Student arrested for refusing to be searched (Empty Holster)

[VMI77]

...he consented to a search when he knew he had contraband (the synthetic drugs, if legal, still was not allowed by rules).

From what I've heard this happens frequently: people who know they have illegal items or substances give consent to search. I've heard various lawyers claim that something like 90% of those accused of crimes basically convict themselves by giving consent to search and/or failing to keep their mouths shut. Generally, the police are very good at getting people to talk. Most of the time this probably does us all a favor by putting bad guys away, but sometimes people who aren't bad guys make life very hard for themselves.

[WildBill]

...he consented to a search when he knew he had contraband (the synthetic drugs, if legal, still was not allowed by rules).

From what I've heard this happens frequently: people who know they have illegal items or substances give consent to search. I've heard various lawyers claim that something like 90% of those accused of crimes basically convict themselves by giving consent to search and/or failing to keep their mouths shut. Generally, the police are very good at getting people to talk. Most of the time this probably does us all a favor by putting bad guys away, but sometimes people who aren't bad guys make life very hard for themselves.

Many people on the forum complain that their constitutional rights are being violated by firearms laws, but then ignore their other rights. You have rights. Use them.

[¿Qué?]

“(Officers) asked if they could search him for a weapon, and even offered to take him away from the rest of the crowd so he wouldn’t be embarrassed by that, but he refused,” Lane said. “They asked him several times if they could do that, and he continued to refuse,

Good for him!

If the search was reasonable, they wouldn't need him to consent to a search without a warrant or some other legitimate justification. Maybe some hired guns didn't like him exercising his Fourth Amendment rights, but he did the right thing in response to the fishing expedition.

[srothstein]

I am apparently a little late getting into this discussion, but it is also one of the few times I disagree with Excaliber. I think the student was correct in declining a consent search. I do not think the presence of an empty holster justifies a Terry frisk (our point of disagreement).

The Terry frisk requires a legal detention and suspicion of a crime being committed. In addition, the frisk requires an articulable reason to believe that this particular detention has some danger to the officer or others that is not present in other similar cases. I am not sure that an empty holster gives either the suspicion of a crime or the reason to believe there is a danger. Of course, this is a point that is very individual and a court may find that the empty holster is a reasonable suspicion.

The other point I have a problem with is based on Texas law, not Wyoming law. I am not sure on how Wyoming law works, but under our law, the student committed criminal trespass when he refused to leave after being told to do so. Again, I am applying our law instead of Wyoming's, but interfering or resisting police would clearly be the wrong charge. Based on our law, the officers really messed up there, as many have pointed out. But it may be the right charge under their law, so I can't really say.

The clear lesson from this incident is the one others have posted. Never try the case on the street. You will not win by arguing with the police, even if you are right. Unfortunately, this young man will get to find out in court if he was right or not but after spending some time in jail.

[gigag04]

The Terry frisk requires a legal detention and suspicion of a crime being committed.

I agree, especially when you said:

the student committed criminal trespass when he refused to leave after being told to do so

In my mind, refusing to leave is a valid detention, and an arrestable offense. Like you, I am limited by my knowledge of TX laws in this regard. The hiccup here is the timing of the CT vs when the detention started. If he was causing a disturbance, then a valid detention could be shown under the general preservation of the peace function of LE.

I am not sure that an empty holster gives either the suspicion of a crime or the reason to believe there is a danger. Of course, this is a point that is very individual and a court may find that the empty holster is a reasonable suspicion.

I see your point, but I respectfully disagree. I think an officer would have an easy time articulating reason to believe a weapon was present. "...Sir, in my training and experience I recognize that a holster worn on the person is often accompanied by a handgun. I observed that a handgun was not present in the holster, and believed that the defendant may have been concealing it elsewhere on his person. I asked the defendant whether he possessed a handgun, and he refused to answer. I asked the defendant for consent to search his person. The defendant refused. Based on my belief that a holster (paraphernalia for a weapon if you will...) is often accompanied by a handgun, I determined that the reasonable suspicion for a Terry frisk was met. The defendant prevented us from conducting a search, and further refused to leave the premises when commanded to do so by a peace officer....ETC

How many people on a jury are actively following all of the open holster demonstrations? Even with me knowing about the demonstrations, if I'm talking to someone, and I see a holster, you bet I'm asking/checking that person for weapons.

interfering or resisting police would clearly be the wrong charge. Based on our law, the officers really messed up there, as many have pointed out. But it may be the right charge under their law, so I can't really say.

