t-shirt. Det/Srg/ Payne also discovered an extra magazine containing 16 live rounds from his rear pant's pocket.

Officer Menichini placed Michael in handcuffs property gapped and double locked and placed in the rear of marked car 206W. Per Det/Srg. Payne officer Menichini charged Michael with Carrying a Concealed weapon (knife) ORC 2923.12 M-1, and Walking in the Roadway when a sidewalk is provided ORC 4511.50(A), MM. Michael was transported to Mahoning County Jail via YPD car 206W without incident. Officer Menichini logged the knife as evidence and the firearm and ammunition for safe keeping in the 2nd floor YPD evidence room.

It should be noted that when officer Menichini observed Michael walking on Madison Ave (with the handgun in plain view) he was approximately 100 yards from Lyden house (Youngstown State University Dormitory) and he was approximately twenty to thirty yards from several houses on Michigan Ave with several people gathering outside each house. These houses are usually rented to Youngstown State University Students.

End Report

I want to point out a few things, before i head to sleep.
1: The arrest time as noted at the top of the report is off by approximately 20 minutes. i can prove this with the headers on the audio i received from dispatch. (They will be up soon, i promise!)
2: The report mentions that i pulled out my phone, but not that it was taken from me. Why does anyone think that is? i can't figure out why they would record half of the story, especially a story that ends so badly for them.
3: The report says that i was on the sidewalk, yet they charge me with walking in a roadway. Also, note that in the video, no mention of the sidewalk was evident. I was never asked a question about crossing the street, nor was my movement in any question at all, until i was formally charged.
4: The report does not give a reason for the search. Officer safety could presumably be a potential, if sketchy, reason to temporarily take the gun, but not to lock it in a car and certainly not for a further search of my person.

[synack2]

I think that walking down the street with and open carry is a legal activity. Why did they stop you for doing something legal? If they stopped you for j-walking then why did they never ever mention it in all that time.

I also would ask was the knife covered by your t-shirt before they removed you weapon. I often carry a knife on my belt in about the same place when I open carry, but When my gun is in I tuck my shirt behind it. If you removed my gun my shirt would fall down and cover the knife.

I also think it would have helped you case if you would have immediately said I don't consent to searches as soon as they threw you against the car. The one time an officer removed my firearm, I immediately said you may remove the firearm, but I don't consent to searches.

Also my only answer to "Why do you have a gun?" "It is for my protection." while I give them the "Isn't it obvious? look" I never tell them it is "Raise Awareness" etc. You can walk down a slippery slope if they think you are and "activist" trying to make a statement with a gun, thanks to the NDAA

[JediSkipdogg]

I have to say, NO PLEA DEALS!!!!!! Stand strong and you have my support 100% of the way. I'm from Cincinnati and can't offer much in terms of personal service but you have any support I can offer you. I've assisted in what I have through email already but have no problem doing anything else that I can as well.

[Werz]

All of these things being said, i want to state now that this thread's purpose is not to argue the lethality or suppressionability (word?) of the knife; that horse was very thoroughly kicked in my original thread. My lawyer was thankful for the case law and extensive research that the collective here at OFCC did, though she did dig up most of it herself. What i want to discuss here is the legality of the stop itself, and why it happened in the first place. Towards that end...

Do you want to discuss it for academic purposes? Because - make no mistake - the "suppressibility" of the knife and the "legality of the stop" are the same issue. Your counsel has 35 days after arraignment to file a motion to suppress evidence. Crim.R. 12(D). That time period can be extended by the court to allow your counsel to uncover all the relevant evidence, and the court will probably grant an extension for that purpose, but your counsel already filed a discovery request on 09/05/2012, with a supplemental request on 10/01/2012, so if a suppression motion is going to be filed, it had better happen soon, or that ship will have sailed. Know this: she will not be arguing the United States Constitution and all sorts of case law to a jury. I know a lot of people around here envision those things happening, but those are questions of law, to be decided by the court, and a jury is the "trier of fact": the jury does not decide those issues. We can argue the "legality of the stop" all day long in this forum, but if that issue is not raised in a suppression hearing, it will not make any difference in how your case is decided.

The report mentions that i pulled out my phone, but not that it was taken from me. Why does anyone think that is? i can't figure out why they would record half of the story, especially a story that ends so badly for them.

