Jailed for Bulge in His Pocket. Interesting WA State Supreme Court Ruling.

[Conn. Trooper]

Quote:
My point is the officer shouldn't have been there in the first place. Had no reason to stop and fish. Had the officer had a reason to stop the man, not under the guise of a social contact, a real RS reason he could have Terryed his little hands away, without asking for consent.

IMO. The court is saying that absent RS or PC, you can't stop someone using the "social contact" as bait for you fishing trip.

Yup, spot on.

No, not exactly. Cops can talk to anyone, people are also free, barring a reason for lawful detention, to walk away. This guy didn't.


Quote:
Cops don't need a reason to talk to someone. They can approach and talk to anyone

OK, Given that is true then; If you approach me at 2300 on a sidewalk and I do not wish to have a "social interaction" are you simply going to let me walk away? Yes. Thats what I have been saying all along.

If so, then why the "interaction" if not, then why does it not qualify as a fishing expedition ? I am either free to leave, or not. Without some RS, or PC, then your gun and badge are useless, and I can tell you to go pound sand, correct? Already explained, look at my post to hogdogs regarding the multiple reasons to contact somebody on the street. There are many, many reasons a cop would stop and talk to you on the street. No, you are not compelled to reply, unless you are required to by state or local laws, and the cops would have no basis to detain or arrest unless there was some other reason for it. Fishing expeditions have solved many crimes and taken lots of bad guys and contraband off the street.

If not then please elaborate.


Quote:
Consent does need to be given freely, but there was plenty for a Terry Stop after the bs story and touching of the bulge

OK, lets suppose that you asked me where I was going/coming from, and I told you that I did not think that was any concern of yours? what then ?
Need any police assistance? Car broke down, need directions? No? Ok then. Have a good night citizen!

Again, please elaborate.


Quote:
If you are walking down the street at 11 p.m., give a bs story and continually touch an object in your pocket ( which is a known mannerism of someone concealing contraband), then yes I would tell you to take your hands out of your pockets and there is not a court in the land that would fault me.

Um, there is at least one court that would. The point you don't seem to grasp is that unless you have RS or PC to legally detain me, I can tell you "I am going to grandmas house with a basket of goodies", or "to the moon" for that matter, as it is none of your business at that point. That pesky constitution is a pain isn't it ?

The sarcasm makes you look childish. I would like to see where I said I would detain you for walking down the street. Or not answering questions. Thats the point you can not seem to grasp. I have said many times that if the person said nothing, or gave a credible story, the interaction would have ended there. This guy gave a bs story and continually touched the item concealed on his person. After that, and given that set of circumctances, I would do a Terry Stop. Not for just walking down a street or not answering questions. The court found no issues except for the second officer being there. Not the initial encounter, the frisk, or anything else. Plus, this case only applies to Washington State, not the rest of the world.

If you are in a neighborhood where people are not normally walking at 11 at night, give a bs story and continually touch an item concealed on your person, I have all the reason in the world for a Terry Stop and a frisk for weapons for my safety.And if you think that the police everywhere and Washington State in particular are not concerned for their safety, you are a fool.

[ilbob]

I don't have a problem with the cop taking a closer look at something that was a bit unusual.

However, as long as we are not doing committing a crime, we are pretty much allowed to do as we please, unusual or not.

The thing is there is no way to know with any certainty just how coercive the search was. I am guessing it was substantially more coercive than what the cops are claiming.

I think the court got it right, although it may have been a close call.

I don't buy the cop ESP theory either, since there is no real evidence (anecdotal evidence is not actual evidence) that cops have any special talent in discerning criminal as opposed to mere unusual behaviour.

If my work schedule changes, I might well be the guy walking in my neighborhood when few people do. Does that give the local cops the right to hassle me? Of course mostly I just give a friendly wave if I see one while I am out on one of my near daily walks, which probably makes me look less suspicious. I sort of like having them pass through the neighborhood. Helps keep the riff raff out.

[NavyLT]

Originally Posted by Conn. Trooper

The court found no issues except for the second officer being there. Not the initial encounter, the frisk, or anything else.

Then exactly how do you explain this statement made by the court in the opinion:

Requesting to frisk is inconsistent with a mere social contact. If Reiber
felt jittery about the bulges in Harrington’s pockets, he should have terminated
the encounter—which Reiber initiated—and walked back to his patrol car.
Instead Reiber requested a frisk.


It seems as if the ONLY people totally hung up on the second officer being there are the cops that are posting here! (you and Erik)

Where in this statement by the court from the opinion do they mention the mere presence of the second cop?

When Reiber requested a frisk, the officers’ series of actions matured
into a progressive intrusion substantial enough to seize Harrington. A
reasonable person would not have felt free to leave due to the officers’ display
of authority.

The court has a problem with the ACTIONS the officers took, not the PRESENCE of the officers.

Originally Posted by Conn. Trooper

Not the initial encounter, the frisk, or anything else.

It would seem to me that from the above excerpts from the court opinion that the court had a HUGE issue with the frisk.

[Erik]

I said I would bow out...