I'm not so sure. If the courts hold that Terry frisk was legal (which I think they should) then the resisting charge should hold up. Again, I've seen crazy cases go both ways with the "right" jury.

Unfortunately, this young man will get to find out in court if he was right or not but after spending some time in jail.

Agreed - and either way, the problem was solved for the night, and nobody was shot.

[flintknapper]

Gigag wrote:

I see your point, but I respectfully disagree. I think an officer would have an easy time articulating reason to believe a weapon was present. "...

Really?

Sir, in my training and experience I recognize that a holster worn on the person is often accompanied by a handgun.

In your training and experience…did you also happen to notice that the handgun will be IN the holster (unless in the persons hand)? It is a point worth noting, no?

I observed that a handgun was not present in the holster, and believed that the defendant may have been concealing it elsewhere on his person.

Why? Did any of the officers SEE a bulge under clothing, did the young man make any furtive moves, do we have ANYTHING else to suggest that he might have a handgun on him? What would be the purpose of someone concealing a handgun while conspicuously wearing a holster?

I asked the defendant whether he possessed a handgun, and he refused to answer.

No one (according to the account) asked him if he possessed a handgun, but let’s run with that anyway.

Suppose you did ask…and the person answered NO. Are you good with that? I think NOT…because the person could be lying and you’ve already demonstrated that you believe HOLSTER= gun, right?

I am hoping that you don’t also think the inverse is true: NO HOLSTER= no gun. (I know you don’t).
Quite a few thugs carry their handgun “tucked in front” of their pants.

I’m guessing pretty much everyone there had on a pair of pants. Wouldn’t you be justified in “checking” them too?

Or would it better to have at least SOMETHING else to go on?

I asked the defendant for consent to search his person. The defendant refused.

Of course he refused, he wasn’t doing anything wrong and if you had a clear reason to check him…you wouldn’t need his consent anyway.

Based on my belief that a holster (paraphernalia for a weapon if you will...) is often accompanied by a handgun, I determined that the reasonable suspicion for a Terry frisk was met.

It’s a good thing you are not a surgeon then. For instance….“Brain Tumors” are always found in the “Brain” (when they exist), that doesn’t mean you need to do exploratory surgery on every person just because they have the “paraphernalia”.

The defendant prevented us from conducting a search, and further refused to leave the premises when commanded to do so by a peace officer....ETC

Defendant did NOT “prevent” LEO from doing anything. He refused (denied permission) for a seach, big difference. As to the legality of LEO commanding a person to leave the premises, they may have been within their rights in this case, I can’t say.

if I'm talking to someone, and I see a holster, you bet I'm asking/checking that person for weapons.

I fear this is true.

"progressive policing"?

[gigag04]

I think you miss understand probable cause and reasonable suspicion. I did not say holster = gun. I said often times, in my experience holster CAN mean gun. As I read the account i feel i could articulate it and convince a jury.

[flintknapper]

I think you miss understand probable cause and reasonable suspicion. I did not say holster = gun. I said often times, in my experience holster CAN mean gun. As I read the account i feel i could articulate it and convince a jury.

Could be.

Some folks can sell Ice Cubes to Eskimos and Locusts to Farmers.

But, it would never fly if I were on that jury.

[Oldgringo]

Based solely on my limited and dated experience (see previous post) with the law, LEO's on the scene are not there to debate the issue/question. As someone opined earlier, take it up with the juge and the LEOs' superiors at a later date. ITMT, it's di di mau.

YMMV.

(Why am I awake at this unGodly hour?)

[gigag04]

I had a chance to chew on this some more, and it still seems crazy that one would not instantly think gun when they see a holster being worn. It's easy to armchair quartback and say of course he didn't have a gun. But when it's your butt on the line, and your families' well being at stake, you will think differently I assure you. Especially with the number of slain officers this year.

[b322da]

I think you miss understand probable cause and reasonable suspicion. I did not say holster = gun. I said often times, in my experience holster CAN mean gun. As I read the account i feel i could articulate it and convince a jury.

