Spotsylvania Sheriff's Department Executes "No-Knock" Warrant

OC for ME said:

McFadden did not seize Terry et al for loitering as he had the authority to do. Nope McFadded just snatched those fellas up and searched them for no lawful reason other than on his hunch that them fellas was ups to no good. McFadden didn't have any facts to support stopping them fellas at all. McFadden had a chance to follow the law of the land and he chose not to. SCOTUS sided with a law breaking cop. SCOTUS has continued that tradition of siding with law breaking cops!

Ask any cop if he thinks Terry is good "law." I'll be surprised if you find one that will admit that Terry is bad "law" and he would not use it while in the course of his duties.
https://www.law.cornell.edu/supremecourt/text/392/1#writing-USSC_CR_0392_0001_ZD

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Just a hunch, huh?
In 1963 Detective McFadden saw two men standing on a street corner and acting in a way he thought was suspicious. (no harm there, no detention on that little 'hunch).
He observed one man take a route to pause and stare in a store window.
He observed that man have a short conversation with a second man.
He observed the second man take a rout to the same window and stare into it.

He observed the first man to stare into the window a second time
He observed the two men have a conversation
He observed the second man stare into the same store window

He saw the same process a third time
He saw the same process a fourth time
He saw the same stop and stare a fifth and perhaps a sixth time.


Exactly how dumb do you want cops to be?
Heck, if I saw that even I'd be suspicious.

Fallschirmjäger said:

Just a hunch, huh?
In 1963 Detective McFadden saw two men standing on a street corner and acting in a way he thought was suspicious. (no harm there, no detention on that little 'hunch).
He observed one man take a route to pause and stare in a store window.
He observed that man have a short conversation with a second man.
(Hay George, do you think my wife would like that ring for her birthday?)
He observed the second man take a rout to the same window and stare into it.

He observed the first man to stare into the window a second time
He observed the two men have a conversation
(Well George, do you think my wife would like that ring for her birthday?)
(Sam, I don't think your wife would like that ring for her birthday?)
He observed the second man stare into the same store window

He saw the same process a third time
He saw the same process a fourth time
He saw the same stop and stare a fifth and perhaps a sixth time.


Exactly how dumb do you want cops to be?
Heck, if I saw that even I'd be suspicious.

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My Additions to your scenario.

Officer Hunch is clearly wrong!!!!

Wait... you seem to have forgotten to add your little imaginary circumstance to the other 5 or 6 trips.

Now, I don't know how you shop, but normally when I want to discuss something with a friend or acquaintance, he and I will just stand there in front of the shop window or just go inside. Going back and forth and back and forth and back and forth to discuss something seems just a little wasteful of time and effort. I'd probably make sure my good friend was there to look at exactly what I was looking at rather than send him to go look, and then come back where we'd discuss it a bit and then go take a look and come back, and take a look and come back... and take a (well you get the idea, I'm sure).

I'm going to blame this on a hurried reading of Terry v Ohio and do a little correction as easily seen below.

Just a hunch, huh?
In 1963 Detective McFadden saw two men standing on a street corner and acting in a way he thought was suspicious. (no harm there, no detention on that little 'hunch).
He observed Terry take a route that took him by a store's window and pause to look inside.
He observed Terry have a short conversation with Chilton.
He observed Chilton take a route to stare in the same store window.

He observed Terry go back to stare in the window a second time.
He observed Chilton go back to stare in the window a second time.

He observed Terry go back and stare in the same window a third time
He observed Chilton go back and stare in the same window a third time

He observed Terry go back and stare in the window a fourth time
He observed Chilton go back and stare in the window a fourth time

He observed Terry go back and stare in the window a fifth time
He observed Chilton go back and stare in the window a fifth time

At one point they were joined by a third man
He observed all parties left and upon following he saw all three meet up again

The only real contention is did McFadden have any justification in seizing and doing a "pat down" on Terry and Chilton based upon what he observed when they stared multiple times into the same store's window.




Exactly how dumb do you want cops to be?
Heck, if I saw that even I'd be suspicious.

Fallschirmjäger said:

... Heck, if I saw that even I'd be suspicious.

