Terry stops

[Scutter01]

This was posted to the Virginia Citizens Defense League mailing list and is therefore Virginia-specific, but the comments are still valid.

Member Russ Troxel has written a thought-provoking piece about armed citizens experiencing a police Terry Stop because of carrying a gun.

By way of background, a "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established in a 1968 case, Terry v. Ohio. The issue in the case was whether police should be able to detain a person and subject him to a limited search for weapons without probable cause for arrest. The court held that police may conduct a limited search of a person for weapons that could endanger the officer or those nearby, even in the absence of probable cause for arrest and any weapons seized may be introduced in evidence.

Mr. Troxel wrote:

I am not a lawyer. The following are my personal observations based on my own research and discussion with others on the subject.

The following applies to foot encounters with police where there is a 911 call reporting a lawfully armed, law-abiding, peaceable citizen, the officer is Terry Stopping the citizen, and possibly seizing his gun. Driving or riding in a vehicle has rules that differ a lot on some points, including one big one about guns. Also, there are a number of angles and exceptions determined by the courts regarding the 4th Amendment (search and seizure). I mention none of these below; space does not allow it.

For the lawfully armed citizen who wishes to protect or exercise his rights during a Terry Stop, there are two problems. By creating barriers, these problems leave only a few options for protecting one's rights.

Problem number one is that the citizen will have no way of knowing for sure, at the time of the encounter, if the LEO has legitimate reasonable suspicion to make a Terry Stop, or whether the LEO has legitimate grounds to temporarily seize the citizen's gun.

All it takes is an embellished 911 call and the police may in fact have reasonable suspicion to detain (Terry Stop) the citizen, even if the citizen was doing nothing illegal and knows it. It's not so much what the citizen was actually doing, as it is what the police were told in the phone call.

The only way to know for sure whether the LEO had legitimate reasonable suspicion and authority for a detention (Terry Stop) and/or weapon seizure is to file a Freedom of Information Act (FOIA) request for the 911 call and radio traffic. Or get an attorney involved. But this can only happen after the stop.

Also, the police are under no obligation that I know of to tell me their reasonable suspicion. Even if one did, I would have to assume for my own legal safety that he was not telling me everything, or mis-stating it, or paraphrasing it.

So, the citizen can only know for sure whether the officer had legal authority for the detention AFTER the police encounter.

I give problem number two to show a legal barrier exists, not because something should be done about it during a police detention. Problem number two for the citizen who wants to protect or exercise his rights during a police encounter is a Virginia Supreme Court opinion expressly stating one may not use force to resist an unlawful detention. In Commonwealth vs Hill (2002) the court said, "Accordingly, we hold that a person in this Commonwealth does not have the right to resist an unlawful detention or 'pat down' search." The defendant's conviction of assault and battery on a police officer--for using force to resist an unlawful detention--was reinstated in this opinion.

Thus, a lawfully armed citizen who wants to protect or exercise his rights during a police encounter cannot know with certainty whether the LEO has legal authority to detain him, search him for a weapon, or seize his weapon. And even if he correctly knows it is not a lawful detention, he legally can do nothing physically to resist it.

I am convinced after much thought and research that it is best to comply during a police detention while verbally and politely refusing consent. This way, if it is found out by FOIA that the LEO in fact clearly did not have reasonable suspicion, he's actionable. By actionable, I mean a formal internal affairs complaint at a minimum. Also, it's a point of law that if I consent, I am waiving my 4th Amendment protections and thereby making legal a search or seizure that might have been unlawful had I refused consent.

 

[rhino]

Interesting.

At what point does something shift from "detention" to "arrest"?

And I know I've read somewhere that it is legal to use force to resist an unlawful arrest, but even if I remember correctly, I don't know how you could possible know it was an unlawful arrest until afterward (except in some extreme, only-seen-in-the-movies situation), or the difference between "detention" and "arrest."

This is just another example of how bad our legal system has gone astray, and this dates back to 1968!

I will reiterate my opinion: if a person has committed no crime, a police officer should not have any "authority" over them whatsoever. Clearly that's not the reality in which we live, but it should be that way.

 

[sloughfoot]

The shift from "detention" to "arrest" occurs when you are no longer free to leave. A word of advice though, NEVER EVER resist any arrest, even if it is unlawful in your opinion. The situation automatically changes the moment you become the "Bad guy".

