Was the gun concealed or conspicuous?
That question was the subject of a hearing in Madison County Common Pleas Court on Thursday
Marcus Toles, 23, of London is charged with carrying a concealed handgun in the city on Feb. 1.
In paperwork filed in July, defense attorney Josh Peistrup asked Judge Eamon Costello to throw out evidence in the case, saying Toles was carrying the gun legally and in full view when he was approached by Deputy Jacob Gibson on West Center Street.
Peistrup said Gibson had no reason to suspect Toles didn’t have a carry-conceal permit.
Peistrup also said Gibson questioned Toles about the weapon without informing the man of his Constitutional right against self-incrimination — the familiar “Miranda” warning.
Assistant county prosecutor Nick Adkins countered by saying Gibson acted properly in treating Toles as a criminal suspect without advising the man of his Constitutional rights.
Both Gibson and Toles testified during Thursday’s hearing, but portions of their statements conflicted.
Gibson said he was serving routine subpoenas in the city when he cruised passed Toles and saw the butt of a gun sticking out of the man’s back waistband below his raised shirttail. Toles was bent over, unloading the trunk of his car at the time.
Gibson stopped and confronted Toles.
Initially, Toles said he had a permit to carry the gun. However, when questioned further, Toles said he held a carry-conceal training certificate, but never filed paperwork for a permit.
Toles said he bought the gun that day at a Westland Mall show.
Gibson confiscated the weapon that turned out to be stolen.
Gibson did not arrest Toles at the time, but warned the man charges would likely be filed in the future.
Toles testified he tucked the gun into his rear waistband for convenience while moving groceries and stereo equipment from his car to his apartment. He did not intend to conceal the weapon, but was unsure if his shirttail covered the gun.
He said he cooperated with Gibson and other deputies and provided statements because he had no other choice.
Costello ruled Gibson had good reason to believe Toles was carrying a weapon illegally and was correct in confronting the man.
Whether or not deputies failed to properly inform Toles of his Constitutional rights posed a “more interesting” issue, Costello said.
The judge ticked off 10 situations that require law enforcement officers to read “Miranda” warnings to a suspects. He said none matched the exchange between Toles and Gibson.
“He was not in custody,” Costello said.
Jane Beathard can be reached at (740) 852-1616, ext. 1616 or via Twitter @JaneBeathard.