Was I just Terry Stopped?

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I have no idea how to classify this, or what/if I need to take any further steps......

So, I walked a few blocks up the road to a friend's house to get a haircut while waiting for a replacement-replacement part for my Jeep.

I was passed by a marked H'burg patrol car, nothing came of it. Still made a mental note for later mention here.

Got my hair cut, bs'ed a little with my friend, left her house, headed back to Autozone to finish working on my 'auto.

As I'm walking down the road, a marked Harrisonburg Explorer comes from behind me (I'm walking on the right hand sidewalk, the way I'm headed), hits the brakes, and half-way pulls over to me, blocking literally half the road.

Readying myself for the Permit Question, I stopped and turned to the obviously BPV'd officer.

"Excuse me sir, do you have a concealed carry permit for that?"

"It's not concealed, so I have no need for a-"

"I didn't ask that, I asked if you had a concealed carry permit for that."

"Negative. It's openly carried, therefore I need no perm-"

(This continues a couple of times)

"Can I get your name?"

"May I ask why?"

"I want to make sure you're legally allowed to have a gun."

"It's not illegal to carry a gun openly."

"Can I get your name?"

(Cue about 5 repetitions of this, with minor variations)

Me, noticing the difficulty traffic is having navigating around this jacked-up, decked-out Explorer: How about we move you over a bit, so we're not blocking traffic so much?

*I lean back off and out of his passenger side window, where I had been at his request, and step about 15 feet down the road and onto the curb, so traffic can pass more easily*

Me: "Now, is stopping people in this town a NORMAL occuran-"

"I just want to run your name so I can make sure it's not illegal for you to have a gun."

"It's not illegal for me to have a g-"

"I want to run your name so I know you aren't prohibited from carrying a gun."

*about five more passes, "OFC Friendly" here is obviously getting agitated, I maintain my usual "I left my care face at home" demeanor, which probably didn't help the situation.

Did help the shakes, though. :lol:

So, we continued this "What's your name?" "Is this normal to stop people that are walking down the street?" banter for a while. I can tell he's getting fed up, and decide to play the only Trump Card I had on me: A clean record.

I give him my name, he spells both first and last wrong, I figure this should be amusing even if something DOES come up, since I can say "Yeah, you spelled it wrong, try again."

Check comes back "No wants", by this time, I've heard about another break-in over on Port Republic while this guy's trying to prove himself right. Dispatch calls his car number (13, not so lucky today, I guess).

"Well, I guess you need to get over there."

He turns off his radio, doesn't even acknowledge it, and starts giving me a lecture on how I should get a CHP, more comfortable, less reaction from the public, he ends up going through the CHP speech about 8 times over the course of the next five minutes where I try to be nice to him, ask him about his background, try to see things from his side, try to be nice, you know?

"CHP, CHP, CHP."

"I'm guessing you grew up around here, or maybe live in this neighborhood."

"CHP, CHP, CHP."

"Well, how about [this one neighborhood on the other side of town I used to live in] what do you think about that place?"

"That place... it kinds has its ups and downs. Now, CHP, CHP, CHP. Oh, and situational awareness."

"Ever been to the Middle East?"

"Yeah, CHP, CHP, CHP."

Being that I've not responded at all to his CHP speeches, I think he finally decides it prudent to answer that burglary call, and departs.

Unfortunantly, my voice recorder has been on the blink the last few days, so I wasn't able to get any of this. :banghead:

Sorry! I can only fix and replace so much at once! Between my Jeep's start and the TPS, I've been a bit busy lately.


Edit: Almost forgot, I had to educate him on state preemption, information to which he turned up his nose and sneered. He didn't seem terribly interested in continuing the conversation after I mentioned I research law as a hobby (which, being on here, you kinda do), or that I was (based on his reactions) more versed in Carry law than he was.

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This actually gives me a use for my tape recorder I have but never had a use for.

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Would a reasonable person believe he was free to disregard the officer's inquiries?

When he pulled over, did he block your path?

Did he use an authoritative tone of voice that gave you the idea compliance might be compelled?

Did he give you any orders that had a commanding or authoritative tone of voice?

I'll try to hunt up the relevant court cases later tonight.



Yes, you need to file a complaint. His persistent badgering was rude, even if it turns out the totality of circumstances add up not quite enough to qualify as a seizure under Terry and later, related court opinions.