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The court twisted itself like a pretzel to focus on McFadden's experience to justify the seizure. McFadden used his gut, relied upon a hunch. He stated as much and that is in the record.

Douglas made this point in his dissent.

But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had "probable cause" for believing that that crime was being committed.

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Given the facts of Terry v. Ohio, McFadden had no facts that he could articulate that a crime was, is, or was about to be committed. He relied only on his experience...aka his gut, a hunch to seize Terry et al.

I'd have to question the wisdom of equating experience with a 'hunch'.
If an experienced astronautical engineer says that based upon his 4-7 yrs of college and his diploma, that a certain shape is un-aerodynamic nightmare, I'm probably going to say its a bit more than some inchoate and unparticularized 'hunch' by a High School drop-out.

But just to make sure we're discussing the same particulars...
Are you objecting to a law enforcement officer performing a 'pat down' on someone he's detained and who might pose a threat to him, or are you objecting to a law enforcement officer forming particularizes suspicions based upon multiple observations of unusual activity, or some third option*?




*I wouldn't want you to think I was attempting to use the "false dilemma" argument.

Fallschirmjäger said:

I'd have to question the wisdom of equating experience with a 'hunch'. ...

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Terry was a concealed weapons crime that McFadden had no facts to infer that Terry et al were carrying any weapons prior to he unlawfully seizing them on his experience...aka a hunch, a gut feeling. McFadden stated that his experience guided his actions not any particularized facts.

But just to make sure we're discussing the same particulars...
Are you objecting to a law enforcement officer performing a 'pat down' on someone he's detained and who might pose a threat to him, or are you objecting to a law enforcement officer forming particularizes suspicions based upon multiple observations of unusual activity, or some third option*?

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I object to McFadden believing that a crime was about to occur at some point in the future based only on his gut felling...aka his experience.

McFadden assumed the role as arbiter of "unusual activity." If McFadden had a suspicion of future crime he should have gigged those fellas on loitering charges, they were loitering based on the facts evident in the court records, and then Terry v. Ohio would have never been Terry v. Ohio. I reject any cop using experiences to determine what is unusual activity. If a crime is witnessed then the cop must act only as the law allows.

*I wouldn't want you to think I was attempting to use the "false dilemma" argument.

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Honestly, the only dilemma is how the court turned a unlawful seizure (4A) into a officer safety case.

If watching two people make a full dozen trips to stare into the selfsame shop window and drawing on the experience of watching/hearing of others do the same is "just an inchoate hunch", what would your definition of experience be?

How many times to you have to hear your children play and then suddenly go quiet before you can point to experience rather than just a hunch that their behavior needs investigation?

And... why if an officer is detaining multiple suspects should it be against any policy for him to do a search for weapons? Why do you seem insistent that he allow himself to be drawn on before he can takes steps to ensure his safety?

Fallschirmjäger said:

If watching two people ...

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Rewording the incorrect findings of the majority is not a logical defense of McFadden's actions. The dissent was quite clear and reasonable. If McFadden thought crime was afoot he could have pinched those fellas on loitering charges and then a search of Terry et al would have been authorized. He did not do that. McFadden unlawfully seized those fellas based only on a gut feeling. Experience is no different than a cop stopping you "because you don't look like you're from around here."

Appeal to emotion regarding McFadden searching for weapons. McFadden compromised his own safety when he used a hunch to seize Terry et al.

If you are going to continue to confuse 'hunches' and 'experience' then I don't really see the point in continuing. As they say, you can lead a horse to water but you can't teach it calculus.

Fallschirmjäger said:

If you are going to continue to confuse 'hunches' and 'experience' then I don't really see the point in continuing. As they say, you can lead a horse to water but you can't teach it calculus.

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I am not confusing hunch/experience, I am equating hunch with experience.

Terry v. Ohio created RAS out of thin air which permits a cop to use his experiences (nothing but a hunch), while lacking any facts to indicate that a crime has occurred or is occurring in his presence, to seize a citizen for investigative purposes.

...the police officer must be able to point to specific and articulable facts...

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What facts? What crime did McFadden witness?

The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but, rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation.

