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

[Dust Monkey]

Please read the article and lets discuss. As soon as I can, I will post the entire Ruling, but this article sums it up.

My take on this is 2 fold. First thing that comes to mind is the Officer had no reason he could articulate to stop/interact with the individual. None. This is stated in the court record. Second, since the officer had no reason to stop and interact with the individual, anything that was found does not exist under the "Fruit of a Poisonous Tree" doctrine. And the court spanked the Officer for his lack of reasonable suspicion (none) and for violating this individuals 4th Amendment Rights, both state and federal.

Now, is this guy a dirt bag, probably. If you have a meth pipe on your person, you are most likely a user and a waste of skin. But that IS NOT THE ISSUE here. The issue, can a Police Officer, without reasonable suspicion or PC, stop/interact with a citizen just for "fishing" purposes.

We all know about the 4th Amendment, so I wont go into that. But to refresh about the "Fruit of a Poisonous Tree" doctrine, it is supposed to be a firewall against police abuse of power, a deterrent to those inclined to abuse police power. As in do the job right, no short cuts.

Here it is, link and atricle below.

WARNING: I have already notified a Mod about this, so they will be watching. Please lets discuss the merits of this, the decision and the incident. Lets not allow this to spiral into any mud slinging.

DM


http://http://blogs.seattleweekly.com/dailyweekly/2009/12/jailed_as_result_of_bulge_in_h.php

Jailed for Bulge in His Pocket, Tri-Cities Man Gets a Reprieve From State Supreme Court
By Rick Anderson in Crime & PunishmentThursday, Dec. 10 2009 @ 10:28AM

Or are you just happy to see me?
​Can you be an apparent law-abiding citizen, walking along a city street, and be arrested, essentially, for having a bulge in your pants? Yes, over in Richland, anyway.

That was the outcome of what happened to Dustin Warren Harrington around 11 p.m. Aug.13, 2005. Police Officer Scott Reiber thought Harrington looked suspicious walking through a neighborhood at night. He flipped a U-ey, and asked Harrington if they could talk.

As Reiber later explained somewhat confusingly in court, he "contact[ed]" Harrington because "[t]hat area, late at night, a gentleman walking - social contact. See what he was up to, just to talk."

Reiber asked Harrington where he was coming from. His sister's house, said Harrington, but he didn't know exactly where the house was. That made Reiber suspicious, and Harrington seemed nervous, according to court records.

Reiber then noticed bulges in Harrington's pockets. Reiber also thought it was suspicious that Harrington kept moving his hands in and out of them.

As a state trooper pulled up to assist, the Richland cop asked if he could pat down Harrington for officer safety, explaning he was not under arrest.

Harrington agreed. Reiber then "felt a hard, cylindrical object in Harrington's front right pocket," according to the record.

What's this? asked the cop.

"My glass," said Harrington. "My meth pipe."

Immediately arrested, Harrington was also carrying a baggy of meth, found during the pat down.

Harrington was later convicted of unlawful possession of a controlled substance, and appealed, claiming the evidence was seized illegally. The cop, with the trooper backing him up, he said, effectively gestapo-ed him into turning over his incriminating goods.

Today, the state Supreme Court unanimously agreed.

"We conclude," says Justice Richard Sanders, who authored today's opinion, "the officers' [cop and trooper] actions, when viewed cumulatively, impermissibly disturbed Harrington's private affairs without authority of law and therefore constituted an unlawful seizure."

Asking someone if you can pat down their body, writes Sanders, "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...

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

"We note this progressive intrusion, culminating in seizure, runs afoul of the language, purpose, and protections of article I, section 7. Our [state] constitution protects against disturbance of private affairs - a broad concept that encapsulates searches and seizures...

"Article I, section 7 cannot tolerate the officers' progressive intrusion into Harrington's privacy. We reverse the Court of Appeals, suppress the evidence against Harrington, and dismiss."

[Erik]

"First thing that comes to mind is the Officer had no reason he could articulate to stop/interact with the individual. None."

Nor is one needed.

"Now, is this guy a dirt bag, probably."

Probably.

"But that IS NOT THE ISSUE here."

I agree.

"The issue, can a Police Officer, without reasonable suspicion or PC, stop/interact with a citizen just for "fishing" purposes."

I disagree. The answer to the question is yes, by the way. The issue is one of how a police officer, having contacted an individual as described, interacts with that individual given the 4th Amendment. Interact, by all means. Fish with the skill of a seasoned angler. But do so within the rule of law, taking no short cuts. And for Pete's sake, be able articulate what actions where undertaken and why, and do not fail to do so. Or... Become a cautionary tale such as this one.

[Dust Monkey]

What was the officers reason to pull a u turn and stop the individual? Spidey sense? It seems the court did not believe the officer(s) reason for the interaction.

