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

Status
Not open for further replies.
"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?"

Yes.

"What if the first officer just asked sooner?"

Good search.

"It seems one effect will be an increased reluctance to ask to search."

In instances where two or more officers are involved by design or by chance, perhaps. However, as I pointed out, a bit of foresight on the part of covering officers will apparently satisfy the court.
 
"...the WA Supreme Court will most likely be overturned, should this be taken to the SCOTUS (and they grant cert)."

I agree. The surest route is likely via federal participation in a case declined by the federal courts and accepted by the state. Feds not being bound by this bad law accept in instances where their evidence is being brought into state court. Time and politics will tell...
 
Erik:
"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?"

Yes.

"What if the first officer just asked sooner?"

Good search.

"It seems one effect will be an increased reluctance to ask to search."

In instances where two or more officers are involved by design or by chance, perhaps. However, as I pointed out, a bit of foresight on the part of covering officers will apparently satisfy the court.
Click to expand...

Let me point out to you something the court wrote in their 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.

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.
Click to expand...

What part of the bolded portion do you not understand? It would NOT have been a good search if only one cop was there. It would NOT have a been a good search because it was conducted under the disguise of a social contact. The court specified what WOULD satisfy them. If the cop is engaging in a social contact with a person, and the cop does not like the behavior of the person during the contact, then the cop needs to leave the person alone.

You claim this is bad law because a cop that their hand slapped because they were on a fishing trip under the disguise of social contact. I don't like a scum bag getting off either. But this is a matter of protection of personal rights and if the cop doesn't want to respect those than too bad, the cop loses. We have been told for too long that cops are always right and cops are always to be trusted - neither of which is true.

The second cop arriving was only one small contribution to the whole chain of events, but, for some reason, in your mind you have invented that this whole case centers around that second cop.
 
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.

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.
Click to expand...

LT is correct, ^^THIS^^ is the crux of the issue, and the reason the "fishing" expedition resulted in the doper walking away scot free.
 
I might understand better than you'd like to believe.

The issue: "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 Constitution, requiring suppression of drugs found on his
person."

The standard of review: "Whether police have seized a person is a mixed question of law and fact."

WA law impacting decision: "“No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

That is all there is, really:
http://www.leg.wa.gov/lawsandagencyrules/pages/constitution.aspx

The actions of the officers, in order:

1. Social contact
2. Arrival of second police officer
3. Request to remove hands from pockets
4. Request to frisk

Note, each action in the progression was legal at the time of the action, and in fact, remains legal following this ruling. That is an indicator that the ruling falls on the bad law side of the good law-bad law line.

To be clear, Washington officers may still request to frisk someone. Look for the SCOTUS to pounce should Washington come out interpreting this ruling other wise.

The court interpreted the chain of events as a sum, dubbed a progression of intrusion, which culminated in his seizure via their interpretation of state law. An interpretation I anticipate to be described in the future by reviewing authorities in terms such as as "strained," "muddled," "over-reaching," etc.

Having decreed it a seizure: "Because Harrington’s consent to the search was obtained through
exploitation of a prior illegal seizure, suppression of the evidence is required.
See Garvin, 166 Wn.2d at 254."

The conclusion: "Because an objectively reasonable person would not have felt free to
leave by the time the officer asked to frisk, Harrington was unconstitutionally
seized prior to arrest in violation of article I, section 7 of the Washington
Constitution."

I anticipate that the challenges to this ruling are only constrained by the imagination of prosecutors and the state and federal law enforcement officers who consult with them.

But in the mean time, prosecutors are no doubt revising their advise on how to get around this judicial obstacle, which will soon be pushed to the field, if it has not already happened. Yes, as a profession, we're advised by lawyers on what we may or may not do, under what circumstances, etc. In fact, no doubt the officers in this case were trained to do what they did, for the reasons that they did it. The internalization process is short, with folks in the trade being fairly adaptive, and my colleagues in Washington will move forward. An by moving forward, I'm pretty sure they won't be returning to their patrol cars per the court's expressed desire...

Re the officers actions: They were legal at the time they undertook them, and taken separately, remain legal for them to continue to undertake. In any event, there was no "slapping" of them involved.
 