But seem compelled to point out that the series of actions noted by the court led to their ruling; a narrow ruling. Change anything in that series of actions and the scope of their ruling changes. Thus, a scenario identical but for a change in the series of actions is not necessarily covered by the ruling. The only action in the series which could be changed while preserving essentially the same outcome? The removal or distancing of the cover officer. I see that. No doubt CT sees that. Hence we've seized upon it. As it turns out legal counsel in Washington (agency lawyers, prosecutors, etc - officers of the court "proper") has seized upon it too.

Another change that would arguably change the scope of the ruling? The articulable facts recorded by the officers; why certain actions were undertaken. Flesh those out, being specific and descriptive, and the narrowness of the ruling will not necessarily apply.

Finally, leave the series of actions in place but for the last; don't ask consent to search. Either discover a reason to move from into non-consensual ground or do not ask/act.

Those are the options, the gist of them at least, being circulated to the field by the state of Washington. Lawyers can mull it over and hash it out. Judges will make rulings one way or the other. Until then, the profession takes its legal cues from officers of the court "on our side" and assumes their input to be consistent with the letter and spirit of the law(s). Just keep copies...

Now. Really. I'm bowing out.

[NavyLT]

You and CT are the only two on this forum that see it that way. And you and CT are no more qualified (by the virtue of being LEO) to make decisive statements then any of the rest of us. Now, if you were lawyers or a judge, then MAYBE we might be able to assign more credibility to your opinions. But, as it is, we are all just playing internet/armchair lawyers.

[Dust Monkey]

If the cop had RS or PC, a reason to pull a u turn and stop the citizen, this would not have blown up into a Charlie Foxtrot.

Cop sees someone walking down the street at 2300. Bad area, street corner has been known to be used for drug buys or hooking, or the cop recognized the person as a known druggie or bad guy. RS established. No need to ask for consent to search, Terry stop away. Contraband found is legally obtained. Simple and to the point.

Cop sees a person walking down the street at 2300. Nothing out of the ordinary, person is not recognized as a known bad guy. Just a person walking. No reason what so ever to pull a u turn and say what's up, have a social contact and talk about the weather or the latest ball game. Thus any contraband found does not exist in the eyes of the court.

This stop was a investgative stop/fishing trip under the guise of a social contact. How many social contacts start with one person asking the other "Where are you going to/coming from?". That's not social.

[OuTcAsT]

Cop sees a person walking down the street at 2300. Nothing out of the ordinary, person is not recognized as a known bad guy. Just a person walking. No reason what so ever to pull a u turn and say what's up, have a social contact and talk about the weather or the latest ball game. Thus any contraband found does not exist in the eyes of the court.

This stop was a investgative stop/fishing trip under the guise of a social contact. How many social contacts start with one person asking the other "Where are you going to/coming from?". That's not social.

EXACTLY! thus the ruling. I realize it must be difficult for a LEO to admit this was a bogus stop....but it was, the court saw that , and issued a ruling. get over it and stop trying to explain it away. Resistance is futile.

The sarcasm makes you look childish. I would like to see where I said I would detain you for walking down the street. Or not answering questions. Thats the point you can not seem to grasp. I have said many times that if the person said nothing, or gave a credible story, the interaction would have ended there.

Please point those out as I have seen nothing to the contrary. Nothing in your posts points in either direction, and please refrain from the ad-homs.

[Conn. Trooper]

Cop sees a person walking down the street at 2300. Nothing out of the ordinary, person is not recognized as a known bad guy. Just a person walking. No reason what so ever to pull a u turn and say what's up, have a social contact and talk about the weather or the latest ball game. Thus any contraband found does not exist in the eyes of the court.

Absolutely. Said that already. But that's not what happened. That's the problem that you guys are not grasping.

1) Cops dont need a reason to stop and talk to anyone. People don't have to engage, this guy did, to his own detriment. Not saying that anyone has to talk to the police if they choose not to. This guy did.

2) Guy didn't keep walking or provide a credible story. He gave a bs story. He continued to touch the bulge ( again, a known mannerism of people concealing contraband).

Given that set of circumstances, not broad daylight, no elevators, no " Thanks Officer, but I don't want to talk.", and I would Terry Stop all day long.

[Conn. Trooper]

Please point those out as I have seen nothing to the contrary. Nothing in your posts points in either direction, and please refrain from the ad-homs.

Read Post #101. And please don't insinuate that I have some intent to bend or circumvent the Constitution.

[Conn. Trooper]

Guys, call me crazy but I have had enough of the anti-cop sentiment that comes out on here. It has been hinted that I am the gestapo, shredding the constitution and violating the rights of citizens at will. Had enough, bowing out.

For your viewing pleasure.
http://www.youtube.com/watch?v=tbrZgJayHqI

[Al Norris]

Once again, I'm forced to side with our LE members.

The decision by the WA Supreme Court was wrong. If it is appealed, either the 9th Circuit or the Supreme Court itself will overturn it.

There is absolutely nothing wrong in an officer making a social contact with a citizen. Nor is there anything wrong in that contact escalating from social to RS for a Terry Frisk.