Nor is one needed

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. Why do I think that many here will think that is just plain wrong.

If the officer had RS why not stop the individual and do a Terry? Why did he have to ask for consent to frisk? IMO, the reason is the officer did not have RS, and the only way to get to frisk/search was to hopefully gain consent. And he did, but doing so under intimidation, according to the court. Its akin to a police officer driving down the street, picking a house out at random, knocking on the door and asking the resident if they will give consent to search.

That aint right.

[philobeddoe]

I haven't exercised this muscle in a while, but here it goes.

A police officer may not stop a citizen for no reason, devoid of suspicion, and ask the citizen to produce identification. Nor can the officer search the individual.

On the other hand, the officer can engage the individual in conversation, and in this instance, the individual's nervous demeanor caught the officer's attention.

Now, it's a known fact, not merely theory, that an individual will habitually pat or touch hidden contraband, including a contraband weapon, while engaging an officer.

I believe a better lawyer would have argued that this behavior, and the individual's demeanor, during a "normal conversation" with the officer raised this to reasonable suspicion.

The officer merely asked the individual if he could do a pat down, the individual acquiesced, and then revealed upon prompting the possession of contraband.

He was not under custodial interrogation, nor was he even searched ... just merely patted down.

The officer could have simply asked the individual if he was holding contraband and he may have confessed.

Would that also have been deemed fruit of the poisonous tree?

I think this decision is wrong, and I prefer to err on the side of individual freedom and the protection thereof.

As for the perp's scumbag nature ... that is not a factor. Good law usually comes from illegally shaking down bad boys.

Again, I think this decision is wrong.

[bob.a]

If Harrington agreed to a search of his person, while personally aware that it would turn up incriminating evidence, then admitting that it was narcotic paraphernalia, then he implicitly agreed to the consequences. The guy's apparently not too bright.

While the officer was obviously fishing, I don't see that he acted outside his mandate. Had Harrington denied him permission to search, he (H) would have been on more solid ground, but he was probably stoned and paranoid. And of course someone WAS out to get him.

Whether being temporarily mentally impaired during the commission of a victimless crime ought to carry severe penalties is another matter.

Looks like the state supreme court looks out for drunks and fools.

[Dust Monkey]

Court brief.

http://www.courts.wa.gov/opinions/pdf/817197.opn.pdf

there is a little bit more to it. One question. If this was just a hey what's up contact. Why tell a person to keep their hands out of their pockets? Kind of says you are detained and not free to go.

[Glenn Dee]

Another county heard from.

A Police officer has the common law right to inquiery. Any citizen has the common law right to inquirey. A police officer MAY!!!if during this inquirey become suspicious that the subject may be dangerous frisk the subjects outer clothing for WEAPONS ONLY!!! for the officers safety only. The subject does not have to speak to the officer, and does not have to submit to the frisk.

I think the officer was well within the law when he stopped the subject, but lost his case when he placed his hands within the subjects clothing. a defence could also be argued against the frisk because the second officer deminished the threat to the first officers safety.

Anyway... this is my understanding of "STOP and FRISK"

Glenn D.

[Double Naught Spy]

Dust Monkey, your links don't work. The first one doesn't go anywhere and the second one (the opinions) just go to a generic WA Court opinions page.

Edit: Fixed the links - Antipitas

[blume357]

I'm sure the guy looked squirrelly walking through the neighborhood late at night. It seems like a reasonable arrest to me and I think the search was legal too.

[mapsjanhere]

Lets stay fair here, if the same thing would have happened with the cop finding, lets say an unloaded antique gun (not a safety thread, but illegal to carry in your pocket), everybody would be clamoring about the cop and his illegal actions.
You can't have it both ways, either the cop can stop anyone anywhere for any reason and search them, or he can't. I much more prefer he can't, even if that means some gang banging meth addict night crawler scum (add more expletives here) gets away.

[Al Norris]

I think we are getting a little confused here. The basis for the decision rests not with the U.S. Constitutions 4th amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."), but with Washington States Constitution, Art. I section 7: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

This appears to provide greater protection to citizens than does the 4th amendment.

[Destructo6]

You can't have it both ways, either the cop can stop anyone anywhere for any reason and search them, or he can't.

That's not the question at hand, though, is it?

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

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

Do we agree on that or not?

If, during the course of the consentual encounter/consentual search, facts or items are discovered that would constitute Probable Cause for arrest, then where is a violation of the citizen's rights?

[Brian Pfleuger]

Originally Posted by Destructo6

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

Besides that, I know for a fact that refusal to allow a search or refusal to talk will often (usually) be considered suspicious and the officers will do EVERYTHING in their power to "force" a search. Being that they are experienced and informed and the citizen is generally inexperienced and not aware of the legal intricacies, the officer will "win" that debate.

