RAS, 4th amendment

[DaveM55]

With a major topic of RAS being discussed lately I would like to throw a case out there for anyone interested to read and comment on.

Sorry I couldn't find any links for the two bottom cases but the top one is interesting. Appears to me the restrictions for RAS are a little tighter because of this courts opinion.

State of Washington vs SETTERSTROM
Docket Number: 79690-4
Title of Case: State v. Setterstrom
File Date: 05/22/2008
Oral Argument Date: 01/22/2008
http://www.courts.wa.gov/opinions/in...name=796904MAJ

These are quotes from the above opinion.

Without probable cause and a warrant, an officer is limited in what he can do. He cannot arrest a suspect; he cannot conduct a broad search.

State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).

An officer may, though, frisk a person for weapons, but only if (1) he justifiably stopped the person before the frisk, (2) he has a reasonable concern of danger, and (3) the frisk's scope is limited to finding weapons.

State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993)

If anyone has a link to the two cases above, please share.

[Pa. Patriot]

Ohh, good thread, Dave.

Gotta run, but I'll be back later

[DaveM55]

Pa Patriot said I did good. That's gotta be a sign of the apocolypse. Everybody run. LOL LOL

[LittleRedToyota]

this jives perfectly with the actual text of terry and my understanding of how the higher level courts generally interpret it.

the LT did not seem to have RAS that the defendant was armed (and his RAS that the defendant was presently dangerous was shaky at best)...thus, a terry search is not allowed.

also, even if the terry search had been allowed, he may not have been justified in completely emptying the guy's pockets since his articulation of why he suspected any of the objects in the pocket were weapons was shaky, and, further, even if he did sufficiently articulated suspicion of a weapon, terry would (at least in theory) only allow for the removal of the objects which were supected to be weapons unless the officer could articulate RAS that some other object he felt was contraband.

(this prolly would not be too hard to do for a narcotics officer, though...something like "as i was emptying his pockets of the objects i suspected were weapons, i felt a baggie and, combined with the suspect's appearance and behavior, my experience as a narcotics officer led me to believe that a baggie in this person's pocket likely contained drugs"...but it seems the LT did not articulate any such thing).

terry is often misinterpretted and misapplied by both officers and lower courts, in my non-lawyer opinion. it requires three separate things: 1. RAS of a crime (for the detention in the first place); 2. RAS that the person is armed; and 3. RAS that the person is presently dangerous.

in this case, it seems that neither 2 nor 3 were actually present.

i don't think this case raises the standard at all. it just correctly applies the already existing (but often misunderstood) standard.

just my non-lawyer take on it.

btw, kudos to the officer involved, imho. i think he could have easily "embellished" his RAS a bit and prolly gotten everything to stick, but it seems he did not do that. he placed truth and honor above getting a conviction. he has my respect. (or maybe his understanding of terry was just so poor that he thought it would stick anyway, but i'll give him the benefit of the doubt that he was acting honorably.)

[pex]

Today's officers take and run with Terry. Terry is designed to make officers AWARE of weapons, not provide them with a rule allowing wholesale confiscation, for whatever period they deem temporary.

Knowing that the weapons are there allow the officer to develop a particular schema through which to relate a detainee's actions.

[archon]

Although I believe, from those qoutes, that the cases are probably a very good restatement of Terry and its progeny, be careful with these cases because they are out of Washington state and are not binding precedent in PA.

[DaveM55]

Although I believe, from those qoutes, that the cases are probably a very good restatement of Terry and its progeny, be careful with these cases because they are out of Washington state and are not binding precedent in PA.

Thanks, that was a question I had about this case.

[archon]

This is a pretty good restatement of criteria for a Terry search in the state of PA:

If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect's outer garments for weapons." Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659 (Pa. 1999). In order to establish reasonable suspicion, the police officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous. See Commonwealth v. Gray, 2006 PA Super 71, 896 A.2d 601, 606 (Pa. Super. 2006). When assessing the validity of a Terry stop, we examine the totality of the circumstances, see id., giving due consideration to the reasonable inferences that the officer can draw from the facts in light of his experience, while disregarding any unparticularized suspicion or hunch. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1158 (Pa. 2000).

Commonwealth v. Wilson, 2007 PA Super 175, P8 (Pa. Super. Ct. 2007)

Here is a pretty general restatement of the law involving police encounters and the 4th Amendment.

Traditionally, this Court has recognized three categories of encounters between citizens and the police. These categories include (1) a mere encounter, (2) an investigative detention, and (3) custodial detentions. The first of these, a "mere encounter" (or request for information), which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause

<snip>

To determine whether a mere encounter rises to the level of an investigatory detention, we must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer's request or otherwise terminate the encounter. Thus, the focal point of our inquiry must be whether, considering the circumstances surrounding the incident, a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant's shoes.

<snip>

Notably, HN6circumstances to consider include but are not limited to, the following: the number [**11] of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. Commonwealth v. Beasley, 2000 PA Super 315, 761 A.2d 621, 624-625 (Pa.Super. 2000).

All quotes are from Commonwealth v. Collins, 2008 PA Super 124, P11 (Pa. Super. Ct. 2008).

[Bruce]

If, during the course of a valid investigatory stop,

Which would indicate RAS already existed before the statement even begins.

If there exists no reasonable suspicion of a crime - then there could not be a "valid investigatory stop".

an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous,

So the officer needs RAS for the stop, then more RAS - specifically the belief that the (criminal) "suspect" is "dangerous".

The way this sounds, I would believe it was written from some place where "arms" (such as firearms) are illegal - meaning: only a "criminal" would be armed. Otherwise, why not simply state "dangerous" and leave out "armed" (which would make more sense to me).

Or, perhaps, the author simply 'believes' that firearms should signify something illegal? Either way, the way it reads, it sounds as though they are combining "firearms" and "dangerous criminal" together. If that were really the case then all cops (and all of us who carry) would actually be "dangerous criminals" by default.

In a place where the carriage of firearms is perfectly legal, like Pennsylvania, it is reasonable to assume that *everyone* is already "armed". The honest, law-abiding citizens are not prevented from carrying firearms and the criminals do not care that they are prohibited - so, it is perfectly reasonable to assume that everyone a cop might meet (in Pa.) is armed.

Therefore, in a place like Pennsylvania, it would seem more logical to me to simply remove a criminal's (excuse me - "reasonably suspected" criminal's) weaponry once there exists the valid RAS that they are, if fact, "dangerous".

the officer may conduct a pat-down of the suspect's outer garments for weapons." Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659 (Pa. 1999).

So, to recap: the officer must have reasonable suspicion of the commission of a crime, then even more reasonable suspicion that the "suspect" of the "crime" is in fact "dangerous".

And the officer must be able to prove the validity of these "reasonable suspicions".

All sounds pretty "reasonable" to me.
.

[headcase]

All of this is great, except that if an officer sees a firearm on you, whether or not you informed them of it's presence, and takes offense to it, the officer will order you to assume the position, disarm you, and then decide if you are dangerous. When you are deemed not to be dangerous and your firearm comes back clean, they will give it back, tell you they disarmed you for their safety, and there won't be a thing the average Joe can do about it except be pissed off and jaded. There has been case after case after case, spelling out that there needs to be a RAS that the firearm holder is dangerous, before the police can search you or remove your firearm. The reality is that these issues only make it before a court when other more serious infractions have occurred, so RAS only matters if they proceed down the road to arresting you. They can, and do, throw RAS out the window on a daily basis in any stop where a firearm is present, your rights and court rulings be damned. Until some lawyer starts advertising on TV, asking, "Have you been detained and had your firearm removed for 'officer safety', only to have it returned after being run through an illegal database? If so, call 1 800 HADNORAS, and get the compensation you deserve!", it will continue to happen on a daily basis and no one will do a damn thing about it.