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Thread: May a LEO order you to empty your poclets under 'Terry' -- Fourth Circuit?

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    May a LEO order you to empty your poclets under 'Terry' -- Fourth Circuit?

    Please read Orin Kerr's blog at Volokh. He says the Circuits are split on this. does anyone here know if either the Fourth Circuit or the Virginia Supreme Court has addressed this?

    I would hope that Virginians have a right to say "NO!" to any cop who barks and order to "Empty Your Pockets!" during a Terry stop. The danger of this should be obvious: anything that is now exposed to the LEO would invoke the "Plain View" doctrine and could be used against you.



    Do Orders to Empty Pockets Exceed the Limits of Terry v. Ohio?
    First, some background. Under Terry v. Ohio and its progeny, the police can “pat down” a suspect for weapons if they have specific and articulable facts that the suspects are armed and dangerous. The cases say that this has to be a search for weapons, not drugs. If an officer feels something through clothing and he suspects that the “something” is drugs, not a gun, he can’t pull out the something and open it to look for drugs.

    ...

    Police orders to empty pockets potentially go far beyond that power. A police order to a suspect to empty his pockets can allow an officer to do indirectly what he can’t do directly. Terry doesn’t allow the police to just reach in and empty a suspect’s pockets, exposing all of its contents to plain view. See Sibron v. New York. Rather, Terry requires officers to pat down the suspect from the outside and then only retrieve what may be a weapon. The question is, does the Fourth Amendment allow police officers to order suspects to empty their pockets in lieu of conducting the frisks directly? That is, can the officer order the suspect to do what the officer cannot himself do?

    ...

    But the trickier question is whether that search is a “reasonable” search under Terry. My quick research suggests that the lower courts are divided on the question.

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    Quote Originally Posted by Repeater View Post
    Please read Orin Kerr's blog at Volokh. He says the Circuits are split on this. does anyone here know if either the Fourth Circuit or the Virginia Supreme Court has addressed this?

    I would hope that Virginians have a right to say "NO!" to any cop who barks and order to "Empty Your Pockets!" during a Terry stop. The danger of this should be obvious: anything that is now exposed to the LEO would invoke the "Plain View" doctrine and could be used against you.



    Do Orders to Empty Pockets Exceed the Limits of Terry v. Ohio?
    I would think that it should be obvious, even to a judge or lawyer. If a police officer orders you to empty your pockets and you are carrying some form of contraband, that would be a compelled self-incrimination, which would violate not only the Fourth Amendment (being an unreasonable search), but also the Fifth Amendment.

    If questioning someone without Mirandizing them can be sufficient to throw out their answers, then forcing someone to empty their pockets (and potentially incriminate themselves) should similarly be enough to throw out any evidence collected from it.
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    If I had to guess (and its just a guess..), but the police perspective would be that its a 'voluntary request' to empty your pockets... and if you complied, you did it voluntarily.. not because it was an order or demand. You know, sort of like 'you don't mind if I take a look in your car... ' (as he starts searching)

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    Quote Originally Posted by Blk97F150 View Post
    If I had to guess (and its just a guess..), but the police perspective would be that its a 'voluntary request' to empty your pockets... and if you complied, you did it voluntarily.. not because it was an order or demand.
    That is a concern. Even if you considered it a 'command' the LEO could simply testify in court that it was 'voluntary' -- he said/you said.

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    Well since the courts have already addressed terry is an outer clothing search and have even addressed how the "pat" is conducted. So with that said I don't see any court upholding a Leo telling someone to empty out their pockets under Terry. And it wouldn't even make sense... If there was a weapon in there, why would a Leo want them to pull it out of their pocket?

    Is this a specific case you know about?

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    I have to address something in the unattributed material (by Orin Kerr?) quoted above.

    I have read a number of court cases where the Terry-searching cop, while searching for a weapon, felt something that was obviously a pot pipe or baggy of drugs. As far as I recall these convictions were allowed to stand as a variation on plain-view doctrine. Call it plain-feel. So, as far as I know, a cop who feels what is probably a drug pipe or a baggy of pot in a pocket has probable cause to remove it from the pocket. If it is contraband, the items would not be suppressed by the trial court, according to my understanding.

    As to the underlying question in the OP--can a cop order a Terry detainee to empty his pockets? It is an absurd question. The cop would be telling the detainee to grasp what is suspected to be a weapon. While the courts may dicker and dither about how best to support police and diminish rights, it is begging to be killed to pull your knife or gun from your pocket while an armed cop and his pals are standing right there. Thank you very much, you just gave the cop a plausible reason to kill you. Even though you did it at his orders, and even though you only exhibited Ability and Opportunity without showing Intent, the police will have little trouble gathering sympathy for having to make a "split second decision" while "confronting a dangerous suspect."