In Virginia, where OC is legal,he can'tforce you to stopjust so he can check if you are a prohibited possessor. 4th Amendment court opinions are your references. A good place to start is Terry vs Ohio. It is my understanding that "reasonable suspicion" is a concept that would have to apply before a brief minimally intrusive investigatory detention based on articulable facts could be compelled.

Please alsocomplain about the CHP lecture. And theearlier attempt towards"concealed means concealed."

This officer just proved to you that he considers the exercise of an enumerated right to justify stopping a citizen. See VA Constitution, Article I, Section 13.

Remember your useful phrases. "Officer, I know you are just doing your job but, :

• I do not consent to this encounter.
• I have nothing to say in the absence of my attorney.
• Why am I being detained?
• Of what crime am I suspected?
• Am I free to go?
• I do not consent to any searches or seizures."

Repeat as necessary.

If you had refused consent to the encounter at the outset, and had he continued with his questioning, you would likely have him on the spot for an unlawful detention.

Edited to add one of Mainsails favorite questions.

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scarletwahoo wrote:

This actually gives me a use for my tape recorder I have but never had a use for.

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tape? whats that??!!??

http://www.bestbuy.com/site/olspage.jsp?skuId=8717962&productCategoryId=abcat0805003&type=product&id=1200702766610

up to 300 hours for 35.00

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I think you should have asked the officer, not us! That whole rigmarole could have been avoided by just asking him, “Am I being detained?” If he says yes, “For suspicion of what crime are you detaining me?” Then, “Please call a supervisor out here.”

If he responded that you were not being detained, wish him a fine day, then turn and walk away.

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Others have recommended the Olympus VN4100PC. I have gotten one and find the blank sections tedious to wait through and haven't configured 'Wave to Text' yet to do the transcription.

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Citizen wrote:

Would a reasonable person believe he was free to disregard the officer's inquiries?

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Would you ignore a man in a large vehicle with two guns (one may have been a taser) and body armor?

When he pulled over, did he block your path?

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I was walking on the sidewalk. I ended up making him follow ME to so he would stop blocking literally half the street with his Explorer. (I walked a few feet down the street, and he followed me to continue the questioning)

Did he use an authoritative tone of voice that gave you the idea comliance might be compelled? Did he give you any orders that had a commanding or authoritative tone of voice?

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He repeatedly stated that I might be breaking the law by carrying a weapon in plain sight by being prohibited from carrying (felony/ domestic / crazy house).

His voice contained tone that implied he would make my evening as difficult as possible if I didn't comply.

I'll try to hunt up the relevant court cases later tonight.

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Danke.

Yes, you need to file a complaint.  His persistent badgering was rude, even if it turns out the totality of circumstances add up not quite enough to qualify as a seizure under Terry and later, related court opinions.

You are not required under any circumstances, even if you were carrying the gun illegally, to submit to ID just so he can check if you're a prohibited possessor.  Your reference is Terry vs Ohio.  He can ask, as in consensually.

Please also complain about the CHP lecture.  And the earlier attempt towards "concealed means concealed."

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Duly noted.

This officer just proved to you that he considers the exercise of an enumerated right to justify stopping a citizen.  See VA Constitution, Article I, Section 13.

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http://legis.state.va.us/Laws/search/Constitution.htm

Noted.

[*]Why am I being detained?"

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I did ask why I was being stopped, and his stated reason for stopping me was to see if I breaking the law by carrying a gun as a felon, domestic abuser, or if I had been involuntarily committed. He stated this multiple times, even when I asked him if this was standard procedure to do so.


I DID ask for his business card, which he claimed he did not have. He produced a blank one, and scrawled his name illegibly across the name line. "I don't want to spend my own money on them [business cards]."

I also copied down his license plate as he drove away, and remembered his car number, which I posted in the OP.


By the way, three stripes on the shoulder is Sargent, right?

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AbNo wrote:

[SNIP]


By the way, three stripes on the shoulder is Sargent, right?

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Stripes or Hash marks like this: / usually have to do with service time, usually these are at the bottom of the sleeve.

Chevrons like this: ^ usually indicate rank. Usually 3 ^ = Sgt

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Yep, three chevrons...

You would think someone like that would know better.

Then again, I REALLY PO'ed that anti-gun guy at the Bridgewater gun control debate last month.

Some doctorate he was.

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The question about a reasonable person feeling free to disregard has to do with a standard set bycourt(s).