That's easy. They do not want to acknowledge that you were using the phone to record the encounter. That is why it is essential that the prosecutor be given a copy of the recording. It concerns me that you have said nothing about that recording being given to the prosecutor, or even that you have informed your attorney of the recording. I hope that no "internet lawyer wannabees" have told you to use the video as a "trial surprise" because, under Crim.R. 16, that will never happen, and you will be totally screwed in terms of getting it into evidence, particularly if it becomes evident that the video has been available and on YouTube since the very beginning of the case.

Edit:

The report says that i was on the sidewalk, yet they charge me with walking in a roadway. Also, note that in the video, no mention of the sidewalk was evident. I was never asked a question about crossing the street, nor was my movement in any question at all, until i was formally charged.

I think they're "winging it" with that charge, looking for a probable cause violation for the stop, and not being able to adequately apply the traditional "jaywalking" charge. If I was you, I would be out taking photographs of the area where this occurred: the sidewalks, the street, the median, the nearest intersections in both direction, any traffic control devices or crosswalks at those intersections, etc. If you don't have a decent camera, use your phone cam. It could come in very handy. The fact that you could hear them talking about the appropriate charges, and that you were prevented from recording those conversations with your phone, might also come in handy.

[Werz]

I also think it would have helped you case if you would have immediately said I don't consent to searches as soon as they threw you against the car.
* * *
I never tell them it is "Raise Awareness" etc. You can walk down a slippery slope if they think you are and "activist" trying to make a statement with a gun, thanks to the NDAA

Why do think that one of those statements would peg you as an activist and not the other?

If they have probable cause to search you, or reasonable articulable suspicion to support a limited pat-down, your consent or lack of consent makes no difference. "[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). "I do not consent to a search" is not necessary for a lack of consent, and the government has an affirmative burden to establish consent. So why do people say that? Because they hear it on YouTube videos. Normal people don't say that in real-world situations; only "activists" say that. Hence, my question.

[DontTreadOnMe]

"I do not consent to a search" is not necessary for a lack of consent, and the government has an affirmative burden to establish consent. So why do people say that? Because they hear it on YouTube videos. Normal people don't say that in real-world situations; only "activists" say that. Hence, my question.

Because it refutes allegations of implied consent.

[Werz]

"I do not consent to a search" is not necessary for a lack of consent, and the government has an affirmative burden to establish consent. So why do people say that? Because they hear it on YouTube videos. Normal people don't say that in real-world situations; only "activists" say that. Hence, my question.

Because it refutes allegations of implied consent.

My point relates to what it sounds like. Even implied consent usually requires some verbal or non-verbal indicator. You don't need a talismanic phrase that makes you sound like a wind-up toy. "No" and "I don't want you to do that" will work just fine. The more natural and less "prefabricated" you sound, the more likely you will be perceived as someone who didn't think he was doing anything wrong, and the less likely you will be perceived as someone who was out to prove something. It is quite possible that you can win the battle (on the legitimacy of open carry) and lose the war (on some ancillary charge), which is usually how these things play out. Contrary to the black-and-white conventional wisdom of many open carry gurus, it is important that the trier of fact - be it judge or jury - genuinely likes you, and the recording you make of the encounter may be needed for more than just the suppression hearing.

Frankly, I think Mr. Porschien came off as polite and reasonable, and the second officer who grabbed his phone came off rather badly. That's a good position to be in.

[djom1cincy]

Let me say sorry that you have to deal with this problem. Your stop has tought me a lesson for open carry. Hopefully I'll never be in your shoes. I do have one question. Did they give your firearm back after posting bail or are they still safe keeping it?

[Chuck]

Werz is giving good advice here

Thank you mods,,,,

[OhioPaints]

I am not sure whether to laugh, or cry. The man is carrying a handgun and they charge him with carrying a pocket knife It is truly sad that our laws are such that we have to worry about the technicalities of something as common and useful as a pocket knife.

We have a farm here and animals. I always carry a pocket knife. Sometimes for hay bales or feed bags, but I've also used it in an emergency to free a horse tangled in a rope. It's a truly sad state of affairs that I could be charged with a crime for having it in my pocket.....

Yes, I know that I have a tool, but that obviously doesn't stop a cop from arresting me, claiming it is a concealed weapon. Even having a CHL doesn't make it legal.....

Ken

[deanimator]

"I do not consent to a search" is not necessary for a lack of consent, and the government has an affirmative burden to establish consent. So why do people say that? Because they hear it on YouTube videos. Normal people don't say that in real-world situations; only "activists" say that. Hence, my question.

Because evidence shows that some cops won't hesitate to LIE and claim you DID consent.

Unambiguous denial of consent documented by audio pretty much forecloses that.