Last edited:
The fact is the cop had no reasonable suspicion in which to stop the person as a formal Terry stop, so he chose to stop the person under the disguise of a social interaction.

And then the cop took action that would normally be allowed only during an actual Terry stop.

Too frickin' bad that cops can't just stop whoever the heck they want to for whatever reason they want, isn't it.

Based on the Terry v. Ohio case, I would see no reason for SCOTUS not to uphold the most recent decision.

The biggest problem in this whole scenario was that Harrington was stupid enough to fall for the cops tactics.

I recommend that everyone watch "BUSTED: The Citizen's Guide to Surviving Police Encounters"

http://www.flexyourrights.org/busted
http://video.google.com/videoplay?docid=3435730304776119545

Don't get me wrong, it appears as if Harrington was a scumbad druggie and I would love to see his kind off the streets. But, at the same time, I firmly believe in cops leaving people the hell alone without RAS to interact with them to fish for evidence.
 
"The fact is the cop had no reasonable suspicion in which to stop the person as a formal Terry stop, so he chose to stop the person under the disguise of a social interaction."

Yes. All very well and perfectly legal. This ruling does not change that.

"And then the cop took action that would normally be allowed only during an actual Terry stop."

No. Point in fact, the opposite.

Granted, the court seems set on redefining the rules for consensual encounters and searches in Washington, blurring the lines between them and Terry Stops and Terry Frisks. In doing so they in essence redefined Terry Stops and Terry Frisks, and have over-stepped themselves in doing so. Which is why I disagree with the following:

"Based on the Terry v. Ohio case, I would see no reason for SCOTUS not to uphold the most recent decision."

The SCOTUS is unlikely to side with such judicial advocacy, particularly given that it is at odds with its own precedents.

--

The court of appeals' opinion:
http://www.courts.wa.gov/content/Briefs/A08/817197 respondent br.pdf

I anticipate, upon SCOTUS review should that ever happen, the majority of Justices will align themselves with the logic found here, it relying heavily on law generally deemed as accepted (i.e. the law of the land; i.e. SCOTUS forged and/or accepted law). And in doing so, the "authority of law" called for in article 1, section 7 of the WC will be deemed met... again.

To do otherwise would be to acknowledge that LEOs do not have the right to gain consent to search. That will not happen.

--

In the mean time, the worse case scenario, from a law enforcement point of view, is that Washington State LEOs will have to refrain from inquiring concerning consent to search individuals where the case is expected to be heard in state court. Then, no doubt the bench will seek to broaden the ruling to include property, but that is getting ahead of ourselves.

Interesting mental exercise, thread wise, at the very least.
Best - Erik
 
Last edited:
To do otherwise would be to acknowledge that LEOs do not have the right to gain consent to search. That will not happen.
Click to expand...

I see a difference between a cop saying "Howdy" and a cop saying "Howdy, can I frisk you?" One seems like a consensual social interaction, the other does not.
 
I interact with law enforcement politely and respectfully. I will help them at any turn that I can.

However. At no point do I let any government official into my home. There could be a mass murderer loose in the neighborhood and I will still step outside, shutting the door behind be to speak with the officer.

'No sir, you may not have a look in my home'

If pulled over and asked to step out of the car, I remove the keys from the ignition and lock the door upon exit.

'No sir, you may not have a look in my car'


I have nothing to hide but we have rights for a reason and I expect those who work for us in the government and protective services to respect those rights.
 
The actions of the officers, in order:

1. Social contact
2. Arrival of second police officer
3. Request to remove hands from pockets
4. Request to frisk

Note, each action in the progression was legal at the time of the action, and in fact, remains legal following this ruling. That is an indicator that the ruling falls on the bad law side of the good law-bad law line.
Click to expand...

I don't believe it is analytically proper to argue that the decision is bad law based on your disagreement with the court's statement of facts. The contact wasn't predominently social in the court's reading and the request was viewed more as an order.

Re the officers actions: They were legal at the time they undertook them, and taken separately, remain legal for them to continue to undertake. In any event, there was no "slapping" of them involved.
Click to expand...

Emphasis adeded.

A competent analysis can't take the actions separately, since that isn't how people evaluate these encounters.

To do otherwise would be to acknowledge that LEOs do not have the right to gain consent to search.
Click to expand...

