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

[javabum]

What i am hearing is that both peace officers were in the right.
Yes and no.They have the right to contact any citizen for purposes
of a conversation....(ie-what are you doing...where you going and so on)

Now,if asked to be patted down with a back up officer for no other reason
other than officer safety is bull....there was no safety issues with 2 officers and 1 civilian.And if he thought he was in no harm,why the second officer.And that second officer says to me more than a casual stop.And tells me there was a definite detention.

No officer should have the right to stop any one with out proof of PC or
RS.It happens way to often and results in arrests that should not have been
done.I have been stopped for bogus reasons before and instead of taking any crap from the officer i requested his superior (watch commander)and was let go.
So i know he was just fishing for something.

[NavyLT]

Originally Posted by azredhawk44

Yeah, but my understanding of a "Terry" stop is that it is a LEO response to a 3rd party report of "man with a gun."

A Terry stop in response to a report of a MWAG is NOT necessarily a legal response. The officer MUST have REASONABLE and ARTICULABLE suspicion of CRIMINAL activity. Cop gets a MWAG call in an open carry state such as WY, MT, ID, AZ, NM, WA (and others). He responds to the call and sees a person with a holstered firearm going about everyday normal business. There is, at this point, no REASONABLE or ARTICULABLE suspicion of ANY criminal activity. What the cop sees is perfectly legal activity, therefore a Terry stop would be an illegal action to take.

At this point the cop can either sign off his call as - investigation complete - no suspicious activity noted, or he can initiate a social contact with the person, which must remain consensual, and during this social contact has no right to demand a frisk, demand disarming the person, or demanding (in most states) to see an identification document - and if the person refuses to consent to any of the foregoing, there still is no reasonable or articulable suspicion.

[Erik]

Just read the opinion. Bad law.

---

"You, please correct me if I am wrong, imply that an officer can walk up to anyone and fish for a crime., with no suspicion or PC at all."

Correct. Said officer cannot bring the force of his authority to bear at that point, though.

"Why tell a person to keep their hands out of their pockets? Kind of says you are detained and not free to go."

Because weapons are commonly found there. Don't confuse directions: Keep your hands out of your pockets means just that. You are free or not to go means just that. And yes, I have directed people to keep their hands out of their pockets having advised them they were free to go. What to do at that point? Either (a) keep your hands out of your pockets or (b) go, placing your hands back into your pockets when clear of the encounter.

"I don't think it's very reasonable to rely on that unless the officer informs the person that they are free to walk away. Most people will assume that when an officer asks to speak with you that they do so with the force of law."

It is reasonable and a cornerstone of the law surrounding the matter.

Re Terry Stop and Frisks - Edited: See next post.

"Miranda ain't got jack to do with it."

Correct. Miranda is triggered by cops, custody, and questioning. In this instance, the individual encountered was not in custody.

"Not in my home town, city ordinance makes it an arrestable offense to disobey a police officer. You decline talk, or to be searched, he can arrest you for it and search you after he arrested you."

Yes, in your home town. Most everywhere it is an arrestable offense to disobey a police officer, by the way. That said, in this instance no orders were issued or disobeyed, so the point is moot.

[Erik]

Although not germain, Terry Stops and Frisks have been mentioned.

A Terry Stop is an investigative detention of a suspect. LEOs can conduct one with reasonable suspicion that criminal activities is a foot. A LEO can stop a suspect and investigate that person for a reasonable period of time. And, even though that’s not a formal arrest, it is a seizure. The suspect’s not free to leave during that Terry Stop. The LEO os going to control that stop and can even use reasonable force to stop the suspect and keep him there while the LEO does his investigation.

