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Thread: Thompson v. Commonwealth (Norfolk PD)

  1. #1
    Regular Member Repeater's Avatar
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    This opinion seems to support Mike's advice regarding LEO encounters. As long as your hands are clearly visible to the officer AND you make no "furtive" movements of any kind, the officer cannot say that you are "armed and dangerous" -- thereby justifying a "Terry" frisk. If the officer asks if you have or possess a weapon, you are not obligated to answer his question. And you are free to walk away.

    Perhaps some day, NPD will follow the Constitution instead of their own prejudices.

    SNIP

    An officer may not automatically search a suspect in the course of a Terry stop, but he may frisk the suspect if he develops reasonable suspicion during the Terry stop to believe the particular person to be frisked is armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 117-18 (1998).

    Appellant suggests that his nervousness, even with his refusal to answer Cofer’s inquiry about weapons, without more is insufficient to give the officer reason to believe he was armed and dangerous. Appellant further points out that prior to the pat down he exhibited no behavior that suggested he was armed and dangerous.

    An officer’s perception of a suspect’s nervousness, without additional articulable facts reasonably suggesting the suspect is armed and presently dangerous, cannot justify a pat-down search.

    We again underscore that nothing in this record indicates that appellant conducted himself in such a way as to lead Officer Cofer to believe he was reaching for or concealing a weapon.

    Here, the Commonwealth cannot point to any facts which suggest that, based upon appellant’s clothing, he possessed a concealed weapon or was otherwise armed and dangerous.

    Appellant initially agreed to the encounter and it occurred in a public place, yet appellant was under no obligation to respond to Officer Cofer’s questions. See Cost v. Commonwealth, 275 Va. 246, 253, 657 S.E.2d 505, 509 (2008) (“[A]ppellant’s failure to respond to the officer’s questions is of no particular significance because [appellant] was under no obligation to respond to [the officer’s] questions.”). Cofer observed appellant for nearly fifteen minutes and did not witness appellant or his companions engage in criminal activity. Equally important, the record is silent as to appellant making furtive gestures or concealing his hands.

    Officer Cofer may have had a hunch that appellant was involved with drugs because of the neighborhood, the amount of time he spent outside the convenience store, and appellant’s refusal to answer questions. However, such a hunch does not rise to the level of reasonable suspicion. The officer’s interaction with appellant during the brief encounter did not elevate that hunch to reasonable suspicion because Officer Cofer developed no additional facts during the course of the encounter that would support a reasonable suspicion that appellant was involved in criminal activity or was armed and dangerous. Thus, we find that Officer Cofer’s frisk of appellant for weapons was not supported by a reasonable belief he was armed and presently dangerous. See Roulhac, 50 Va. App. at 19, 646 S.E.2d at 10 (“Without consent or reasonable suspicion that appellant was armed, [the officer] had no lawful authority to grab appellant and to pat him down for weapons.”). To that end, we hold that the evidence recovered as a result of that illegal search was not admissible at trial.

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    Regular Member wylde007's Avatar
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    And even then, the officer's "perception" of nervousness or articulation is subjective.

    It's nice to see a court of any kind actually stand up for the rights of citizens.

    Gimme more of this.
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    Definitely a good opinion, but I am surprised they let this dirtbag off, even though the law would so require. Here is a similar case from the Virginia Supreme Court, which gives the lesson do not consent to any searches.

    http://www.courts.state.va.us/opinio...wp/1071189.pdf

    Reaching into pockets after being told not to has been held to give RAS for patdown search as reasonable basis of armed and dangerous.


    And the Norfolk police seem to conduct plenty of illegal searches. Here is another one.

    http://www.courts.state.va.us/opinio...wp/0247081.pdf


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    Campaign Veteran marshaul's Avatar
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    Jonesy wrote:
    Definitely a good opinion, but I am surprised they let this dirtbag off, even though the law would so require.
    Perhaps if the officer had followed the law, he could have obtained a legal conviction.

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    Regular Member glockfan's Avatar
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    I lived in New York City before Virginia the cops there "stopped, frisked and searched 531,159 New Yorkers last year, up from 468,732 in 2007 and 315,483. In 2008, 51 percent of people stopped by police were black, 32 percent were Latino, and 11 percent were white. And 88 percent were totally innocent and sent on their way."

    What a huge difference between NY and VA!

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    glockfan wrote:
    I lived in New York City before Virginia the cops there "stopped, frisked and searched 531,159 New Yorkers last year, up from 468,732 in 2007 and 315,483. In 2008, 51 percent of people stopped by police were black, 32 percent were Latino, and 11 percent were white. And 88 percent were totally innocent and sent on their way."

    What a huge difference between NY and VA!
    New York? What country is that, France? Hahaha, welcome to the land of freedom.

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    glockfan wrote:
    I lived in New York City before Virginia the cops there "stopped, frisked and searched 531,159 New Yorkers last year, up from 468,732 in 2007 and 315,483. In 2008, 51 percent of people stopped by police were black, 32 percent were Latino, and 11 percent were white. And 88 percent were totally innocent and sent on their way."

    What a huge difference between NY and VA!
    Virginia courts tend to be very balanced, and their judgments very sound.

    But what do you expect from a state that gave us Thomas Jefferson and George Washington?

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    This is a great decision reminding everyone of the need for the officer to have reasonable suspicion that a person is both "armed and presently dangeous" to force him to be patted down for a weapons check.And reminds folks that they need not answer questions about weapons when being detained.

    However what is kind of funny in this case is that it could also have been resolved under the first terry prong - no reasonable suspicion to detain passenger. While the cases cited indicated that officers may "ask" passengers to exit the vehicle, the passenger was not officially detained to begin with - Fourth Amendment jurisprudance is always a bit complicated when you try to aply it.