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Here ya go. The court did not care whether or not McFadden had any facts to seize anyone. They accepted McFadden's claim that his experience equated to facts simply because McFadden could articulate his experiences.

I can articulate anything as a fact but this does not make my facts true. Such as (your example) my kids are likely up to no good when they go quiet while playing outside. It does not mean that they are in fact up to no good, it just means that they are quiet. I too would investigate, but I need not seize them to see if they are up to no good, just observe and act when no good is observed. McFadden acted on his experiences regardless of the facts before his own eyes. It would be nice if them fellas, especially Katz, were charged with any other crimes based on that encounter with McFadden.

It should boggle the mind that the court laid out all of the reasons (behaviors) McFadden should not have seized them fellas and then instantly pivots to that they were up to no good and McFadden did good seizing then fellas.

OC for ME said:

I am not confusing hunch/experience, I am equating hunch with experience.

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And that's where you first went wrong.

In my decades of experience, 2+2 has always equaled 4, no more and no less. If someone asks me what 2+2 equals, it it a hunch or experience that prompts me to answer, "four"?


A hunch is seeing a green man walking in a blue neighborhood and saying to yourself, "Them ol' green guys are always up to no good, I better stop and question him."
Experience is seeing a green man walking in a blue neighborhood and stopping at every address to try and see if the door is unlocked before moving on to the next house and saying, " I say, old chap, that rotter's up to no good, I should have words with him."


But you have me curious... if you equate a hunch with experience then is there no such thing as an experienced doctor and they're all curing diseases based merely on hunches? Does that apply to hunters? Football Quarterbacks?

Fallschirmjäger said:

... But you have me curious... if you equate a hunch with experience then is there no such thing as an experienced doctor and they're all curing diseases based merely on hunches? Does that apply to hunters? Football Quarterbacks?

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If you rely upon a doctor who uses his experiences alone to diagnose your ailments I would seek a new doctor. I am not sure what doctors you see but the doctors I see are directed to gather as many facts as possible (testing) before providing a diagnosis.

Hunters use the available facts (tracks and other animal signs) to set their butts on the ground and hope a critter wanders by.

Not sure what a QB as to do with Terry v Ohio.

Do cops in your neck of the woods investigate every door to door salesman? It appears that you support cops investigating every fella who goes from door to door trying to earn a living.

http://www.ca4.uscourts.gov/Opinions/Published/115084.P.pdf

Terry v. Ohio was long before US v Black. If only Black would have made it to SCOTUS Terry would likely have been scuttled. The 4Th Circuit pretty much eviscerated the "logic" in the Terry ruling that endorsed McFadden's unlawful seizure.

I'll trust a doctor with experience any day over someone that just uses hunches. With a hunch you don't need the experience that comes from attending medical school or doing an internship. Your barber could have a hunch, but experience tells me he'd be a horrible doctor.

I haven't seen a door-to-door salesman in decades. At least not one that wasn't trying to scam me or do a little casing for a house break-in. Maybe it's different out in the sticks, I dunno.

I have to disagree with you re: US v Black. It's quite clear that in Black the justices saw no evidence of any reasonably suspicious activity that would have justified the seizure of Nathanial Black. On the other hand, in Terry the justices noted a full dozen instances of Terry's behavior that eventually established that his behavior was suspicious.. and judging from the two handguns recovered, the Detective's supposed inchoate, half formed 'hunch' was absolutely correct. Funny, ain't it?

Fallschirmjäger said:

I'll trust a doctor with experience any day over someone that just uses hunches. With a hunch you don't need the experience that comes from attending medical school or doing an internship. Your barber could have a hunch, but experience tells me he'd be a horrible doctor.

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Not sure who your directing this comment to.

I am not sure what doctors you see but the doctors I see are directed to gather as many facts as possible (testing) before providing a diagnosis. - OC for ME

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I haven't seen a door-to-door salesman in decades. At least not one that wasn't trying to scam me or do a little casing for a house break-in. Maybe it's different out in the sticks, I dunno.

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Interesting. Does not Georgia have lawn maintenance companies that send a employee from door to door in many suburban neighborhoods offering to cut lawns for a nominal fee?