After legally detaining the suspect in that Terry Stop, if the LEO also has reasonable suspicion that the suspect is presently armed and dangerous, then the LEO can conduct a limited search of that suspect’s outer clothing for weapons. Now weapons are basically anything that can be used to hurt the LEO. As such the search is limited to searching for hard objects that the suspect could use to hurt the LEO like guns, pocket knives, mace, clubs, etc. Note, the search is not limited to just those things traditionally thought of as weapons. It could also be things like car keys or pens because those could hurt the LEO as well. If, during the Terry Frisk, evidence of a crime is immediately recognizable as such, it may be used against the suspect. Recently, the concept has been extended to include areas in vehicles.

I hope that helps, even though it clearly was not in play in this case.

[Al Norris]

Erik, I believe part of the disconnect, is that we are all cultured to our own State laws. They do differ. Some appreciatively.

For example, in Idaho, if I were approached by an officer in a social contact situation, I would not have to answer any of his questions. That officer could not use my refusal to answer as RS to pursue. There was no RS to begin the contact and I am under no obligation to the officer, just as I am under no obligation with any other citizen, within the same context.

Did the subject feel coerced into consenting to a search? The WA Supreme Court seemed to imply this, but this was not the question the court was answering.

Was the subjects activities unlawfully disturbed by the social contact? The court said, yes. Everything that followed after was a breach of Art I section 7 of the Washington Constitution.

Is this the final word? Only if the State decides not to seek a writ of certiorari to the SCOTUS (see Brigham City v. Stuart for a reversal of a State Supreme Court decision).

[Destructo6]

Can a cop ask for a consent to search, sure, if said cop has a REASON that he can ARTICULATE why he is there.

If he has a REASON (ie Probable Cause), he doesn't need consent.

Often a cop will use a consentual encounter to develop PC.

However, they will often have every intention of arresting the individual, but start the encounter as though it was consentual, in order to diffuse a situation that could have turned into a fight, if approached otherwise.

No officer should have the right to stop any one with out proof of PC or
RS.It happens way to often and results in arrests that should not have been
done.I have been stopped for bogus reasons before and instead of taking any crap from the officer i requested his superior (watch commander)and was let go.
So i know he was just fishing for something.

Officers have the same rights as you do. Do you think he needs PC to say, "Hello, how are you today?"? That is a consentual encounter and I've arrested countless people after they gave an inappropriate response to that very question (inappropriate response was the beginning of PC). I've also had my curiosity satiated by an appropriate response to the same on a similar number of occasions.

[zukiphile]

A cop can ask to search anyone or anything without suspiscion. A citizen is free to decline.

Do we agree on that or not?

We do not.

We teach children not to speak to strangers, unless they are police officers. As noted above, several states have laws that require anyone to answer some questions posed by an officer.

As a practical matter, one is not perfectly free to to decline the request/instruction of an agent of the state with a gun and the power to arrest you. The likely result of protecting your rights (real or illusory) is that you will be detained.


That doesn't mean that the Idaho rule is the only way to resolve the public policy issue. It does mean that a contact with a PO is distinguishable from ordinary social contact.

Do you think he needs PC to say, "Hello, how are you today?"? That is a consentual encounter ...

Except that the person you are addressing has not consented to the encounter, so it isn't consensual in a conventional sense.

...and I've arrested countless people after they gave an inappropriate response to that very question (inappropriate response was the beginning of PC).

I've had thousands of consensual social encounters, none of which involved the other party arresting me for not liking my response.

That a response to a query from a PO might be PC illustrates the problem with letting POs initiate what is actually an investigation under the pretext of a "social" encounter.

I've also had my curiosity satiated by an appropriate response to the same on a similar number of occasions.

I acknowledge that there are some useful fictions involved in effective police work, but an uncomfortable tension between the reality of police work and protections of one's rights as against the police persists.

[NavyLT]

Can someone post a citation to this Idaho law that allegedly mandates social interaction with a police officer if initiated by that police officer?

[zukiphile]

Can someone post a citation to this Idaho law that allegedly mandates social interaction with a police officer if initiated by that police officer?

I thought the Idaho rule was that an individual need not respond to an officer's query.

In Ohio, the current state of affairs is that a request from a PO for ID or other basic information may not be freely ignored. I doubt that is in the code, but is more likely in Ohio case law.