I have made Terry stops, but always with plenty of PC and the innocent never had anything to fear from me.

 

[kludge]

sloughfoot,

Here's a question I would love for a real LEO to answer for me...

scenario: I am stopped on the street by an officer who wants to ask me a few questions...

I have not broken any laws that I am aware of and I get the impression I get from the questions that the officer is fishing (why he would waste his time is not part of the question at this point). I say "Officer, I'm in a bit of a hurry, am I free to go?

Then what happens?

 

[hoosiertriangle]

Rhino,

In my Criminal Law class this semester, our Prof. made it very clear that you cannot use force to resist an unlawful arrest. The remedy for an unlawful arrest is through the courts and due process. You can, however, use force to resist an unlawful use of force in an arrest. The distinction to me became gray very fast, but the point there was that damages through courts cannot fully compensate a person injured in an unlawful arrest and therefore you are permitted to protect yourself from unlawful force. I would look up the source of this thinking from the prof, if I had some time, but wanted to give some added input on the topic.

In practical reality, I'm not sure you'd get very far resisting the use of unlawful force. There are so many factors and fact specific details that would need to be weighed.

Just some additional thoughts on it,

 

[fpdshooter]

I'll throw in a few cents here. Arrest, as was pointed out, is not free to leave, but also must be in custody. For example, if you are stopped for speeding, you are not free to leave (if you do then the pursuit is on), however you are seated in your own car therefore you are not in custody. This is a classic detention.

Rhino - under IN case lae, even if the arrest is later determined to be bad, one does not have a legal right to resist, even a bad arrest.

kludge - if the officer has "stopped" you as a consensual encounter (read this as I walk up and say we then we start to talk about fishing, for example - we both stay to chat, that is a mutual consensual encounter) then you are free to walk away, however he may decide to up the ante a bit if he feels at the time of the incident that there is reasonable suspicion at the time, then you must comply.

It is a VERY grey area for all involved and cannot be divided into black and white. Everything is dependant upon the facts at the time of the incident. The amount of time the officer has been on the job must be taken into account, every observations, the area, the time of day, etc... So you can see that even something minor could drastically change how the same situation would be percieved.

For example, I see a young man walking through a neighborhood right now with a backpack wearing dark clothing...hey no big deal.

I see the same person, at the same spot, wearing and carrying the same things at 0300, then that person gets checked out every time.

Why the difference, my observations and experience that people walking in neighborhoods at 0300 wearing dark clothing and carrying backpacks are usually breaking into cars, houses, etc. Now the important part, I can go back and pull the arrest records to back up my observations, my experience, etc.

It can be very confusing.

 

[jeremy]

Protect and Serve? Who or what is being protected? And secondly who is the servant?

 

[fpdshooter]

If that was for me Jeremy, I'm not sure I follow.

The police are there to serve the greater good. That means the people are being protected, often from themselves, so are the laws set forth.

Just because the police are there to serve, doesn't mean they are your servant. We are there to serve all. If I stop you for OWI (drunk driving) does that mean that as your servant, I should let you go because you tell me to. Obviously not. I must serve the others out in the public, including my own family, by taking you off the street. It is the same if I get called to a person with a gun. I have to do what is right at the time in question, based off of the information I have at hand, at the time of the incident. The Supreme Court has ruled and reinforced that ruling that when judging a police officers action, you must do so with the information they had at the time of the incident, not with the crystal clear advantage of hindsight or any further information that has come forth since the incident.

I guess I don't understand what you are trying to say or are hinting at. Care to elaborate?

 

[Fenway]

Yes, please elaborate!

Protect and Serve? Who or what is being protected? And secondly who is the servant?

 

[jeremy]

What about Protecting and Serving the Constitution. Or are the members of the Military the only ones for whom that duty falls. The lines are getting very very blurry on what is considered right and wrong in todays society. The Bill of Rights is being destroyed daily, for what? For the security of the masses. Liberty and freedom are what is being stolen.

 

[CarmelHP]

For example, I see a young man walking through a neighborhood right now with a backpack wearing dark clothing...hey no big deal.