After reading the source article, Aggie, I suspect that the media, as usual, and perhaps even the LEO, also misunderstood the difference between probable cause and reasonable suspicion -- as you say so correctly, the difference between a search and a Terry frisk.

I think you miss understand probable cause and reasonable suspicion. I did not say holster = gun. I said often times, in my experience holster CAN mean gun. As I read the account i feel i could articulate it and convince a jury.

Could be.
Some folks can sell Ice Cubes to Eskimos and Locusts to Farmers.
But, it would never fly if I were on that jury.

My lifetime dedication to, and service to, the Rule of Law, just cannot let this statement be ignored.

What would you do with the other eleven on that jury? Pull your illegal-in-the-courtroom gun on them to force them to vote for acquittal as you ignore your duty as a juror to follow the instructions of the judge? Or force a mistrial and a new trial with you off the jury?

Do you think you would ever be on the jury in such a case after you tell the DA, defense counsel, and judge, at voir dire, that you have already made up your mind as to the guilt or innocence of the defendant simply because of what you have learned from the media? Or would you continue to rant from a jail cell after you lie and tell them that you can be an impartial juror, and your post here is made known to the judge?

When you put it on the internet you may assume that the whole world knows it.

Elmo

[steveincowtown]

Maybe an LEO can field this, but U of W is a Public University, and the student was arrested in front of one of the buildings. Am I correct or incorrect to assume that the open grounds of a public insitutution are public property? Can an officer really ask someone to leave a public area and then site them with trespass if they don't?

[b322da]

Maybe an LEO can field this, but U of W is a Public University, and the student was arrested in front of one of the buildings. Am I correct or incorrect to assume that the open grounds of a public insitutution are public property? Can an officer really ask someone to leave a public area and then site them with trespass if they don't?

I do not see any report of the student being "sited with trespass," but I may well be behind the power curve.

"University of Wyoming student K. Michael Richards was arrested around 6:20 p.m. Thursday in front of the Arts and Sciences Auditorium by the UW Police Department and was charged with police resisting, also know (sic) as interference, Chief Troy Lane said."

Once again, as pointed out by gigag04, who I understand is a person who could be faced with such a situation in the real world, if the stop is adequately articulated and shown by the LEO to have been to make a lawful Terry frisk, the actual charge, as inartfully stated as it is, would, in my opinion, be appropriate. His guilt or innocence of the charge is up to someone else, perhaps several someone elses.

Elmo

[steveincowtown]

Maybe an LEO can field this, but U of W is a Public University, and the student was arrested in front of one of the buildings. Am I correct or incorrect to assume that the open grounds of a public insitutution are public property? Can an officer really ask someone to leave a public area and then site them with trespass if they don't?

I do not see any report of the student being "sited with trespass," but I may well be behind the power curve.

"University of Wyoming student K. Michael Richards was arrested around 6:20 p.m. Thursday in front of the Arts and Sciences Auditorium by the UW Police Department and was charged with police resisting, also know (sic) as interference, Chief Troy Lane said."

Once again, as pointed out by gigag04, who I understand is a person who could be faced with such a situation in the real world, if the stop is adequately articulated and shown by the LEO to have been to make a lawful Terry frisk, the actual charge, as inartfully stated as it is, would, in my opinion, be appropriate. His guilt or innocence of the charge is up to someone else, perhaps several someone elses.

Elmo

Elmo, I agree. I was taking exception to what gigag said about not leaving the area. The other thing I am not sure of is that if a holster really=gun. If this is true where do we draw the line? For most of us on this board here are a bunch of other things that equal a gun:

- vest in the summer
- fanny pack with a full zipper
- goofy loose fitting pattern shirt
- exposed clips underneath belt (tuckable holster)
- etc...

I could easily aritucalte why any of the above would make me think a weapon may be present.

[MasterOfNone]

The other thing I am not sure of is that if a holster really=gun. If this is true where do we draw the line? For most of us on this board here are a bunch of other things that equal a gun:

- vest in the summer
- fanny pack with a full zipper
- goofy loose fitting pattern shirt
- exposed clips underneath belt (tuckable holster)
- etc...

I could easily aritucalte why any of the above would make me think a weapon may be present.

The difference between a holster and these items is that a holster is purpose-made for a gun (except for the liquor holsters that shot girls were in some country bars). To me, its the same as if the kid was carrying a gun case.