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Pedestrians, frisking and you. (DePeiza v. Comm.)
- Thread starter clinotus
- Start date
Actually, it had nothing to do with "probable cause," which is the standard for making a warrantless arrest. What it had to do with was making a so-called Terry stop, which is based on "reasonable suspicion" that a person is engaged in illegal behavior. A Terry stop authorizes only conversation, not seizure, and if augmented by a reasonable fear for one's safety, an external pat down.
This case was based on a fairly discrete set of facts that are unlikely to apply to any NES folks.
This case was based on a fairly discrete set of facts that are unlikely to apply to any NES folks.
I would think that those of us who choose to legally carry would do so in a discreet enough manner as to not attract the attention of LE. That said, if stopped for a pat-down by law enforcement, a quick "If I happen to be armed, there is a LTC in my wallet in my (location) pocket that I would be happy to provide for your perusal" would probably be the best way to maintain said cover.
I am not partial to discussing personal security measures with much of the general public, but in light of what MAY happen if you don't say that you may be legally carrying...and stopped by a now nervous person trying to enforce the law for cause (reasonable/ probable or not)...is it worth the hassle? Up to you....
I am not partial to discussing personal security measures with much of the general public, but in light of what MAY happen if you don't say that you may be legally carrying...and stopped by a now nervous person trying to enforce the law for cause (reasonable/ probable or not)...is it worth the hassle? Up to you....
Its the "odd walking patterns" (stiff arm on the weapon side, frequent weapons checks (patting, touching, etc) usually around the waistband..
And being in a high crime area.
I, for one, try to stay out of those as much as possible![[thinking]](/xen/styles/default/xenforo/smilies.vb/010.gif "Thinking [thinking]")
And being in a high crime area.
I, for one, try to stay out of those as much as possible
Boston Globe
Pissed off and bored cops raid local gun range based on probable cause.
With backing from the MA SJC,3 police officers that were denied a detail took their frustrations out in a very legal way.
Believing that illegal weapons were being used illegally,local cops confiscated over 300 firearms and detained 22 people while serial numbers were being recorded and verified.
The police union was ecstatic:
"This confiscation has taken over 300 possibly illegal guns off the streets."
While observing from a concealed position,one officer noticed that one of the possibly illegal gun owner was acting strangely.He noticed a slight limp as one of the possibly illegal gun owners was walking down range.
"My training has prepared me well for this day" he said."This state will never be safe until all guns are confiscated".
Also confiscated was over 27,000 rounds of live ammunition that police believe was to be used in several drive by shootings.
Complete story at 11.
Pissed off and bored cops raid local gun range based on probable cause.
With backing from the MA SJC,3 police officers that were denied a detail took their frustrations out in a very legal way.
Believing that illegal weapons were being used illegally,local cops confiscated over 300 firearms and detained 22 people while serial numbers were being recorded and verified.
The police union was ecstatic:
"This confiscation has taken over 300 possibly illegal guns off the streets."
While observing from a concealed position,one officer noticed that one of the possibly illegal gun owner was acting strangely.He noticed a slight limp as one of the possibly illegal gun owners was walking down range.
"My training has prepared me well for this day" he said."This state will never be safe until all guns are confiscated".
Also confiscated was over 27,000 rounds of live ammunition that police believe was to be used in several drive by shootings.
Complete story at 11.
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Twigg
NES Member
Just how "odd" need one walk...
(O/T) and now for something completely different...
Clickety on the pickety for some levity...
Some days I just cannot help myself.
We now return you to the thread.![[smile]](/xen/styles/default/xenforo/smilies.vb/001.gif "Smile [smile]")
(O/T) and now for something completely different...
Clickety on the pickety for some levity...
Some days I just cannot help myself.
We now return you to the thread.
Do they speak German when they stop you as well?
This is total bull shit.
This opens the door to them stopping ANYONE at ANYTIME.
because, once again, when it goes to court... it is your word against the cops.
Now, I know (or at least hope) that no one here would ever carry illegally, however, why should we be subject to that hassel?
Not for nothing... but I live in a high crime city... and yes... unfortunately there are times I need to travel in the less then desirable areas.
Now, in those areas, my alertness goes way up... so I may be "looking around" and "seem out of place"
that there would be all these asshats need to search me based on this.
This is total bull shit.
This opens the door to them stopping ANYONE at ANYTIME.
because, once again, when it goes to court... it is your word against the cops.
Now, I know (or at least hope) that no one here would ever carry illegally, however, why should we be subject to that hassel?
Not for nothing... but I live in a high crime city... and yes... unfortunately there are times I need to travel in the less then desirable areas.
Now, in those areas, my alertness goes way up... so I may be "looking around" and "seem out of place"
that there would be all these asshats need to search me based on this.
Twigg
NES Member
clinotus said:
Not an over reaction at all, for -some- locations. The biggest impact will be in more urban areas, notably the more restrictive locations in this state.
Jaxon said:
All the more reason for those who can carry but for various reasons don't, to do so more frequently. The more frequently one goes out armed the more one becomes accustomed to the presence of a sidearm. At least this has been my experience.
matt1956 said:
Yep. Just another small step towards total control brought to you by the .Gov.
![[hmmm]](/xen/styles/default/xenforo/smilies.vb/009.gif "Hmm [hmmm]")
There is nothing earth shattering about this case. This decision doesn’t change anything in regards to the 4th Amendment. This case does not give leeway to the police to stop and frisk anyone they want whenever they want.
The initial contact that the police had with DePeiza was not a stop. The officer’s “attention” was drawn to him because of the time of day, location and his “odd way of walking”. The police called out and talked to him. This is known as a consensual encounter. This type of encounter is NOT a stop or a seizure. The police can talk to anyone just as you can approach someone and talk to them. DePeiza screwed up. He could have refused to speak to them and continued on his way. The results of this case would have been very different had he refused. Instead, he opted to stop and talk to them.
As DePeiza spoke to the officers, he kept one side of his body away from the officers. He also showed signs of nervousness. When DePeiza offered and produced his identification, the officers noticed a bulge in his coat pocket. The pocket that was being shielded from the officers. It was at this time that the encounter moved to a stop or seizure, known as a Terry Stop as RKG has already pointed out. The officers then conducted a pat down frisk for their safety based on the facts outlined above.
I have no doubt that even if the officers did not mention DePeiza’s “odd way of walking” the conviction would still be affirmed.
The initial contact that the police had with DePeiza was not a stop. The officer’s “attention” was drawn to him because of the time of day, location and his “odd way of walking”. The police called out and talked to him. This is known as a consensual encounter. This type of encounter is NOT a stop or a seizure. The police can talk to anyone just as you can approach someone and talk to them. DePeiza screwed up. He could have refused to speak to them and continued on his way. The results of this case would have been very different had he refused. Instead, he opted to stop and talk to them.
As DePeiza spoke to the officers, he kept one side of his body away from the officers. He also showed signs of nervousness. When DePeiza offered and produced his identification, the officers noticed a bulge in his coat pocket. The pocket that was being shielded from the officers. It was at this time that the encounter moved to a stop or seizure, known as a Terry Stop as RKG has already pointed out. The officers then conducted a pat down frisk for their safety based on the facts outlined above.
I have no doubt that even if the officers did not mention DePeiza’s “odd way of walking” the conviction would still be affirmed.
tuna
NES Member
My question is "what is the result when found to be carrying legally?"
I still consider myself new to CCW, and I'm getting better and not telegraphing, but still notice I make sure my firearm is concealed (make sure my shirt isn't riding up, feeling the area with my arm instead of blatantly patting) but still feel self conscious because I don't want to be accused of brandishing. So now, if an LEO sees me pulling on my shirt after a couple times of reaching for groceries, he can frisk me and find...a legally carried concealed firearm? Now what? "Sorry for inconviencing you, go about your business - these aren't the droids I was looking for, move along"?
Maybe we should elect judges, so they'll be accountable at election time and will follow the law and actually impose sentences on those who break the law.
HAHAHA - That wasn't supposed to be a joke, but it is funny, I guess the real joke is on us.
I still consider myself new to CCW, and I'm getting better and not telegraphing, but still notice I make sure my firearm is concealed (make sure my shirt isn't riding up, feeling the area with my arm instead of blatantly patting) but still feel self conscious because I don't want to be accused of brandishing. So now, if an LEO sees me pulling on my shirt after a couple times of reaching for groceries, he can frisk me and find...a legally carried concealed firearm? Now what? "Sorry for inconviencing you, go about your business - these aren't the droids I was looking for, move along"?
Maybe we should elect judges, so they'll be accountable at election time and will follow the law and actually impose sentences on those who break the law.
HAHAHA - That wasn't supposed to be a joke, but it is funny, I guess the real joke is on us.
I doubt that it was very consensual, Jon. You know what would have happened if the cop has said, 'come over here' and the guy kept walking. He'd have been nailed one way or the other.
It would have been a much different case had he walked away.
Are you saying that the police should not be allowed to speak to anyone?
A consensual encounter can be ended by either party at any time.
Shame on DePeiza for being such a stupid criminal.
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OK, I'll bite. What would the result have been if he decided to walk away and not speak to the officers? Doesn't this constitute probable cause or suspicious activity?
I say frisk them all...confiscate the guns from the people who don't have licenses and if they walk so what. The gun is off the streets.
What are they going to do....sue to get it back?
case dismissed...go away...we'll take care of the gun for you.
What are they going to do....sue to get it back?
case dismissed...go away...we'll take care of the gun for you.
![[troll]](/xen/styles/default/xenforo/smilies.vb/016.gif "Troll [troll]")
The encounter would have ended. At the time of the first encounter there was no probable cause or reasonable suspicion. Walking away and refusing to speak to them still does not rise to a reasonable suspicion or probable cause.
To truly test the "odd way of walking" theory that everyone is keying on, DePeiza had to walk away from the encounter and then see what had transpired.
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![[laugh2]](/xen/styles/default/xenforo/smilies.vb/014.gif "Laugh at above [laugh2]")
Next time a cop wants to talk to me,I'll just walk away and everything will be cool right ? The cop won't take it as disrespecting his authority and find probably cause to detain me and do a phishing expedition ?
I never said that but try it and see what happens. You may make some money. Ask him "Am I free to leave?" If he says no, ask for a lawyer. If you haven't done anything wrong and he has no articulable facts to hold you there, you win.
We'll never know what would have happened if DePeiza walked away. The fact remains that he didn't and he lost.
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As long as you havent broken any laws yep.
Let me ask this.
There have been night time house or car breaks in your neighborhood over the last few months. Officers patrolling one night see someone walking through at 2 AM. Should the officers just drive by or stop and engage the person?
There have been night time house or car breaks in your neighborhood over the last few months. Officers patrolling one night see someone walking through at 2 AM. Should the officers just drive by or stop and engage the person?
Garys
NES Member
As Jon says, this isn't particularly ground breaking. The opinion cites several MA and federal court decisions that have defined what a threshold inquiry is, when a Terry Stop may be conducted, what is reasonable suspicion versus probable cause.
If a police officer stops you to engage you in conversation, you have the right to walk away. You don't have to talk, you don't have to produce ID, you don't have to do anything. At that point the officer has a decision to make, you don't.
To answer Coyote33's question, MV stops are totally different. In those cases you do have to show ID (a license).
Gary
If a police officer stops you to engage you in conversation, you have the right to walk away. You don't have to talk, you don't have to produce ID, you don't have to do anything. At that point the officer has a decision to make, you don't.
To answer Coyote33's question, MV stops are totally different. In those cases you do have to show ID (a license).
Gary
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