Repeater
Regular Member
This appears to be a very bad decision for Virginia gun owners.
The Virginia Supreme Court has now officially interpreted the Terry v. Ohio as "armed and dangerous" rather than "armed and presently dangerous" -- thus allowing a past record of weapons violations, for example, to factor into a LEOs determination that a frisk is allowed.
The dissent is rather blistering and writes specifically:
Remember, "criminal record" includes arrests. Thus, a person with a prior arrest record for a weapons violation (such as brandishing), even if Nol Pross'd, might still subject that person to a frisk.
Continuing:
Well, there you go. So, if you are in some police database, that alone will be sufficient to subject you to a frisk.
The dissent continues:
The Virginia Supreme Court has now officially interpreted the Terry v. Ohio as "armed and dangerous" rather than "armed and presently dangerous" -- thus allowing a past record of weapons violations, for example, to factor into a LEOs determination that a frisk is allowed.
The dissent is rather blistering and writes specifically:
In its opinion, the majority does not pair the officers’ knowledge of Smith’s prior criminal involvement with more concrete factors that would be necessary to create a reasonable suspicion that Smith was presently engaged in criminal conduct or was armed and presently dangerous at the time of the frisk. Instead, the majority holds that knowledge of Smith’s past criminal record was sufficient, by itself, to create a reasonable suspicion that Smith was armed and presently dangerous. The majority opinion contravenes all previous precedent on the issue.
Remember, "criminal record" includes arrests. Thus, a person with a prior arrest record for a weapons violation (such as brandishing), even if Nol Pross'd, might still subject that person to a frisk.
Continuing:
It is undisputed that the officer frisked Smith based solely upon the PISTOL alert.
Well, there you go. So, if you are in some police database, that alone will be sufficient to subject you to a frisk.
The dissent continues:
In apparent contravention of previous precedent, the majority holds that certain people, because of their criminal record, are subject to a pat down search if stopped for a minor traffic violation, regardless of whether the police have any contemporaneous objective indicia of their current involvement with criminal activity or of their being armed and presently dangerous. Inherent in the majority opinion’s ruling is the conclusion that individuals, who have been determined by a judicial officer to be sufficiently safe to release from custody, may be presumed by law enforcement officers to be armed and dangerous.
...
The decision of the majority results in the ironic situation in which individuals deemed by the legal system to be safe enough to be released into society can be regarded by police officers as inherently dangerous to the point that they can be frisked solely based upon an officer’s knowledge that they have been charged and lawfully released.