I reallyneed you to answer whether there was a commanding or authoritative tone to his voice. Or, separately, just threatening. I'm guessing there probably was; but I need to know for sure. "A tone...make...evening difficult" isn't one of the standards set by the court. The questions I asked above are derived directlyfrom some of the objective standards established in courtopinions.

Abno said, "He repeatedly stated that I might be breaking the law by carrying a weapon in plain sight by being prohibited from carrying (felony/ domestic / crazy house)."

OK. Its time to slap this officer as hard as possible with the 4th Amendment. Just roll it up tight and whack him hard, figuratively speaking. The standard is a reasonable suspicion that a crime is, was, or is about to be committed based on articulable facts. Basically, a suspicion thatyou are breaking a law, not a suspicion that thereis a law that you are breaking.He had no reasonable suspicion you were breaking any law. If he did, he could have pointed to it. An example would be, "You're wearing a straight-jacket, so I think you might be a prohibited possessor. GimmeyourID." He was fishing.

In the text of Florida vs JL the US Supreme Ct. declined to make a 4th Amendment exception for a firearm. So, having a gun, alone, andwhere otherwise legal, gives no special reason to stop someone:

A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position. (emphasis Citizen's) http://tinyurl.com/2gppnu

The foregoing will still be affected by whether a reasonable person in the same position would have felt free to disregard the officer's inquiries.

I have to go back to work for a bit. I'll try to catch you up later with some actual court opinions.

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I imagine I'll encounter this at some point in my open carry career since I'm young (therefore I have more time for the law of probability to work it's magic). If/when I do: if I do take the hard line (the correct line) and I end up in jail, then what? I'm 21. I don't have money falling out of my pockets, or ears, or even in my bank account. Maybe later I will, but for now, after 4 years of college I have a lot more red lines than black...

I assume that somewhere at the end of a legal process the courts would find me innocent of anything that I could possibly be charged with but that is likely to be a long and costly process.

As I've gone over scenarios like this in my head, I think I'd react just like the original poster...try my best for a while and when the going gets tough (ie, the officer gets angry and/or makes it clear that he is not backing down) I'm spitting out my name, handing over my gun, etc, ad nauseum because he's the one with cuffs and a badge...in the end cuffs + badge always trump gun owner + rights (at least in round one).

Thoughts?

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SaltH2OHokie wrote:

I imagine I'll encounter this at some point in my open carry career since I'm young (therefore I have more time for the law of probability to work it's magic). If/when I do: if I do take the hard line (the correct line) and I end up in jail, then what? I'm 21. I don't have money falling out of my pockets, or ears, or even in my bank account. Maybe later I will, but for now, after 4 years of college I have a lot more red lines than black...

I assume that somewhere at the end of a legal process the courts would find me innocent of anything that I could possibly be charged with but that is likely to be a long and costly process.

As I've gone over scenarios like this in my head, I think I'd react just like the original poster...try my best for a while and when the going gets tough (ie, the officer gets angry and/or makes it clear that he is not backing down) I'm spitting out my name, handing over my gun, etc, ad nauseum because he's the one with cuffs and a badge...in the end cuffs + badge always trump gun owner + rights (at least in round one).

Thoughts?

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That's what voice recorders are for. Be firm, but polite, and file a complaint/lawsuit later if necessary/appropriate...

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SaltH2OHokie wrote:

SNIP Thoughts?

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Oh, my, yes.

There is nothing wrong with your approach. We each have to make our own decision as to how to handle a police encounter--the exact cop in front of us at that exact moment in that day.

With that in mind, let me point out a few things.

During the encounter, there are some things you can to do to strengthen your legal safety. You see, the cop is gonna do what he is gonna do, no matter what you do. If he wants your gun in violation of your rights, he's going to get it.

While you are under his control, your rights are whatever he thinks they are. He is the power of the state, standing right there in front of you.

Your game is to establish a stronglegal position. What I'm suggesting you aim for is to obtain for yourself the strongest possible negotiating position for later, after the encounter is over. Thenit becomesyour turn to turn the power of the state against him if he has done anything wrong. Even if it is only in the form of an internal affairs investigation, which in many departments is not a light matter.

I strongly believe Step #1 is tosay that you do not consent to the encounter itself. Having done this, if he continues the encounter over top of your refused consent, he had better have genuine reasonable suspicion, or he opens himself to your post-encounter complaint. It occurs to me that the majority of police detentions of OC'ers we've heard about did not have genuine reasonable suspicion. The standard phrases I've given above will help protect your legal standing on other points. Add in Mainsail's suggestions, and you're going a long way.

