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gigag04 wrote:

srothstein wrote: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

Arrest many people with an empty holster and a gun concealed elsewhere on there person, do you?

Would you consider a gun t-shirt or 5.11 pants reasonable suspicion for a search too?

Sorry I've been away from the discussion for a bit. My computer did not want to boot properly for a couple of days.

I understand officer safety and all that, but the officers in question here are the one's that initiated the entire event. I think we can agree that news articles often get many facts wrong and many times leave facts completely out of a story. I have not gone back and re-read the story, but from memory the officers either told him he could leave or asked him to leave. This is very different from being commanded to leave. It doesn't say he was doing anything other than being there with an empty holster, so that's all we have to go on. That doesn't seem like enough to me. It still sounds like they got upset that he would defy their omnipotence.

Barbi Q wrote:Long hair = OK to search for drugs

Short hair = OK to search for guns

The 4th Amendment is dead.

Well summarized BQ.

The "In my training and experience" statement could encompass a lot.

Personally, I believe any thing can be fit in that box.

And I do not like it.

I have no problem with strong opinions but this "contest" seems to be getting some shoes wet.

jmra wrote:I have no problem with strong opinions but this "contest" seems to be getting some shoes wet.

Bwahahaha. Another great expression.

...gigag04's right on with his logic...I think any straight judge'd buy it...I've searched many a car because an empty holster or some loose bullets were there...if you step in it in the yard, prolly a dog nearby...

I think the whole point you guys are missing is IT WAS AN EMPTY HOLSTER PROTEST. I would tend to agree that in general an empty holster would give you reasonable suspicion to search. However, when you have multiple people who are there to protest with empty holsters, I think you have a 99.99% chance they are NOT gonna try and carry a weapon somewhere else on them and risk jeopardizing their education and ruin the protest for the others.

...having read the OP, I'm not missing anything...but not being there, I can't speak as to why he was singled out...could be that his actions made them want to be sure he was unarmed...still a reasonable search in my opinion...
...he wasn't arrested for refusing the search...but for refusing to leave...probably a valid arrest...and that's not hinging on the holster...I'd love to read that police report...a lot we're not getting here...SOMETHING made them "pick on" him...

Keith B wrote:I think the whole point you guys are missing is IT WAS AN EMPTY HOLSTER PROTEST.

It would be like stopping someone on Halloween because they are wearing a cape.

speedsix wrote:...gigag04's right on with his logic...I think any straight judge'd buy it...I've searched many a car because an empty holster or some loose bullets were there...if you step in it in the yard, prolly a dog nearby...

"One size fits all" law enforcement?

Shameful IMO.

speedsix wrote:...having read the OP, I'm not missing anything...but not being there, I can't speak as to why he was singled out...could be that his actions made them want to be sure he was unarmed...still a reasonable search in my opinion...
...he wasn't arrested for refusing the search...but for refusing to leave...probably a valid arrest...and that's not hinging on the holster...I'd love to read that police report...a lot we're not getting here...SOMETHING made them "pick on" him...

"SOMETHING made them "pick on" him"
You inadvertently nullified your argument for a valid arrest if he was the only protester ordered to leave. He was indeed picked out for doing something completely legal. I don't buy all the arguments for any search that is not justified. We've been chipping away at our liberties to the point even LEO's feel justifed in defying the 4th amendment. We have surrendered to new speak. A frisk is not a search. How absurd. That's like saying a grope is not a sexual assualt. I am not blaming them, we've been sliding down this slope a long time. At every level government has taken our liberty in the name of some cause for the good of all. Airport security measures come to mind as one of the most extreme, yet we comply and it will become the norm and when more extreme measures are demanded we'll complain and then after a while "normal" is at a new level. JMHO

puma guy wrote:We've been chipping away at our liberties to the point even LEO's feel justifed in defying the 4th amendment. We have surrendered to new speak. A frisk is not a search.

Unfortunately, this is not "new speak". The Terry stop has been around since 1968. I think that the biggest issue is with the courts, and not just at the appellate level. IMO, the court [judge] will give the much more latitude to the prosecutors and LEOs. Most people would probably agree than an LEO is more likely to give more honest testimony than a suspect or criminal and that the prosecution would only present truthful evidence. For the most part this probably happens. Unfortunately, I think that leads to the conclusion that all evidence and testimony presented by the prosecution is "the truth, the whole truth and nothing, but the truth." We all know that this isn't the case, but seldom will a judge question such testimony or evidence. Appellant courts rarely will question or overturn cases based on matters of "fact". These practices only seem to bother people when the defendant is innocent.

WildBill wrote:

puma guy wrote:We've been chipping away at our liberties to the point even LEO's feel justifed in defying the 4th amendment. We have surrendered to new speak. A frisk is not a search.

Unfortunately, this is not "new speak". The Terry stop has been around since 1968. I think that the biggest issue is with the courts, and not just at the appellate level. IMO, the court [judge] will give the much more latitude to the prosecutors and LEOs. Most people would probably agree than an LEO is more likely to give more honest testimony than a suspect or criminal. Unfortunately, I think that leads to the conclusion that all testimony presented by the prosecution is "the truth, the whole truth and nothing, but the truth." We all know that this isn't the case, but seldom will a judge question such evidence.

WB
Thanks for the info re: Terry stops. I wasn't aware of them or when they appeared. I think we climbed to ladder to the slippery slide even before 1968. I was going to stay out of this discussion, but I just see so many instances where we've allowed the erosion of our liberties. It won't stop until either we've lost them or someone takes issue and challenges the powers that be. Bill Clemmons took away the soverign rights of Texans to sue the government and Texas is worse off for it. Instead of government protecting property it is now free to damage, destroy and take it outright with no recourse. The heros that fought and died for Texas' Independence would be taking up arms. Sorry I guess I've strayed from the OP. I do hope the gentleman successfully challenges his arrest.

puma guy wrote:I do hope the gentleman successfully challenges his arrest.

I hope that as well.

Wow...so dramatic. Not that many will believe me, but there are quite a few checks and balances on LEOs.