Arrested at Salem Fair

nuc65 said:

No matter his i's dotted and his t's crossed there is inherent in the 'system' a need for a qualified attorney. In the minds of the judges and other gears of the system a 'person' without an attorney does not get listened to as well as someone inside the system. Hence, the qualified attorney.

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user said:

Say, did those cops have guns in close proximity to children? Sounds like a threat to national insecurity to me.

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TFred said:

I seem to recall a recent opinion posted here where the judge said it was entirely reasonable to act a little nervous when a cop was strutting all their stuff in your face. I don't remember the thread or the case though.

TFred

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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. Appellant's "hand started to tremble." Appellant was "shifting his body weight," and appeared to be "looking for different avenues of escape." The officer believed appellant's behavior far exceeded the "small degree of nervousness" typically observed during a routine police encounter.

Cofer asked appellant a third time if he had any weapons. When appellant remained unresponsive, Cofer placed him on the wall near the front door of the store. Concerned that appellant had a concealed weapon, Cofer told appellant he was going to pat him down for weapons for the officer's safety. Cofer began the pat down.

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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.

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Next, we consider appellant's conduct when the officer inquired whether appellant had any weapons. The officer described appellant as nervous, with his hands trembling. He appeared to be "looking for different avenues of escape."

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. See Moore v. Commonwealth, 12 Va. App. 404, 406-07, 404 S.E.2d 77, 78 (1991) (holding that, where the pat-down search was based only on the officer's "subjective evaluation of the severity of [appellant's] nervousness," "the officer lacked sufficient justification to conduct the pat-down search"). "Nervousness . . . standing alone, is insufficient to justify a frisk for weapons, but 'nervous, evasive behavior is a pertinent factor' for consideration in assessing the totality of the circumstances." McCain, 275 Va. at 554, 659 S.E.2d at 517 (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)); see also Walker v. Commonwealth, 42 Va. App. 782, 792, 595 S.E.2d 30, 35 (2004) (holding appellant's strange behavior and "very nervous" appearance in area known for drug activity, and officer's concern when appellant refused to remove hand from his pocket, justified frisk); James, 22 Va. App. at 745-46, 473 S.E.2d at 92 (holding passenger's "jittery" behavior while officers arrested driver on felony warrant and passenger's unresponsiveness to requests to keep hands in view supported a frisk). In contrast to these examples, the record here does not show that appellant concealed or attempted to conceal his hands from Officer Cofer.

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Repeater said:

Not that recent, but clearly established:

Thompson v. Commonwealth, 04/28/2009


Sounding familiar?



No doubt we all would agree with the Appellant, but what does the court say? Here:


When a Virginian is openly carrying a handgun or some other weapon, he is obviously armed, but unless he is also presently dangerous, there is no authority to frisk that person -- or disarm that person by "requesting" he surrender his handgun.

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user said:

Take a look at Goodman v. Commonwealth, 07 VAp UNP 1971061 (2007); it's an unpublished opinion, so no good as "precedent", though useful as "persuasive authority" - good analysis, excellent cites.

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Although the informant’s information provided Officer Ingram with reasonable suspicion to believe appellant possessed a firearm, nothing in the record provided reasonable suspicion for the belief that this possession was illegal. “Absent some disqualifying status (being a felon, juvenile, or drug possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon.” Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev’d on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004). Further, nothing in the record indicated appellant was carrying the firearm in a legally proscribed manner, such as in a concealed fashion without a permit. See Code § 18.2-308. The Commonwealth also concedes that appellant’s attempts to sell the handgun were not illegal and, thus, that information about his sales efforts, standing alone, was insufficient to justify a Terry stop.

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CPerdue said:

I'm actually in Salem. I sent off a, "your no guns sign is illegal," letter to the city atty. a couple years back regarding the signage at the Moyer Sports Complex (city owned softball fields and picnic area). They wrote back that yep, you are correct, and the sign was changed immediately.

The point is that the city does know better and there is no way this should have happened.

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CPerdue said:

...
My apologies for my local knuckleheads, and I look forward to my taxes going up to pay for your settlement.

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user said:

I wonder what's the etymology of "knuckleheads"? A very good and descriptive term, without any of the references to reproduction or excretion that make other such terms offensive.

Knucklehead :banana:

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Blk97F150 said:

user said:

I wonder what's the etymology of "knuckleheads"? A very good and descriptive term, without any of the references to reproduction or excretion that make other such terms offensive.

Knucklehead :banana:

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Naps Nifty Dictionary:

Knucklehead,
A person who is brainless, thoughtless and devoid of personality or ethics, such as "The Commonwealths Attorney in Surry is a Knucklehead"

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peter nap said:

Blk97F150 said:

user said:

I wonder what's the etymology of "knuckleheads"? A very good and descriptive term, without any of the references to reproduction or excretion that make other such terms offensive.

Naps Nifty Dictionary:

Knucklehead,
A person who is brainless, thoughtless and devoid of personality or ethics, such as "The Commonwealths Attorney in Surry is a Knucklehead"

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They are frequently their own worst enemy. At the least, they are not on very friendly terms with themselves it would seem.

They are known to self-destruct, implode, step on their own tail and are incapable of cleaning up their own messes w/o slinging it at everyone in sight.

They contribute in no small way to their own downfall, yet take no personal responsibility.

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user said:

Can you document the notice given to the city, and are you willing to testify about it if subpoena'ed to do so?

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Tosta Dojen said:

Chief Dudley did reply to my complaint. I have several thoughts about this reply, which I'll be keeping to myself for the present.

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Tosta Dojen said:

I should not have to explain to you that your officers' application of the law is a travesty.

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user said:

without any of the references to reproduction or excretion that make other such terms offensive.

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ixtow said:

Disciplinary actions are a personal matter to be kept secret from the public eye?

I politely suggest the OP apply his own disciplinary actions, if this is to be the CLEO's attitude.

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Skeptic said:

I wonder if the chief meant "personnel" rather than personal. .

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