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    marshaul wrote:
    Jonesy wrote:
    Definitely a good opinion, but I am surprised they let this dirtbag off, even though the law would so require.
    Perhaps if the officer had followed the law, he could have obtained a legal conviction.
    The constable blundered. Too bad.

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    Mike wrote:
    However what is kind of funny in this case is that it could also have been resolved under the first terry prong - no reasonable suspicion to detain passenger. While the cases cited indicated that officers may "ask" passengers to exit the vehicle, the passenger was not officially detained to begin with - Fourth Amendment jurisprudance is always a bit complicated when you try to aply it.
    No 'passenger' was involved. This was not a traffic stop.

    From the opinion:

    The officer observed appellant standing with two other men “loitering” in front of a convenience store on Lafayette Boulevard. Signs prohibiting loitering or trespassing were posted in front of the store, and the City of Norfolk had authorized the police department to enforce “no trespassing” at that convenience store.
    That makes this opinion even more important, because it clearly applies outdoors anywhere a Virginian may carry, such as a park or on a sidewalk.

    The disturbing fact of the case follows:

    Upon seeing Officer Cofer, appellant started walking toward the front door of the store, but he voluntarily turned around at Cofer’s request. Cofer asked to see appellant’s identification, stating that he wanted to check whether appellant had any outstanding warrants. Appellant gave Cofer the identification, offering no explanation as to why he was standing in front of the store.

    While waiting for the warrant check, Cofer asked appellant if he had any weapons or contraband. Appellant did not respond, and Cofer repeated the question. Appellant again was unresponsive and began acting nervously.
    This was a 'Stop and ID' case. No doubt, the NPD 'asks' (in reality, demands) identification quite often. Your papers please. Now, what if Thompson has refused this 'request' -- what then would have happened to Thompson?

    Many citizens are intimidated by the police, which is understandable. Refusing consent for anything, even while visibly nervous (Appellant’s “hand started to tremble”) should not convert a LEO Encounter into a Terry Stop.

    A great opinion.

  11. #11
    Regular Member glockfan's Avatar
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    Dispatcher wrote:
    Virginia courts tend to be very balanced, and their judgments very sound.

    But what do you expect from a state that gave us Thomas Jefferson and George Washington?
    There was a story in the New York Times just today about how they stop people in New York City:

    http://www.nytimes.com/2009/05/13/ny...l?ref=nyregion


    "Mr. Kelly said last month that the “stop-and-question process is a difficult one for us and certainly for the public,” and announced the start of a pilot program requiring officers to explain why the stops were taking place....in three precincts — in Harlem, the South Bronx and East New York, Brooklyn — officers were handing out baseball card-size slips of paper explaining both the legal foundation for the stops and some common reasons for them, including “carrying what appears to be a weapon,” and “sights or sounds suggestive of criminal activity (ringing alarm, running from crime scene).”
    In the report released on Tuesday, some other reasons for the stops and frisks included “furtive movements,” wearing clothes “inappropriate for the season” or clothes “commonly used in a crime.”"


    Let us not forget the freedom we have in Virginia. I lived under New York's tyranny for too long.

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    glockfan wrote: This response has been great. NYC is a horrible place. Those serfs willingly re-elect Herr Bloomberg.

    From the NY ACLU:

    Record Number of Innocent New Yorkers Stopped, Interrogated by NYPD

    The NYPD stopped and interrogated more innocent people during the first three months of 2009 than during any three-month period since the Department began collecting data on its troubling stop-and-frisk program.

    These innocent people did nothing wrong, but their names and addresses are now stored in a police database.

    In a letter sent today to NYPD Commissioner Raymond Kelly, the NYCLU expressed deep concern about the blanket use of the stop-and-frisk practice and about the NYPD retention of the name and home address of everyone it stops. Calling the database “a gross violation of privacy,” the NYCLU called on Kelly to end the practice of recording the names and addresses of everyone stopped and to expunge from the database the names and addresses of everyone stopped without being arrested or given a summons as well as the names and addresses of all people who were arrested or given a summons but whose charges were dismissed or otherwise disposed of.

    “The NYPD is, in effect, building a massive database of black and brown New Yorkers,” said NYCLU Associate Legal Director Christopher Dunn. “Innocent New Yorkers who are the victims of unjustified police stops should not suffer the further harm of having their personal information kept in an NYPD database, which simply makes them a target for future investigations.”



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    Regular Member paramedic70002's Avatar
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    A Terry stop/frisk is to determine criminal intent and look for weapons. Now I'm no legal eagle but wouldn't the presence of an open gun somewhat negate the whole process, rendering any such stop unconstitutional in the case of a frisk?
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

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    Repeater wrote:
    glockfan wrote: SNIP This response has been great. NYC is a horrible place. Those serfs willingly re-elect Herr Bloomberg.

    From the NY ACLU:

    Record Number of Innocent New Yorkers Stopped, Interrogated by NYPD
    So, the ACLU is just now getting around to protesting Terry stops and electroniccompilation of field contact card information?

    Stop-and-frisks were going on before Terry vs Ohio(1968?). Its mentioned in a concurring or dissenting opinion. The opinion even mentions something to the effect of the indignity heaped on minorities or their resentment over it.

    This is not to say I don't see a need to fuss.

    If the NYPDisinterested inpublic-relationswith the cards,maybe theycan start instead by having the cops be more careful about stopping people unnecessarily. I kinda doubt the number of crooks in NYC jumped by 18% in the first few months of 2009.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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