Repeater
Regular Member
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 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.
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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?
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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.