Your job is not to physically prevent violations of your rights. Your job is to protect your legal standing for later. Keep your eye on the ball. No matter what the cop does or says, protect your legal standing. Refuse consent to a weapon seizure, but comply. He might ignore your refusal, legally, if he has reasonable suspicion, illegally if he doesn't. You have no way to know for sure whether he has genuine reasonable suspicion or not. But, you don't have to know at that exact point in time. You only have to know the standard phrases above. Later, when you are out of his hands, you can dig for the details to find out whether he really did have justification for this or that.

Regarding ID, you could even say, "Officer, I do not consent to giving you my ID, but I will comply if you order it/insist on it." With no law authorizing the demand or requiring your compliance, you then have that much more ammunition for a post-encounter complaint for an unlawful ID demand. Let him take your wallet from your pocket, and you may even have an illegal seizure to complain about. You gave it to him only because he demanded it over top of your unwillingness. And yet, you were not being uncooperative.

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SaltH2OHokie wrote:

Thoughts?

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Here's some info from a post of mine some weeks ago. I was responding to someone else's questions.



I am not a lawyer. However, I'm not completely unstudied on the subject.

Welcome to the 4th Amendment! Your 4th Amendment rights against unreasonable searches and seizures are defined in court opinions by the US Supreme Court, VA Court of Appeals, andVA Supreme Court. Literally, the more you know these court opinions, the more you will know your rights. And, the limits of your rights, as recognized by the government, and the limits of the police officer's authority.

Think of a police encounter as a negotiation.Think of it also as a modifiedversion of Newton's 3rd Law of Motion: For every action (on your part) there is going to be a reaction (on the officer's part.)

There are:

• the rules of the game
• exceptions to the rules
• advantages and disadvantages forboth sides
• the tactics both sides employ
• gray areas

The more you know, the moreyou willbe able to manuever. More importantly, the more certain you areabout the law, the better.Personal opinions gleaned from an internet forum give the wise fellow very little certainty. The wise fellow willverify by goingstraight to the horse--the 4th Amendment, VA's Constitution, and the court opinions.

Here are some starters for you.These are my opinions. My understandings from personal study. Remember the part about police reactions to your actions when reading these:

1. In VA, you may not physically resist adetention. First and most important point. Do notphysically resist a police officer. You can always sort things outand/or file a formal complaint later, once you are out of their hands.

2. There is no statute in VA requiring you to even carry ID, much less show it upon LEO demand. Quick exception: VA law allows a police officer to arrest a person who he believes will ignore a summons. Some police use an ID refusal as evidence the person won't show up in court ona misdemeanor summons. Another exception: Drivers license when driving.

3. If an LEO demands your CHP,you must exhibit it, along with proper ID. This is not to say that you can't attempt a diversion by pointing out, "No CHP needed for OC, sir." Nor does it say that you can't leave the CHP at home when OCing.You don't need it for OC. If you don't have it with you, you can't show it.

4. Police are authorized to temporarily seize your weapon for officer safety and safety of others nearby under specific conditions given in court opinions.Whether you are cooperating is not one of theconditions, although it could have a bearing on the matter.

5. Your proper response will depend on how far you want to go and what you are willing to risk. For example, you will want to decide if during a traffic stop for speeding you are willing to risk a ticket instead of a warning by standing firm on your rights. Are you willing to be wrongfully arrested?


6.Assuming you are willing to take some risk and want to stand up for your rights, you could politelysay, "Officer, I know you are just doing your job, but:

A."I donot consent to this encounter."

B. "I have nothing to say in the absence of my attorney."

C."I do not consent to any searches."

D. "I do not consent to seizing my gun."

E. "Am I free to go?"

Memorize these, practice them, run through scenarios in your mind. These employ your most powerful advantage--your rights.They also set the stagefor a complaint later. Or a legaldefense.

Realize there are numerous ways police can respond to the abovestatements. I say "can respond" without respect to legality or whether they have the authority for any given response.Your rights are only ink on paper. Whether the police choose to recognize them or not, willfully or from ignorance, even if you assert them verbally, isanother matter.Becompletelyprepared mentally--don't let it shock youor surprise you—for the police to ignore your assertion of a right.Or question youabout why you areasserting itifyou supposedly are doing nothing wrong.

