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

[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]

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.

 

[johnwilliamson062]

The object of an officer engaging a suspicious person in this manner is not limited to "fishing." It also serves a deterrent function. I know that law enforcement in every location I have ever lived in does this(Philadelphia, Columbus, Dayton, Greene County, Taipei). I often run at night and in some of these places, such as Philly, I was on a small campus surrounded by bad neighborhoods. It was not at all abnormal to be stopped by a LEO and talked to. I think they usually assumed I was buying drugs.
I was out one night in Columbus and made a team of vice plainclothes trailing someone. They weren't exactly trying to hard/very successful at blending in. Their walk was MUCH too aggressive and they were constantly making eye contact with each other turning their full head. They were even motioning to each other with their hands. I certainly was not the only one who noticed there was something going on, even if others did not know exactly what. I trailed them. I am confident that no one noticed me who did not first notice them. We passed through an empty alley at which point and they made me. I was only following 50 yards behind them.

There was a total of 7 officers that made themselves known to me. A second set of officers confronted me and took me around the corner when we got to the old BW3s on High. They immediately told me the men they were following were armed and that there was likely to be a shootout and that I should leave immediately for my safety. It is a very busy area and I asked them if they were concerned for all the people just standing around. They did not like that.

At one point three of the officers had me down sitting on a curb standing over me with arms crossed in classic car salesman style and otherwise portraying themselves as intimidatingly as possible telling me they were going to arrest me for interfering in a police investigation if I did not give them my license so they could run it. When it came back clean they told me they were going to arrest me so they could get me out of their way even if the charges wouldn't hold and that I would spend the night in jail.

IF the officer is using his authority status to intimidate the person into agreeing to searches and seizures I believe that is an abuse of power. It seems the court decided he had done exactly this in this instance.

A police officer can search almost anything without a warrant if you give him permission. If officers are allowed to aggressively use their authority to intimidate you there is absolutely no point to having the 4th amendment or Article 1 section 7.

 

[4thPointofContact]

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.

I would certainly Hope there is more to such city ordinance than merely what you posted, what if the Officer instructed you to -

-undress in front of grade-school children?
-shoot a dog crossing the road?
-rob a bank?
-cut off your little finger?

....how much trouble would you be in for 'disobeying a police officer' then?

Are you sure you don't mean §30-22-2. "Refusing to aid an officer" of the New Mexico Code?

Do you have a citation for the city ordinance?

 

[Erik]

"IF the officer is using his authority status to intimidate the person into agreeing to searches and seizures I believe that is an abuse of power. It seems the court decided he had done exactly this in this instance."

That is not what the court determined. The court determined that the actions of the officers on scene had the cumulative effect of creating the de-facto seizure of the defendant, and that from there, Constitutional safeguards were therefor triggered. Those safeguards having not been afforded, the evidence was excluded and the conviction overturned. All wrapped in the interpretation of an unusual and vague Washington state law.

Note: No actions of the officers were deemed inappropriate in and of themselves. The court in reaching its decision, rejected the standards and determinations set forth in the case law cited throughout their decision; state, federal, and SCOTUS.

To recap: Contact officers will continue to engage as before. The difference to satisfy this ruling? Cover officers will deploy further away. Or not deploy at all. Where is the public's interest in that?

 

[NavyLT]

I think you are all missing the point. The main point of this was that the officer performed a frisk for weapons for officer safety and then went beyond the scope of that search and turned it into a search seeking for evidence of a crime.

The same thing happens during a Terry stop if a cop disarms a person "for officer safety" and then checks the serial number of the gun. The check of the serial number of the gun is ILLEGAL as it has gone beyond the scope of the reason for the search.

In my reading, that is what the courts had the problem with - the evidence was inadmissible because it was obtained during a search that had become an illegal search because it was outside the scope of what the officer had obtained consent for and beyond the scope of what the officer had any right to perform.

 

[Conn. Trooper]

From what I read the officer felt the object and asked the person what it was. The person told him it was a meth pipe, which is illegal, it was then the officer "searched" the person and located the contraband. Thats not a violation of rights, and the court agreed.

If the officer felt the object and the person told him it was a Bic lighter and the officer searched further, that would be an issue. IMO

 

[zukiphile]

Where is the public's interest in that?

There is a real public interest in not permitting the introduction of evidence that it obtained without observation of constitutional safeguards. I can see disagreeing with where this court drew a line, or failied to draw a bright line, however the public interest in not rewarding non-consensual police searches shouldn't be especially controversial.

The person told him it was a meth pipe, which is illegal, it was then the officer "searched" the person and located the contraband. Thats not a violation of rights, and the court agreed.

I concur. It was how the PO undertook getting ostensible consent to the conduct the search that was problemmatic.

I think you are all missing the point. The main point of this was that the officer performed a frisk for weapons for officer safety and then went beyond the scope of that search and turned it into a search seeking for evidence of a crime.

I disagree.

The PO was not entitled to perform a search for which he had not obtained genuine consent. That a search may be conducted for the purpose of officer safety does not immunize it from constitutional protections.

The issue as stated by the court:

Whether the encounter between Harrington and the police officers rose to
an unconstitutional seizure prior to arrest, in violation of article I, section 7 of the Washington consitution...

 

[BlueTrain]

You might find this to be something of an absurdity but in some places it is illegal to have a bulge in your pocket or in that general area. Don't know if many people get arrested for it, though.

 

[Al Norris]

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

The former is a non-custodial arrest, while the latter is a custodial arrest. Yet, arrested you are (See Terry; Hiibel and Johnson - to name three). Just to be clear, here.

The reason I referenced Brigham City earlier was to point out that the WA Supreme Court will most likely be overturned, should this be taken to the SCOTUS (and they grant cert)... For the same issues that the Utah Supreme Court was overturned.

The court in this case went overboard in the opposite direction it should have. The subject in this case, consented to the social contact. He then consented to the Terry Search, even though this was not a Terry Stop. The subject freely told the officer what the object (in his pockets) was. The PO had no RS up to that point. At that point, by the admission of the subject, no RS was needed as PC then existed.

Sorry folks. Stupid should hurt and in this case, it did... Until the court backed off its other precedents. The only thing this case does is to confuse the larger issues.

In States that do not have "Stop and Identify" statutes (like WA and ID), if the officer asks you, simply be as polite as he was and say, no, and go about your business. Barring RS, the officer can do no more.

 

[publius42]

...The court determined that the actions of the officers on scene had the cumulative effect of creating the de-facto seizure of the defendant, and that from there, Constitutional safeguards were therefor triggered. Those safeguards having not been afforded, the evidence was excluded and the conviction overturned. All wrapped in the interpretation of an unusual and vague Washington state law.

Note: No actions of the officers were deemed inappropriate in and of themselves. The court in reaching its decision, rejected the standards and determinations set forth in the case law cited throughout their decision; state, federal, and SCOTUS.

To recap: Contact officers will continue to engage as before. The difference to satisfy this ruling? Cover officers will deploy further away. Or not deploy at all. Where is the public's interest in that?

So they are saying that by the time the officers asked for consent and it was given, a consensual search was no longer a possibility because the second officer had arrived? What if the first officer just asked sooner? It seems one effect will be an increased reluctance to ask to search. I have not yet read the case.

 

[NavyLT]

The action of the second officer arriving only contributed to a series of events that led up to the interaction becoming a detainment rather than a social interaction.