[Dust Monkey]

Officers have the same rights as you do. Do you think he needs PC to say, "Hello, how are you today?"? That is a consentual encounter and I've arrested countless people after they gave an inappropriate response to that very question (inappropriate response was the beginning of PC). I've also had my curiosity satiated by an appropriate response to the same on a similar number of occasions.

Would you care to give some examples to the above statement. As it stands, you are saying if someone does not answer you in a certain way after you say hello to them, you have arrested this person. That smells.

If he has a REASON (ie Probable Cause), he doesn't need consent.

I understand this. I used to wear a badge. You must not have understood my meaning. A Terry stop/frisk, the officer does not need consent to do. The officer does need to articulate WHY he detained and did a Terry stop.

Can a cop have a conversation with someone and have it turn into a investigative detainment, sure can. This incident was not the case. This Cop (maybe he had Spidey Sense) decided to pull a u turn and detain a citizen without any RS od PC he could articulate. Nonthing. Like I said above. It's akin to driving down a neighborhood street and picking out a house at random to stop at and ask the resident if they would consent to a search of their home.

[Al Norris]

To clarify, there is no law that states a citizen must answer any officers questions.

Outside of motor vehicle laws, Idaho case law makes it clear: An officer must clearly relate to you, that you are being prohibited from leaving the officers presence.

A citizens rights in Idaho are negative rights. That is, the law does not say what you can do, it says what the government cannot do.

NavyLT, search the Idaho codes all you want. Outside of the vehicular laws, you will not see a citizen mandated to do anything upon (social) contact with an officer.

[NavyLT]

OK. Somehow I got confused. Let me ask my question again, please...

How about posting a citation to Albuquerque, NM ordinance which supports the below statement. (I don't know where I got the idea that the poster was referring to Idaho! )

I would like to see any statute or ordinance in the US that states a person can be arrested for refusing consent to search.

Originally Posted by mapsjanhere

Not in my home town, city ordinance makes it an arrestable offense to disobey a police officer. You decline talk, or to be searched, he can arrest you for it and search you after he arrested you.

[zukiphile]

OK. Somehow I got confused. Let me ask my question again, please...

How about posting a citation to Albuquerque, NM ordinance which supports the below statement. (I don't know where I got the idea that the poster was referring to Idaho! )

Let me offer an incomplete response.

I think that writer is mistaken about being legally subject to arrest for not consenting to a search. That is so wide of any norm in the US I've read about as a matter of law, I find it difficult to believe. As a matter of fact, that writer may be accurately relating his experience.

In Ohio, if my memory serves, declining to identify yourself for an inquiring PO will allow him to legally detain you for the purpose of determining your identity. We also have limits on what a PO is supposed to be able to discuss with a target and its relation to his initial reason for stopping and questioning the target.

I am sure this is case law because I would have no reason to review code on the topic.

I believe these state to state differences are what Antipitas referred to about our differing assumptions and experiences pertaining to "social" contact and the rules involved.

[Conn. Trooper]

Unfortunately we don't know the whole situation. Is this neighborhood the type where people are commonly walking around at 11p.m.? Has there been a series of crimes in the area? Does this person fit the neighborhood? Is this a small town and does the Officer know everybody that lives in the area and therefore know that this person doesn't belong? That's not just a fishing for criminals uestion, person could be lost, ran out of gas and needs assistance, etc.

My take, and I know some will think I am defending the cop under any circumstances, is that this is not the neighborhood where people are commonly walking around at 11 p.m. The guy doesn't fit the neighborhood, for whatever reason. The officer approaches him and a consentaul conversation occurs. The person states he is coming from his sister's house yet he doesn't know where that is ( Red Flag #1). He contines to "touch" the bulges visible in his pants ( Red Flag #2, people will instinctively touch and grab contraband concealed on their person, well known mannerism for bad guys). The officer then concerned that the person does not belong in the neighborhood, appears to be untruthful about where he is coming from ( can't remember where his own sister lives) and is grabbing at his pants, asks (thats key, he asked for and was given consent) for consent to pat down the person. When the bulge is felt and he is asked what it is, the person replies that it's a meth pipe, obvious contraband. I don't see a problem with any of this. If at any point it stopped being a consentual encounter there may be a valid argument here.