You can learn more by checking out the videos at [url]http://www.flexyourrights.org[/url] or you can see their entire video here: [url]http://tinyurl.com/5zt9gj[/url]

Again, welcome to the 4th Amendment.A good place to start learningabout your4th Amendment rights, police encounters,and guns is the landmark caseTerry vs Ohio. [url]http://tinyurl.com/2ue6hy[/url]

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roscoe13 wrote:

That's what voice recorders are for. Be firm, but polite, and file a complaint/lawsuit later if necessary/appropriate...

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Thanks for the reminder!

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Citizen wrote:

SNIP I'll try to hunt up the relevant court cases later tonight.

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A person is seized "only if, in view of all the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave." United States v.
Mendenhall, 446 U.S. 544, 554 (1980)



US vs Mendenhall: We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.[suP] [n6][/suP] Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio, supra at 19, n. 16; Dunaway v. 442 U.S. 200, 207, and n. 6; 3 W. LaFave, Search and Seizure 53-55 (1978).



'[If] the circumstances of the encounter are so

intimidating as to demonstrate that a reasonable person would

have believed [that] he was not free to leave if he had not

responded, . . . the [encounter] resulted in a detention under

the Fourth Amendment.'" Commonwealth v. Satchell

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Wow. Just wow. Keep us posted.

There wasno reason for you to be so accomodating to this officer, but bravo to you for standing your ground.

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Citizen wrote:

-snip-

3. If an LEO demands your CHP,you must exhibit it, along with proper ID. This is not to say that you can't attempt a diversion by pointing out, "No CHP needed for OC, sir." Nor does it say that you can't leave the CHP at home when OCing.You don't need it for OC. If you don't have it with you, you can't show it.

-snip-

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bothers me soooo much

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Citizen wrote:

The question about a reasonable person feeling free to disregard has to do with a standard set bycourt(s).

I reallyneed you to answer whether there was a commanding or authoritative tone to his voice. Or, separately, just threatening. I'm guessing there probably was; but I need to know for sure. "A tone...make...evening difficult" isn't one of the standards set by the court. The questions I asked above are derived directlyfrom some of the objective standards established in courtopinions.

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Yes. I was put under the distinct impression that I would be given undue (il)legal consequences if I did not comply with his demands that I "Come on over here, lean on the window" line.

He repeatedly attempted to trip me up in questioning (which, it WAS questioning), inquired about my business and where I was headed (to which he received nothing but VERY vague replies), asked me why I didn't CC.

"There are some bad people in this world." really seemed to stop him for a moment, though.

Let's not forget the repeated "encouragement" lectures to get a CHP.

Abno said, "He repeatedly stated that I might be breaking the law by carrying a weapon in plain sight by being prohibited from carrying (felony/ domestic / crazy house)."

OK. Its time to slap this officer as hard as possible with the 4th Amendment. Just roll it up tight and whack him hard, figuratively speaking. The standard is a reasonable suspicion that a crime is, was, or is about to be committed based on articulable facts. Basically, a suspicion thatyou are breaking a law, not a suspicion that thereis a law that you are breaking.He had no reasonable suspicion you were breaking any law. If he did, he could have pointed to it. An example would be, "You're wearing a straight-jacket, so I think you might be a prohibited possessor. GimmeyourID." He was fishing.

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I don't suppose the fact that he repeatedly told me to give him my ID, but settled for my name without argument has any merit?

Well, argument other than me asking repeatedly why he told me to stop walking down the sidewalk and come talk to him.

The foregoing will still be affected by whether a reasonable person in the same position would have felt free to disregard the officer's inquiries.

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I don't suppose tone, demeanor, and attitude that made me feel as though he'd make sure it was not in my best interests to leave counts?

I have to go back to work for a bit. I'll try to catch you up later with some actual court opinions.

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Thank you, Citizen.


If anyone has anything else to add (or posts this on some other forum, feel free to let me know. I want to kind of prepare properly for this before I go in.

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ed wrote:

tape? whats that??!!??

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Ed? What are you doing here? I thought that you were down in Richland, or eating pizza, somewhere....

Have you tested that recorder? Does it pick up while in a shirt pocket, or do you have to hold it up towardpeople as they speak? How is voice clarity? What do you like about it? not like? Etc.

Oh, yeah: is it bullet proof? :lol: