Repeater
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imported post
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.
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.