[Uncle Billy]

Originally Posted by Antipitas:

I think we are getting a little confused here. The basis for the decision rests not with the U.S. Constitutions 4th amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."), but with Washington States Constitution, Art. I section 7: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

This appears to provide greater protection to citizens than does the 4th amendment.
__________________
Al Norris

That's correct- the central issue here is how the Washington state Supreme Court defined "authority of law" in this case, because Art. I section 7 seems to me to be so vague as to be nearly useless as guidance, leaving a subjective interpretation to the politics and perspectives of whomever happens to be on the court at the time such a case gets there.

[Pbearperry]

Cops that are always fishing so to speak to make arrests,eventually catch a stinky fish.Guys like this have always ****** me off.We had a few on my job too.

[OcSpeed]

I don't believe cops should "fish" randomly, a scumbag they recognize from prior arrests or wanted posters, so to speak, fish away.

I don't want my privacy violated by anyone. I think the cop acted while on a power trip, he needs to get back to being a civil servant... It's thankless and lots of folks don't appreciate it. I do.

[chris in va]

Can LEO's 'ask' for a Terry search, or is it something we don't have a say in the matter?

The cop did a Terry and found the pipe, that's why I'm asking.

[Dust Monkey]

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

No. I don't agree. What is the reasoning for picking someone to as for consent? So a cop could walk up to a pretty blonde in walmart at 9AM and out of the blue say " hi ma'am can I search you?

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 cops just can walk up Willie nillie to anyone, we might as well issue cops warrant disks with their duty pistol.

This about sums it up, from the decision:

We do a disservice to the public and to police by moving the so-called ‘social contact’ into just another form of seizure, albeit without any cause or suspicion of crime or danger to the public or the police.”
Harrington, 144 Wn. App. at 564

[NavyLT]

Can LEO's 'ask' for a Terry search, or is it something we don't have a say in the matter?

The cop did a Terry and found the pipe, that's why I'm asking.

That all depends upon the nature of the stop. IF the nature of the stop is based upon a reasonable and articulable suspicion of a crime having been or about to be committed AND the officer has reasonable and articulable reason to believe the subject is armed (and, pretty much by default, therefore dangerous), then the officer can perform a frisk for weapons, even without consent.

If either one of the two circumstances above is not present, then the officer may request to search, but the subject may refuse.

Of course, there is great debate regarding "armed and dangerous". Obviously, a law abiding citizen, lawfully carrying a firearm is not dangerous, HOWEVER, even I, a staunch supporter of 4th and 2nd amendments, would concede that absent the officer actually knowing the subject, how can the officer possibly know the intentions of the subject. So, for me personally, IF the officer has grounds for a Terry Stop AND he has reason to believe I am armed (and I won't tell him unless I am asked), I would not have a problem with him disarming me only for the duration of the stop - which does NOT include running the serial number of my firearm and does NOT include confiscation of the firearm after the reasonable detainment is over.

The officer initially did not conduct a Terry stop - so really what possibly did the officer have to gain at all by even engaging the subject in a social encounter? It is obviously it was a fishing trip from the start. So - a word to the wise - if a cop approaches you out of the blue and starts asking questions about where you are coming from or going, they probably are interested in more than on a personal level.

[Dust Monkey]

The cop did a Terry and found the pipe, that's why I'm asking.

You don't have to ask for consent to do a Terry search.

[mapsjanhere]

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

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

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.

[Dragon55]

You decline talk, or to be searched, he can arrest you for it and search you after he arrested you.

This smells bad:barf:

What about Miranda????

[Dust Monkey]

What about Miranda????

Miranda ain't got jack to do with it. Miranda only comes in to play when a suspect who is suspected in a crime is to be questioned. That's it. A cop can arrest you for a crime, he only has to read Miranda if he intends to ask you questions. If je does not intend to question you, he has no obligation to read you your Miranda rights.

[Dragon55]

Well yeah it does.

detain

arrest

charge


At any point I can stop talking and ask for a lawyer..... at least in TN.

[azredhawk44]

You don't have to ask for consent to do a Terry search.

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."

The officer arrives and sees someone calmly carrying a pistol on their hip but no big deal.

Or, the officer witnesses an articulable reason to be concerned for his safety during a conversation with a person of interest.

This above WA situation shows a couple things:
1. The officer initiated contact with a random person on a sidewalk in a neighborhood. There was no 3rd party report and no officer-witnessed concern for potential violations of the law;
2. The contention that the officer was concerned for his safety is specious at best since he had backup from another officer and he initiated the non-detention conversation with someone who was not a person of interest.

Is it true that illegal materials other than weapons (drugs, etc) found during a Terry are inadmissible in court for prosecutable purposes? This court doesn't seem to imply that and seems to focus more upon the purpose of the officer's encounter with Harrington.