    I'm betting this question arises because some cops have been cheating on Terry searches, and forgetting the reason for Terry searches, they slopped over into verbally ordering pockets emptied. We've seen this before with identity document demands--some cops in certain areas have been demanding identity documents for so long without authority that they completely forgot they didn't have the authority and came to expect compliance, and got bent out of shape when it was refused.

    Alas, I have no info about a VA appellate court or 4th Circuit federal appeals court (covers VA) case directly on point.

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    United States v. Reyes, 349 F.3d 219 (5th Cir. 2003).

    Quote Originally Posted by NovaCop10 View Post
    Well since the courts have already addressed terry is an outer clothing search and have even addressed how the "pat" is conducted. So with that said I don't see any court upholding a Leo telling someone to empty out their pockets under Terry. And it wouldn't even make sense... If there was a weapon in there, why would a Leo want them to pull it out of their pocket?

    Is this a specific case you know about?

    Yes, thank you for asking. Kerr excerpts this opinion from the 5th Circuit (which includes Texas):

    United States v. Reyes, 349 F.3d 219 (5th Cir. 2003)
    Agent Morales did not frisk defendant after he detained him; rather, he asked defendant to empty his pockets and raise his shirt. Defendant contends that Agent Morales exceeded the bounds of Terry by requesting that defendant empty his pockets and lift his shirt. The issue then is whether asking a suspect to empty his pockets and raise his shirt is more intrusive than the frisk permitted in Terry and therefore prohibited by the Fourth Amendment. “Terry does not in terms limit a weapons search to a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible.” United States v. Hill, 545 F.2d 1191, 1193 (9th Cir.1976). Thus, the raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry. Id. Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” Baker, 78 F.3d at 138. At no time during the inspection for weapons did Agent Morales touch the defendant. Non-consensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. Agent Morales’ request that defendant empty his pockets and lift his shirt was permissible under Terry.
    What is disturbing is the rationale: "Terry does not in terms limit a weapons search to a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible." And that is taken from the 9th Circuit.

    So, "officer safety" excuses the 'End Justifies the Means' rationale?

    Well, as for our Fourth Circuit, as it turns out Reyes cites this as authority, courtesy the PRO-government Judge Wilkinson:

    United States v. Baker, 78 F.3d 135, 137 (4th Cir.1996)
    A police officer's interest in self-protection arises when he reasonably believes that a suspect is armed and dangerous; at that point, he has an interest in "taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry, 392 U.S. at 23, 88 S.Ct. at 1881. The steps taken by the officer for self-protection, however, necessarily intrude upon the individual's interest in personal security, which is protected from unreasonable governmental intrusion by the Fourth Amendment. See id. at 19, 88 S.Ct. at 1878-79. To determine whether the intrusion was reasonable under the Fourth Amendment, a court must analyze the competing interests of the officer and the individual. Id. at 20-21, 88 S.Ct. at 1879-80; see also Long, 463 U.S. at 1046-47, 103 S.Ct. at 3479-80.

    In finding that Officer Pope was restricted to conducting a patdown frisk, the district court erroneously concluded that a patdown frisk was the only permissible method of conducting a Terry search. This reasoning is incorrect because the reasonableness of a protective search depends on the factual circumstances of each case. See Terry, 392 U.S. at 29, 88 S.Ct. at 1884; cf. Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917 (1968) ("The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case."). Thus, a patdown frisk is but one example of how a reasonable protective search may be conducted. Cf. Adams, 407 U.S. at 147-48, 92 S.Ct. at 1923-24 (officer acted reasonably under the circumstances by reaching directly for weapon in waistband of suspect's pants); United States v. Hill, 545 F.2d 1191, 1193 (9th Cir.1976) (per curiam) (officer acted reasonably in lifting shirt of suspect to identify source of bulge in clothing).