Nothing in the court proceedings says the officer stopped Harrington and immediately began interrogating him. The consensual conversation lasted somewhere between two to five minutes. During this time, some questions were asked that Harrington answered. Those answers didn't make sense to officer Reiber.

Early on, according to the Court, the officer noticed bulges (plural, as in more than one), in Harringtons pockets. Harrington continually put his hands in his pockets, which Reiber asked him not to do.

It was the totality of the defendants answers and actions that caused a suspicion of unlawful activity to arise. At this point, officer Reiber did not think he had adequate articulable reasonable suspicion for a Terry frisk, so he asked Harrington if he could pat him down.

Now I don't know about you, and I am not LE or trained in any enforcement procedures. But a man who has given bogus answers to simple questions, a man who has something in his pockets that he keeps wanting to finger, I have to wonder if he has weapons there. I don't find that asking the man, for my own safety, to pat him down, to be unreasonable, given the totality of the encounter, so far.

Harrington had some choices to make. He could deny the frisk and proceed. According to the Court, Reiber even told Harrington this. Harrington chose however, to consent to the frisk, instead of simply walking away.

The Court contends that Harrington was by this time, intimidated, by the officers. Reiber was 5 feet away from Harrington, up until the frisk. Reiber did not block Harrington in any manner. The State police officer was even further away and never came any closer, nor did he block Harringtons path.

The question I ask, would a reasonable man be intimidated by two officers who have made no attempts to block my egress? They are not in Harringtons face. They are not using loud or boisterous talk. In fact, the State trooper is merely observing from a distance and there is no discernible contact between him or Harrington.

I live in a predominately Hispanic neighborhood. I have been stopped a time or two, walking home from work, late at night. I have never felt intimidated, because a newer city cop didn't know me and wanted to know why a white guy was out in a Hispanic area, late at night.

I don't buy the intimidation factor.

Regardless, when Harrington consented to the frisk and then volunteered to the officer what the "bulge" was, Reiber had Probable Cause to arrest Harrington for possessing a controlled substance.

What started as a "social contact" escalated from not quite ARS directly into PC for arrest. Happens every day of the week, multiple times, and is good police work.

[Dust Monkey]

We will have to agree to disagree. IF the officer had a reason he could articulate, RS/PC to make the initial contact, I would have no arguement. The court made a great decision. Saying you can't use the social contact as an excuse to do an investigative stop. That's what happened here.

During this social contact the officer asked the man to keep his hands out of his pockets. Why? If this is a social contact there ia nothing to fear, no RS/PC to back up officer safety cries.

There was no one reason stated as to why this cop wanted to chat with this man. Was he wearing a team jacket that the officer supported? Was the officer bored? If we let a social contact go down the path that an officer can frisk for officer safety, It will be misused more than it is now.

Here is my take on what happened. Officer has a spidey sense moment and pulls a u turn. Decides to engage the person in conversation to develop RS/PC or, like he did, ask for consent to search. That is an investigative stop. Except the officer did not have a reason to do so.

Now all of you current LEOs saying you have a right to stop anyone and converse, sure you do. But when did you all become so social? I've read several times that today's LEO are on social with other LEOs. Sorry. I just don't buy it.

And the statement that many if crimes have been solved by hunches. I'm sure they have. And if the suspect in those cases had $$ for a good lawyer he would most likely have walked, just like the guy in this case, due to crappy police work, I mean hunches. Spidey sense, gut feelngs and hunches do not cut it when you are dealing with the rights of citizens. Either you have a reason you can plainly state as to why you stopped a citizen from his normal routine or you don't. It's that simple IMO.

Antipitas, I guess this one is done. Might as well close it before it degrades. Good debates on both sides. And I have been enlightened and scared at some of the responses to this.

[zukiphile]

1) Cops dont need a reason to stop and talk to anyone. People don't have to engage...

CT, I think that works as an accurate statement of law, but do you think it is true in fact as well as law?

[NavyLT]

CT, I think that works as an accurate statement of law, but do you think it is true in fact as well as law?

Only if the "subject" of the social interaction knows the law and knows their rights.

[zukiphile]

Only if the "subject" of the social interaction knows the law and knows their rights.

What if the subject knows the law and his rights, but doesn't want a "wood shampoo" for offending the PO?

What if the subject knows the law and his rights, but the PO uses the obtuse denial of social interaction as the basis for greater scrutiny and investigation?

In either case, is a subject free not to engage?

[Hkmp5sd]

A cop can initiate a consentual encounter, same as any private citizen. A citizen is free to decline to engage in said encounter.

Let me get this straight, after reading through several variations, if I am walking down the street and a LEO approaches me and engages in a conversation, I am free to just say "not interested" and keep on walking?

Yea, right.

Simply being nervous while in this "consentual encounter" is enough probable cause for the LEO to search me for "his and my safety"?

[Dust Monkey]

HKMP5sd. Well said. And that's why the cops like it and will buck any challenge to it.

[Al Norris]

Originally Posted by Dust Monkey

Antipitas, I guess this one is done. Might as well close it before it degrades.

You've called it.