A side note about officer safety. Having two cops on scene does not mean that there is no longer an officer safety concern with only one subject stopped. One subject shot and killed 4 cops last week in Washington, another shot and killed three in Oakland a few months ago.

[zukiphile]

Is this neighborhood the type where people are commonly walking around at 11p.m.? Has there been a series of crimes in the area? Does this person fit the neighborhood? Is this a small town and does the Officer know everybody that lives in the area and therefore know that this person doesn't belong? That's not just a fishing for criminals uestion, person could be lost, ran out of gas and needs assistance, etc.

I live in a village (population of about 1100) surrounded by a rough urban area. The police here know the residents, and don't make the place too inviting for non-residents. I am grateful for that.

However, often it may not comply with the law to investigate someone for not belonging.

If at any point it stopped being a consentual encounter there may be a valid argument here.

A side note about officer safety. Having two cops on scene does not mean that there is no longer an officer safety concern with only one subject stopped.

The rationale of the opinion was that as more officers are present, the consensual nature of a request for information or a search decreases. Would you disagree?

[hogdogs]

Unfortunately we don't know the whole situation.

Fortunately we do not need to.

Is this neighborhood the type where people are commonly walking around at 11p.m.?

Doesn't rightly matter! I am an individual and thus the common behavior is no concern of anyone! Lemmings are good at common behavior traits and I am not.

Does this person fit the neighborhood?

Would this be a spidey sense thing regarding looks? Or does the pedestrian need his address on the back of his shirt?

person could be lost, ran out of gas and needs assistance, etc.

If I want directions, lift to gas station or assistance I will ask for it... might even flag ol' officer spidey down for the help.

Was the subjects activities unlawfully disturbed by the social contact?

I sure wish we had this clause in the Florida Constitution...
If a cop approaches and tries to initiate a "consensual contact" and I reply that I am not willing to stop to talk, I could be charged with "interfering with a police investigation". If i fail to present ID, I can also be charged. If he asks where I am going or coming from and I reply "I do not think that is any of your business, I might suffer a slip and fall right into a lamp post...
Brent

[Conn. Trooper]

Quote:
Unfortunately we don't know the whole situation.

Fortunately we do not need to.

Then what are we discussing?

Quote:
Is this neighborhood the type where people are commonly walking around at 11p.m.?

Doesn't rightly matter! I am an individual and thus the common behavior is no concern of anyone! Lemmings are good at common behavior traits and I am not.

Not the point, there are places where ANYBODY walking around at 11 p.m. is out of the ordinary. Where I work ( in the sticks mostly) nobody is walking because it's miles to anywhere. If I see someone walking I can readily assume they have broken down or ran out of gas or got stuck in snow, etc. Not the end of the world or a trampling of rights for me to ask if they need help
Quote:
Does this person fit the neighborhood?

Would this be a spidey sense thing regarding looks? Or does the pedestrian need his address on the back of his shirt?

No, thats a common sense thing. There are neighborhoods where certain people do not belong. White, black or green. Has nothing to do with race or color. Again a consentual encounter, would I force someone to stop and talk to me because they didn't fit a neighborhood? No. Would I stop and talk to them, yep. Because if they just broke into your house, you would want me to.

Quote:
person could be lost, ran out of gas and needs assistance, etc.

If I want directions, lift to gas station or assistance I will ask for it... might even flag ol' officer spidey down for the help.

Not everyone is like you. Some people are oblivious to the world around them and have their IPOD playing, are half asleep, drunk, etc. If your wife broke down and needed help should I drive right by her and assume she is all set? Or drive right by her to prevent forcing her to talk to the police? Or should I stop and say " Walking for fun or did you break down? Need some help?