[/quote]I have to disagree with you re: US v Black. It's quite clear that in Black the justices saw no evidence of any reasonably suspicious activity that would have justified the seizure of Nathanial Black. On the other hand, in Terry the justices noted a full dozen instances of Terry's behavior that eventually established that his behavior was suspicious.. and judging from the two handguns recovered, the Detective's supposed inchoate, half formed 'hunch' was absolutely correct. Funny, ain't it?[/QUOTE]If you are not going to actually read US v. Black then come out and say so...will save time.

Certain apartment complexes in the Eastway Division are known for armed robberies and other violent crimes. As the officers patrolled, they observed a vehicle parked at the pump of a gas station. Though neither officer saw the vehicle pull into the gas station, during the approximately three-minute observation, the officers observed that the driver and sole occupant of the vehicle did not leave the car, pump gas, or go into the convenience store. Officer Zastrow believed this type of behavior was "unusual" and indicative of drug transactions. On this basis, the officers ran the license tag of the vehicle, which retrieved no outstanding traffic violations, and followed the vehicle as it traveled to a nearby parking lot located in between two apartment complexes. ...

http://www.ca4.uscourts.gov/Opinions/Published/115084.P.pdf

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The specific fact are different the mindset/experiences are the same. No criminal activity was observed and the cops used their experiences to initiate the encounter.

If you do not see the close parallels...

I've read Terry v Ohio several times and I've read US v Black probably an equal number. I agree with the court's decisions in each case and note that the courts reached differing conclusions because there are no parallels between the two.

If you want to make the case that there are "close parallels", go ahead and make your case, I'm listening. Just remember the burden of proof is on you to prove it, not on me to disprove any hypothesis you come up with.

OC for ME said:

--snipped--
Interesting. Does not Georgia have lawn maintenance companies that send a employee from door to door in many suburban neighborhoods offering to cut lawns for a nominal fee?

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Many municipalities in Virginia require that door-to-door solicitators have a permit issued to them by the local PD and that they have it on their person when conducting such business. Chesterfield, Va has such an ordinance.

http://www.nbc12.com/story/37848421/permits-are-required-for-solicitors-in-chesterfield

OC for ME said:

...No criminal activity was observed and the cops used their experiences to initiate the encounter.

If you do not see the close parallels...

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Evidently you are not reading my posts. Or, you are reading the portions of Terry and Black that coincide with your worldview.

Officer Zastrow believed this type of behavior was "unusual" and indicative of drug transactions. - US v. Black

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He [McFadden] added: "Now, in this case, when I looked over, they didn't look right to me at the time." - Terry v. Ohio

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You agree with Terry and the premise of that court that a cop can seize you whether or not you have committed a crime or are in the process of committing a crime...OK.

Grapeshot said:

Many municipalities in Virginia require that door-to-door solicitators have a permit issued to them by the local PD and that they have it on their person when conducting such business. Chesterfield, Va has such an ordinance.

http://www.nbc12.com/story/37848421/permits-are-required-for-solicitors-in-chesterfield

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Since a license is required to engage in that activity a cop has the authority to seize you to see if you are legal...right? Are cops driving around seizing lawn care service providers sales folks in neighborhoods to see if the have a license?

Chesterfield folks need to work to have that ordinance repealed...nothing but a money grab.

OC for ME said:

Since a license is required to engage in that activity a cop has the authority to seize you to see if you are legal...right?

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Not necessarily.
In general there are two ways laws may be written, one way can be illustrated by Georgia's law which requires a license to be carried at all times when carrying a handgun or weapon.
O.C.G.A.§ 16-11-137

The other method would be Tennessee's firearms law
39-17-1307. Unlawful carrying or possession of a weapon.
§ 39-17-1308 then establishes the defense to -1307, one of which is the possession of a handgun carry license.
NB because someone's going to bring it up - Open Carry of a handgun is legal in TN but not concealed carry without a permit.

If one reads TN's state code, reasonable suspicion of a crime occurs as soon as law enforcement is aware that a concealed weapon is being carried, whereas in GA an officer would have to suspect by sight, smell, hearing, or some other sense that the weapon being carried was being carried without a license in possession.