Question for Former LEO, VA Law

C

CyberSEAL

New member
Hi, I live in Virginia and was reminded this morning of an incident that took place a few years ago that I still wonder about. It was about 3am and I was walking around a lake in the middle of my community. I worked late then and sometimes I'd go for a late-night walk to clear my mind before going to bed.

On this night I was confronted by two police officers who were also walking around the lake, they mentioned later that they were looking for teenagers who had been causing trouble in the past week. Anyways, I was a young guy at the time, probably 22 or 23 when it happened (I'm 30 now) and I suppose that simply being out at that time of night made me a suspect of sorts.

Anyways, the cops ask me for ID and ask why I'm walking around the lake that late at night. I show my ID and tell them why. We are standing on a paved bike trail, they are both facing me and I'm facing the both of them. One of the cops proceeds to take a few steps closer and starts rummaging through my pockets without saying a word to me. I took a few steps back, asked him what he thought he was doing and told him to kindly keep his hands to himself unless he had plans on detaining me.

At that, both cops told me to have a nice night and we walked on our separate ways. Am I correct in assuming they can only shake me if I'm being arrested or temporarily detained? I mean, a police officer can not just walk up to someone who is obviously not breaking the law and search them, can he? Isn't that WTF we have a constitution for? Or maybe is that what we have Patriot one and two for, hehe. Anyways, was just wondering if my response was correct.
 
Cyber-
I'm no LEO, but it would seem to me that the pat-down was "legal" according to the SCOTUS ruling in Terry v. Ohio and assuming VA had a Terry Stop law on the books at the time.
Rich
 
Oh cripes I cant remember the case law...i think its carrol V US... sets prescedence for getting searched just for being in a "bad neighborhood".

Terry applies to officer safety pat down...a "Carrol stop" is a vehicle is driving slowly and stopping to talk to people, and acting suspicious in a known drug neighborhood, that is PC to search the vehicle for drugs.

Now as far a Terry goes. You and the officers had a "casual encounter". Based on Terry the officer could pat you down to check for weapons but not contraband (gets tricky here). Any CB (ie drugs) found could be confiscated but might be supressed in court due to illegial search unless the Officer had PC to believe you had drugs on you persons, in which case it wouldn't have been a casual encounter. Hence Carrol, and instant PC.
 
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Cyber,

IANAL and did not stay at a Holiday Inn Express last night, but I'll bet VA did not need it's own version of Terry, as SCOTUS had made it "law of the land."

That said, the technique the cop used was very bad, as it exposed him to all sorts of potential for trouble. Your response was excellent, and you hopefully helped the two of them learn a few lessons.

stay safe.

skidmark
 
Thanks for the responses. This was in a very upscale neighborhood, and I didn't exactly look out of place, except maybe for my age and the time of night it was. Most of what little I know about the law was learned through trial and error as a teenager...lol.

:p
 
skidmark-
It's my understanding that, in Terry, SCOTUS did not create law; it only upheld state law which provides for such stops. Your state must have the underlying legislation on the books for Terry to apply.
Rich
 
The search was unconstitutional unless the officers had reasonable suspicion to believe you had a weapon, period. Just because they have reasonable suspicion to detain you, which I'm not sure they even had here, does not mean they have reasonable suspicion to search you. And a Terry pat-down for weapons is a search. AND, even if they had reasonable suspicion to believe you had a weapon, they STILL did not have enough to go into your pockets unless they had probable cause to believe something they felt while patting down the outside of your clothes was a weapon, or was immediately recognized as contraband just from the pat down. Sounds like an all-around bad search to me.

they mentioned later that they were looking for teenagers who had been causing trouble in the past week.
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Sounds week to me unless you matched a description. Any reasonable suspicion from a week ago would be stale unless they had a very good description and you matched it.

Anyways, the cops ask me for ID and ask why I'm walking around the lake that late at night. I show my ID and tell them why.
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That part is fine, although you did not have to show them any ID, or even talk to them if you didn't want to if they had no reasonable suspicion to stop you, which I don't think they did. Especially if there was no local or state ordinace regulation what time the park and/or bike trail you were on was open to the public, ie. "Park Closed After Dark".
 
Frank,

Didn't the Hiibel case say you had to identify yourself, at least verbally, if challenged by a peace officer? Ahh, but does the Virginia code include a Stop-and-Identify clause, as Nevada law did when Hiibel was arrested?
 
That part is fine, although you did not have to show them any ID, or even talk to them if you didn't want to if they had no reasonable suspicion to stop you, which I don't think they did. Especially if there was no local or state ordinace regulation what time the park and/or bike trail you were on was open to the public, ie. "Park Closed After Dark".
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Yeh, I figured as much, however I don't mind being the cooperative citizen, which I was. Which is also why I was thrown off when the one cop did what he did, soliciting my response. It's funny you mentioned the "Park Closed After Dark" comment, because I now remember how they tried to tell me the trail was closed after dark, and I kindly explained to them that the lake, the trail and all property in every direction for a mile was owned by the HOA, and open 24/7.

The whole bad search thing musta been why they didn't give me any crap for being a punk kid and telling them to keep their hands to themselves...lol.
 