    Balancing the officer's interest in self-protection against the resulting intrusion upon Baker's personal security, we hold that Officer Pope's direction was reasonable under the circumstances. Having formed a reasonable belief that Baker was carrying a weapon, Officer Pope had an immediate interest in determining whether Baker actually was armed and, if so, neutralizing any potential threat without assuming unnecessary risks. See Terry, 392 U.S. at 24, 88 S.Ct. at 1881. Directing that he raise his shirt required little movement by Baker and allowed Officer Pope to immediately determine whether Baker was armed without having to come in close contact with him. And, it minimized the risk that he could draw his weapon before Officer Pope could attempt to neutralize the potential threat. In comparison, complying with this direction involved a limited intrusion upon Baker's personal security. Indeed, this act was less intrusive than the patdown frisk sanctioned in Terry. The officer avoided the "serious intrusion upon the sanctity of the person" necessitated by the patdown frisk, which requires the officer to "feel with sensitive fingers every portion of the prisoner's body." Terry, 392 U.S. at 17 & n. 13, 88 S.Ct. at 1877 & n. 13. In sum, based on a balancing of the necessity for the search against the intrusion caused by the search, directing that Baker raise his shirt constituted a reasonable search limited to discovering whether he was carrying a concealed weapon. Cf. id. at 29-30, 88 S.Ct. at 1884 (applying de novo review to determine the reasonableness of the method of a protective search).
    Thus, in the Fourth Circuit, it would appear that LEO's have Carte Blanche to order persons to partially expose themselves without a warrant under expansive Terry interpretations, all in the stated interest of 'officer safety' -- left unanswered is whether LEO's in the Fourth Circuit have the court-granted authority to order persons to empty their pockets, thereby exposing their belongings to the officer's "plain view" inspection.
    Last edited by Repeater; 09-27-2011 at 06:24 PM.

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    Quote Originally Posted by Repeater View Post
    That is a concern. Even if you considered it a 'command' the LEO could simply testify in court that it was 'voluntary' -- he said/you said.
    Yes. I agree. 100%. That would be a huge concern. And other then possibly having some sort of audio recording, or video taping.... I'm not sure how that could be clairified either.

    This is an interesting topic...

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    I'm not sure why it's even a concern. They can cuff you and pat you down and if ASKED, you should say no!
    No should be the key word in the entire encounter.

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    DVRs

    This has always been my question.

    In a LEO encounter during which you might be cuffed and searched ... a situation in which a voice recording of the event would be crucial ... the LEO(s) will surely find the DVR and confiscate it. And, there goes your defense.

    Your thoughts?

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    Quote Originally Posted by USNA69 View Post
    This has always been my question.

    In a LEO encounter during which you might be cuffed and searched ... a situation in which a voice recording of the event would be crucial ... the LEO(s) will surely find the DVR and confiscate it. And, there goes your defense.

    Your thoughts?
    I think we spend too much time on "What if" situations.
    Sure it happens, but very, very rarely.

    Generalizing LEO's, they arrogant, narrow minded and holier than thou....Most are smart enough to know there are very few job opportunities outside of law enforcement for them and try hard to NOT DO SOMETHING THAT WILL GET THEM FIRED.

    Some people who record them have more than one audio/video source. I generally have three, one of which they will not be able to destroy the data. There are also private security cameras, dash cams and eyewitnesses.

    Very few will take the chance of losing their job by destroying private property to cover up a lesser infraction.

    There are more pressing things to worry about!

    A more relevant thing to think about are people that record but when ORDERED by a LEO to turn it off, they do. I've seen it happen a dozen times, at least once by a member here at the beach.

    During the American Revolution, the Officers of the standing army tended to dislike militias because they would run under fire. Things haven't changed. Training to handle the non violent LEO confrontations is important.
    Last edited by peter nap; 09-28-2011 at 08:18 AM.

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    You want another hypothetical?

    You are legal CC pocket carry, LEO "asks" you to empty your pockets making it clear you have no option, you come out with your holstered handgun held in a non-threatening manner, he goes for his in a panic. Should you shoot him before he can bring it to bear?

    If I am on that jury, and I believe there exists a clear perception of the need for self-defense, there will be no conviction.

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    As we said to very young children..

    USE YOUR WORDS! Dude, seriously? You are in conversation with the officer or are detained by him. Say "officer there is a legaly concealed firearm in my pocket how would you like to proceed?" Enjoy your lawsuit after but the chances of surviving stupidly reaching for the gun or the encounter with the second responders is minimal.
    Last edited by The Wolfhound; 09-28-2011 at 12:45 PM.

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    Quote Originally Posted by The Wolfhound View Post
    USE YOUR WORDS! Dude, seriously? You are in conversation with the officer or are detained by him. Say "officer there is a legaly concealed firearm in my pocket how would you like to proceed?" Enjoy your lawsuit after but the chances of surviving stupidly reaching for the gun or the encounter with the second responders is minimal.
    Amen!

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    Quote Originally Posted by peter nap View Post
    I'm not sure why it's even a concern.

    ...

    No should be the key word in the entire encounter.
    Except that saying "NO" to an alleged lawful order could potentially result in an arrest for Obstruction -- we know it as "Contempt of Cop" -- and that's dangerous.