I see the same person, at the same spot, wearing and carrying the same things at 0300, then that person gets checked out every time.

And you do what to him?

 

[mospeada]

And you do what to him?

Depends on his race.

I keeed.

Seriously, I think the "Terry Stop" is pretty well spelled out and fishing for something to take offense at is lame.

 

[Fenway]

Let me guess. See if he runs when you pull up. Ask him where he is going. Ask him what he is doing at this hour of the night dressed in black with a backpack. Ask to see some ID maybe.

I would love to know an officer did this in my neighborhood.

And you do what to him?

 

[CarmelHP]

Let him answer, he's a big boy. I want to know what local police think are the parameters of a Terry.

 

[Fenway]

Who said he couldn't answer?

Let him answer, he's a big boy. I want to know what local police think are the parameters of a Terry.

 

[fpdshooter]

What about Protecting and Serving the Constitution. Or are the members of the Military the only ones for whom that duty falls. The lines are getting very very blurry on what is considered right and wrong in todays society. The Bill of Rights is being destroyed daily, for what? For the security of the masses. Liberty and freedom are what is being stolen.

Jeremy - I guess I still don't understand where you are coming from. The term Terry Stop comes from a US Supreme Court case of Terry v Ohio, where the US Supreme Court decided that if the officer has reasonable grounds based on the totality of the circumstances, then the officer can stop and detain you for invesigative purposes.

If the US Supreme Court says this can be done, then you may not like it, but that makes it good. As a police officer, I MUST obey case law, the constitution, and the Supreme Court - whether I agree or not.

For example - a guy driving his car flips you off in traffic, he can be cited ($169 fine) for Provacation. Basically he is trying to provoke you into doing something.

If the same driver does that to me, the Supreme Court has upheld that cops must have thick skin, no action can be taken. I don't like it but that's the way it is.

So in summary, I don't see where anyone stated about "trampling' on the your rights, freedom, or the Constitution. It is actually the other way around, we, the police, are bound by the restraints placed on us (both good and bad) by case law and the Supreme Court. If you are unhappy with that and think we have too much power, I sincerely apologize if you feel that way, but that is the way things are.

 

[CarmelHP]

Who said he couldn't answer?

I meant instead of others answering for him.

 

[fpdshooter]

Let him answer, he's a big boy. I want to know what local police think are the parameters of a Terry.

Hey CarmelHP, sorry it took me so long to get back, this big boy needed a nap!

Ok, please understand that everything is situational and VERY dependant on that situation. It's kind of like one of those "choose your adventure" books I used to read as a kid. If this happen you go here, if this happens then go here.

We'll start with the obvious, stop and ID the kid, ask him where they are going, where they have been. I am looking at his physical appearance (is he sweating heavy, are his shoes wet and grassy) see if those answers make sense.

If he says he's going home after playing guitar hero at a friends house, then call his parents to come pick him up (especially if he's a juvenile). If his ID puts him living at 32/Guilford and he can't come up with a real good reason for being there other that he was at a friends house but can't remember his name, we have problems.

Did we get any calls on him walking, or did I just come across him?

I think any reasonable person can see that there are too many variables to just spout off an answer to the question of "What next"

My short answer is check him out. Do I have reasonable suspicion that criminal activity is afoot? In one of the cases above yes I do. In the other, not really but I also have an obligation to the community and the parents/juvenile to make sure they get home safely. So in the other, assuming it is a juvenile (under 18) then they would be "detained" long enough for a parent to come get them and take responsibility for them. So even though no criminal activity is afoot, once again the Supreme Court has given us outlines when we may detain someone for a "community caretaker" function. This cleary fits that description.

I believe that yes, I do understand and practice good Terry stop techniques.

CarmelHP - if you are trolling for some Nazi like answer to get all huffy about, then you had better look elsewhere.

 

[fpdshooter]

cruft

I've got to go cut the grass, I'll be back later.

 

[CarmelHP]

I don't understand the defensiveness. I'm plumbing the depths of local law enforcement to gauge their understanding of Terry. Having to sometimes wear my judge hat, I'm fascinated at lay opinions of what caselaw allows or doesn't allow. So, say he's not a juvenile and refuses to answer questions or present ID, what then? I'm not trying to trap you here, but wonder what you think the Terry limits are.