Frank,

Didn't the Hiibel case say you had to identify yourself, at least verbally, if challenged by a peace officer? Ahh, but does the Virginia code include a Stop-and-Identify clause, as Nevada law did when Hiibel was arrested?
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Whether the police jurisdiction has a "Stop and ID law" or not, the initial stop has to be valid. In VA, I think it goes county-by-county and city by city. VA doesn't have a State "Stop and ID law" that I know of, although I know that various counties do. I don't think the stop was good in this case based on what Seal told us about the vague "kids causing trouble" reasonable suspicion, and the fact that the area he was detained was open to the public, or at least the residents, 24/7. I think Hiibel said that state stop and ID laws were OK as long as they weren't too vague, like a lot of loitering or vagrancy statutes, and as long as the officers have at LEAST reasonble suspicion (less than probable cause) for the investigatory stop in the first place.

The whole bad search thing musta been why they didn't give me any crap for being a punk kid and telling them to keep their hands to themselves...lol.
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I don't know about that... A lot of cops wouldn't know a bad search if they were subjected to it themselves. They probably just let you go without further crap because they didn't find anything on you.
 
How can you know the stop was legal without knowing the description of the alleged troublemakers, when and what the trouble was that they caused, and Seal's description at the time? You can just stop every young adult who is out after dark because a week ago some kids caused some problems in the same area?
 
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skidmark-
It's my understanding that, in Terry, SCOTUS did not create law; it only upheld state law which provides for such stops. Your state must have the underlying legislation on the books for Terry to apply.
Rich
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Rich,

I went back to read Terry and need some more understanding from you. As I read it, Terry set a contour of the 4th Amendment regarding the circumstances of a search (detained vs arrested and "officer safety") and the extent of a search (pat down outer clothing vs turn out or reach into pockets, etc) without any mention of Ohio law permitting/regulating investigatory stops.

What did I miss?

stay safe.

skidmark
 
cyberSeal -

Need to apologize and amend my response to you. I must have totally missed on my first reading that the cop put his hands INTO you pockets. That makes it an illegal search, as far as I know.

As far as the encounter itself, I am hearing more use of the "community caretaking" role of police when they do these types of stops -- sort of "we were just curious why you were out here at 2:30 AM when everybody else is home asleep -- as opposed to actually thinking you might be up to no good because you were out here at 2:30 AM while everybody else is home sleeping" explanation when they get asked in court why they stopped someone. That bothers me, as I thought "community caretaking" was more on the order of checking an open door late at night, when & where an open door late at night is unexpected/unusual, and finding signs of forced entry which form the basis for then entering and searching the premisis without warrant or a felony committed in the presence of the cop.

I like the cops - mostly - but they are putting too much pressure on the notion that everyone is a bad guy until proven otherwise. I can understand "rational paranoia" in their line of work, but there are limits that when you exceed suggest it's time for a vacation or a new line of work.

stay safe.

skidmark
 
skidmark-
Again, I'm not a Constitutional attorney. I came to the conclusion that SCOTUS was only upholding Ohio law because that's how the system works. SCOTUS is not a body that responds to "what if" requests from Law Enforcement agencies. It narrowly rules only on the constitutionality of existing Federal or State law.

To the extent they affirmed the lower court ruling, they affirm that Ohio's Terry Stop Law is Constitutional. If Virginia has no Terry Stop law, the Scotus ruling cannot "create" one there.

Like I said, I could be incorrect on this. Suggest you PM tyme or Antipitas for further clarification.
Rich
 
Need to apologize and amend my response to you. I must have totally missed on my first reading that the cop put his hands INTO you pockets. That makes it an illegal search, as far as I know.
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How would the search have been any more reasonable if they just patted down the outside of his pockets? You can't do that either in the abense of reasonable suspicion to believe he has a weapon. There is no "officer safety" exception to the search warrant rule. You can't search someone just because he's 22 or 23 years old and he's walking around at 3:00am in an area where there was some kind of trouble going on with teenagers a week before. You can't search someone "just" for "officer safety". Based on the info that Seal gave us, the stop and search were both a lot more unconstitutional than constitutional.

If that were allowable, I could stop and search every car that drove by a dope house.
 
A brief pat of the exterior clothing is permissable if you believe that there may be a weapon concealed. You are checking for such a weapon only- Officer safety.

Along with this, you need to articulate WHY you Terry patted someone... you can't just go around patting everyone down and say "they might have a weapon."

Also, a contact is a contact. I can stop and say hi and ask questions to anyone I choose... It becomes a STOP when the person feels as though they're being questioned about something and they don't FEEL free to leave.

In DC we have to file a report for every pat we do... that's our little agreement with DOJ.

You can not enter someone's pockets or manipulate clothing. Remember, the patdown is open handed, not feeling objects with your fingers.

It's funny or not, but some guys articulate a tiny bag of weed using the Terry pat.....

Best be safe -Coop
 
It's funny or not, but some guys articulate a tiny bag of weed using the Terry pat.....
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Those are the guys who will screw up MN V. Dickerson for everyone....Also look for pretextual traffic stops to become a thing of the past if cops keep abusing them. They're already forbidden in Washington State...
 
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