    Having said that, I am intrigued by this opinion from Tennessee, discussing the meaning of Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977):

    Police can't order driver from car without RS after stop was over

    State v. Donaldson, 2011 Tenn. Crim. App. LEXIS 717 (September 15, 2011)
    As noted above, it appears the State has continued to maintain, as it did at the trial court level, that Mimms for all practical purposes grants law enforcement officers carte blanche authority to remove a person from his or her vehicle at any time, and for any reason, prior to the conclusion of a traffic stop; further the State insists that a valid traffic stop can never end, whenever issuance of a traffic citation is authorized, until such time as the driver has signed the traffic citation. In essence, the State asserts that a request for a driver to get out of the vehicle, referred to as a “Mimms request,” is virtually unassailable as long as the officer has withheld the driver’s ability to finish the tenure of the traffic stop.
    However, as John Wesley Hall notes, the court went on to conclude that "Ordering the defendant out of the car after the stop was effectively completed was unreasonable. There is no carte blanche to order a driver out of the car at any time without reason. Here, the officer did not consider the driver a safety threat."

    A blanket policy that allows cops to order persons to lift their shirts or empty their pockets would seem to be equally unreasonable for the same reason. Perhaps the only way to test this is to say NO.

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    We generally think of Terry as protection, but it's actually a bad ruling. This discussion shows why.

    Before Terry, there was no exception to the 4th Amendment. To seize a person or search them required a warrant (legally speaking; I know it wasn't always practiced that way). With the Terry ruling, SCOTUS created a new, legal, way to seize, search, and investigate people without a warrant. The standard was lowered from probable cause to reasonable suspicion, and it's been a slippery slope since the ruling.

    That said, Terry plainly does not authorize anything more than feeling through exterior clothing to detect a weapon, and only then if the officer has RAS that the crime is afoot (the basis for seizing the person in the first place), and RAS that the person is presently armed and dangerous.

    The hard outline of a weapon can be discerned when felt through outer clothing. Drugs have no particular "feel" -- a small bag of marijuana feels like tobacco, and a baggie full of crack might be lemon drops.

    Since a person is "seized" under 4A by every definition during a Terry stop, compelling them to display anything that isn't clearly a weapon is a 4A violation. Also, since they are seized per the 4A, the standard for what constitutes "compelling" is lower than it would be during a consensual conversation.
    Last edited by KBCraig; 09-28-2011 at 07:33 PM.

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    Quote Originally Posted by Repeater View Post
    Except that saying "NO" to an alleged lawful order could potentially result in an arrest for Obstruction -- we know it as "Contempt of Cop" -- and that's dangerous.

    .
    That's what the Cops are counting on Repeater. It's called a chilling effect.

    If people are so afraid of being arrested on bogus charge, they shouldn't be carrying a gun at all. In fact, they should just forget civil rights altogether and put their faith in the integrity of our legislators and Police..

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    Negative

    No case on those facts as yet in any court having jurisdiction in Virginia, as near as I can tell.

    I've been wondering whether the cops ought not be disarmed for citizen's safety. Why do they need to carry guns, anyway? Most of 'em don't clean their guns, don't practice, and don't even like guns. They're too handy with drawing their guns when there's no threat, and assaulting citizens, threatening them with being shot, for no good reason (an individualized emotional response to a situation, such as "I was in fear for my life", absent an objective body of fact supporting such a claim, is irrelevant). I don't think they should be allowed to carry guns unless they've got a CHP. Or else they should be prosecuted for brandishing a firearm every time they do so.
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    Quote Originally Posted by user View Post
    SNIP I've been wondering whether the cops ought not be disarmed for citizen's safety. Why do they need to carry guns, anyway? Most of 'em don't clean their guns, don't practice, and don't even like guns. They're too handy with drawing their guns when there's no threat, and assaulting citizens, threatening them with being shot, for no good reason (an individualized emotional response to a situation, such as "I was in fear for my life", absent an objective body of fact supporting such a claim, is irrelevant). I don't think they should be allowed to carry guns unless they've got a CHP. Or else they should be prosecuted for brandishing a firearm every time they do so.
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    i have to disagree that stop and searches are rare but way common. i have friends that getting stopped for WWB is so common they just look at it as SOP. "shake downs" are taught, as a tool to harass people into
    giving the LEO something to use. i think for every shake down you hear about there are probably 1000' that you don't hear about

    my comment is i do not consent to a search but i am not resiting. and have them do the dirty work
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    Quote Originally Posted by user View Post
    No case on those facts as yet in any court having jurisdiction in Virginia, as near as I can tell.

    I've been wondering whether the cops ought not be disarmed for citizen's safety. Why do they need to carry guns, anyway? Most of 'em don't clean their guns, don't practice, and don't even like guns. They're too handy with drawing their guns when there's no threat, and assaulting citizens, threatening them with being shot, for no good reason (an individualized emotional response to a situation, such as "I was in fear for my life", absent an objective body of fact supporting such a claim, is irrelevant). I don't think they should be allowed to carry guns unless they've got a CHP. Or else they should be prosecuted for brandishing a firearm every time they do so.
    So... you are against Open Carry?
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