That really isn't so. Extreme hypotheticals can illustrate this.

Hypo #1: An officer walking a neighborhood asks in a friendly tone, "Pardon me sir. I am Officer Smith. This is a new beat for me, and I am getting to know the neighborhood. May I ask your name and where you live? You are not obliged to answer my questions, and are entirely free to go."

Hypo #2: Four POs shove a fellow into a corner surround him, and one says "I want ID! NOW!"

It is hard to imagine #1 as non-consensual, just as it is hard to see the genuine consent in #2.

It isn't about whether a PO can gain consent, but whether the the request was one to which real consent could be given.
 
Without duress, certainly.

Re the NM ordinance,

"Refusing to obey" is a city ordinance that gives police the authority to arrest someone who disobeys them. It was adopted in 1973.

Defense attorneys derisively call the refusing to obey charge "contempt of cop" and claim that APD routinely violates residents' First Amendment rights when they use it.

The Journal investigation found that arrests under the ordinance included a passenger in a car who interrupted a police officer during a traffic stop, a resident who refused to end a party and a man who wouldn't let officers - who didn't have a warrant - into his home.
Click to expand...

Emphasis added.

I would never suggest that states don't pass dubious laws, but cities are the more frequent offenders. You have often have ordinances passed by councilmen of modest ability who suffer only moderate scrutiny.
 
Again, refusing to obey a presumably lawful order is illegal just about... everywhere. Or making the point from a different angle, is there anyone who lives in a place where refusing a presumably lawful order is legal?
 
And it is a good thing that making an order which a reasonable person would presume to be lawful, which actually is not is ILLEGAL for the OFFICER to do as well, which is EXACTLY what happened in the Washington case!

Erik, you REALLY need to accept that the officer crossed a line, he got called on the carpet for it, and the subject's rights were upheld and respected by the court.
 
Define a "LAWFUL ORDER"
Click to expand...

"Take your hands out of your pockets".
Would be a lawful order during a Terry stop.
Would NOT be a lawful order during a "social interaction".

"You must submit to a frisk for weapons".
Would be a lawful order during a Terry stop IF the officer had RAS to believe the subject was armed and dangerous.
Would NOT be a lawful order during a "social interaction" or if the officer had no RAS to believe the subject was armed and dangerous.

"Show me your ID".
Varies from state to state. In Washington:
Would be a lawful order during a Terry stop in order to issue a citation.
Would NOT be a lawful during a "social interaction" or during a Terry stop merely to verify the identity of the person if no citation was going to be issued and if the subject was not driving a vehicle.
 
"Erik, you REALLY need to accept that the officer crossed a line, he got called on the carpet for it, and the subject's rights were upheld and respected by the court."

I don't. He didn't. He wasn't. They were. And the ruling will likely be reversed. Until then, this is an easy enough ruling to work around. Perhaps easier than I had earlier alluded to, if the information coming out of Washington is correct.

I'll bow out now. We won't be changing one another's minds.

Best -E
 
Last edited:
Again, refusing to obey a presumably lawful order is illegal just about... everywhere. Or making the point from a different angle, is there anyone who lives in a place where refusing a presumably lawful order is legal?
Click to expand...

Yes, we all do. If everything a PO wanted people to do were presumptively lawful, the police would not need warrants or reasonable suspicion.

A PO's order may be presumptively legal in the sense that a court will require the defendant to demonstrate that the order was not proper. However if a PO's order is beyond his limited authority, then no court will enforce it.

In Ohio, within the last two years our courts dismissed a charge against a defendant who had been stopped for no other reason than the PO desire to stop him. The defendant left the stop and the PO pursued him, stopping him again. The defendant had no obligation to follow the PO's orders since stopping people for no valid reason is not within the PO's authority. As in other matters, other states may well have decided this differently.

A PO's order isn't presumably lawful when given (though it may effectively be when reviewed judicially), so the presumption you apply is not correctly present in the analysis of an individual in assessing whether to comply with PO's request.

Until then, this is an easy enough ruling to work around.
Click to expand...

If you understand the ruling to state that if consent is necessary it should be genuine, why would you want to work around it?
 
Last edited:
Status
Not open for further replies.
Back
Top