mapsjanhere
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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.
Jailed for Bulge in His Pocket. Interesting WA State Supreme Court Ruling.
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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.
Dust Monkey
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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.
azredhawk44
Moderator
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.
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.
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.
azredhawk44 said:
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.
Just read the opinion. Bad law.
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"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.
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"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.
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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.
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.
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).
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
New member
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.
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.
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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.
Except that the person you are addressing has not consented to the encounter, so it isn't consensual in a conventional sense.
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 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.
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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
New member
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 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.
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.
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.
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.
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.
mapsjanhere said:
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.
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Conn. Trooper
New member
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.
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.
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.
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?
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