Quote:
Was the subjects activities unlawfully disturbed by the social contact?

I sure wish we had this clause in the Florida Constitution...
If a cop approaches and tries to initiate a "consensual contact" and I reply that I am not willing to stop to talk, I could be charged with "interfering with a police investigation".
Then I would say you have no worries, you have to stop and talk by your state law. So, whats the point?

If i fail to present ID, I can also be charged. If he asks where I am going or coming from and I reply "I do not think that is any of your business, I might suffer a slip and fall right into a lamp post...

[Conn. Trooper]

The rationale of the opinion was that as more officers are present, the consensual nature of a request for information or a search decreases. Would you disagree?

Maybe, maybe not. I would have to know when the second officer arrived? He was not there from the start, did he arrive after the suspicious statements made by the person? After the pat down and the admission of possessing contraband?

Having several police officers approach you at the same time can give the impression you are not free to leave. No doubt. Don't know if that is the case here. Could be, maybe not.

But, not free to leave and under arrest are not the same. You can be not free to leave and not be under arrest.

[Destructo6]

Would you care to give some examples to the above statement. As it stands, you are saying if someone does not answer you in a certain way after you say hello to them, you have arrested this person. That smells

I should have figured that would raise some questions. Here's a scenario that's played out similarly, many many times.

Q: Hello, how are you?
A: A las tiendas, para compras. (to the stores, for shopping) [inappropriate response]

but it is 2300 and the shops have been closed since 1600. Red flag.

Q: Really? I know most of the people who live on this street, but I don't recognize you. Do you live around here?
A: Uh, no. I am visiting a friend.

Q: Okay, who is your friend and where does your friend live?
A: Up there (pointing at a vacant house, RS established)

Q: Yeah... Did you jump over the border fence or did you go through a hole up there?
A: Through the hole. (PC, arrest)

and another:

Q: Hello, how are you?
A: F you!

appropriate enough for me, moving on.

[NavyLT]

Originally Posted by Destructo6

Q: Hello, how are you?
A: F you!

appropriate enough for me, moving on.

A: Respectfully, sir... I don't know you. We aren't drinking or coffee buddies. We aren't hunting or fishing buddies. I value mine and others' privacy, so I would rather not engage in this conversation.

Probably receive a little bit less push back that way :-)

[hogdogs]

Quote:
Unfortunately we don't know the whole situation.

Fortunately we do not need to.

Then what are we discussing?

We are discussing a state supreme court ruling that a man's social activity was hindered by a LEO stopping to chit-chat then calling back up and asking to commit a search for "officer safety" thus busting for a meth pipe...
Brent

[Conn. Trooper]

Then I have to assume you agree with all my points? Great!

[Erik]

Read it again. Bad law... again.

The court first cited precedence allowing for the contact, allowing for the presence of an additional officer absent a seizure, and allowing for the consensual searches justified for the the articulated reason of the officer involved. An extremely common chain of events, well litigated at all levels of the system because of that, mind you. The court then decreed that despite that a new standard should be adhered to. The end result? Cover officers have bene encouraged to park further away. Everything else, the allowable law cited, will stand as is. So why bother? But that question is nearly always in play with liberal judges and activist rulings...

[Conn. Trooper]

My point exactly, none of this was forced or non-consenual. Would I forcibly search someone just for walking down the street? Nope.

[zukiphile]

My point exactly, none of this was forced or non-consenual. Would I forcibly search someone just for walking down the street? Nope.

How would someone you stop know that? I think you properly focus on the impression given by the PO in determining whether consent is freely given.

I would say that one need not be forcibly detained in order for consent to be an issue.

If I am interrogating someone, there is no threat of force or detention keeping him in the room with me. If he refuses to answer, he might be assessed the cost of his deposition, or be otherwise sanctioned by the court, but he is free at any time to get up and leave. Yet the consequences of doing so make these encounters hard to describe as consensual for the witness.