There was a court decision in Delaware last week that may illuminate the limits of personal searches of bikers by the police.
These searches, in which police contrive an infraction in order to search you, are called Terry Stops. The name comes from a 1968 Supreme Court ruling in Terry v. Ohio in which the court held that police may “briefly” detain a person they suspect of illegal activity and may do a cursory “pat-down” of that person if they have a “reasonable, articulable suspicion” that person is armed.
In the original case, a plain clothes detective on a Cleveland street rousted three men he suspected of being burglars, patted them down and found two guns. One of the suspects, John W. Terry, later wondered about his Fourth Amendment freedom from unreasonable searches and seizures. Five years after the stop the Supreme Court ruled that the detective had a reasonable obligation as a peace officer to ask the men what they were doing and that he acted with a reasonable fear for his own safety when he searched the three for guns.
The same legal theory was later applied to all traffic stops. Every traffic stop is a reasonable detention and once you are legally detained a cop can search you for weapons if he can later state why he reasonably thought you posed a threat to his safety.
There is nothing you can do to prevent a search. But if the policeman cannot articulate why he reasonably thought he was in danger anything he finds during his search is considered “fruit of the poisoned tree” and cannot be used as evidence against you. The problem with Terry Stops is that there is no general agreement about what is “reasonable” and that is what makes Delaware v. Abel interesting.
While patrolling Interstate 95 on June 4, 2011 Delaware State Trooper John Lloyd observed two Hells Angels on motorcycles going about 80 in a 55-miles-per-hour zone. Trooper Lloyd, coincidently, is a veteran member of the Delaware State Police intelligence unit. Lloyd had never met a Hells Angel before but he did “have significant experience with Pagans (Motorcycle Club) members,” he considered Delaware to be “Pagans territory” and he suspected trouble was brewing because “the Pagans and Hells Angels are rivals with a history of violent interactions.”
One of the two Angels, David Abel, who was later charged two counts of Carrying a Concealed Deadly Weapon, was good-natured and legally cooperative. The interaction between the cop and suspect was video-recorded. It went like this:
Trooper Lloyd: What’s going on?
David Abel: Nothing, how are you?
[Lloyd]: What’s going on? We got you going 80 and you were tailgating that car.
[Lloyd]: Any reason you were going that fast?
[Abel]: Just running a little late, that’s all.
[Lloyd]: Where you headed?
[Abel]: We’re going out on a run today.
[Lloyd]: Where to?
[Abel]: I think you got everything there [Abel is handing Lloyd
his license and registration].
[Lloyd]: Where you guys going?
[Abel]: [laughing] I’m not gonna go through all that – I’m not gonna go through all that man. We’re just goin’ out for a ride that’s all.
[Lloyd]: Yeah no big deal. I mean I’m not . . .
[Abel]: [Unintelligible] I mean yeah. Like I said we’re just running late. [Unintelligible] and that’s all . . .
[Lloyd]: In Delaware or out of Delaware?
[Abel]: We’re going out of Delaware. If you guys let us go, we’ll get right out of Delaware! [laughs]
[Lloyd]: Any weapons on ya?
[Lloyd]: No guns?
[Abel]: No I’m good.
[Lloyd]: Alright, I’m gonna pat you down make sure you don’t have a gun on ya.
[Abel]: Why ya, I mean, for what?
[Lloyd]: I’m gonna pat ya down.
[Abel]: I’ve got a gun [Unintelligible].
[Abel]: I’ve got a gun. I’ve got two. I’ve got one here [points to jacket] and one here [points to pants].
[Abel]: I’ve got a permit to carry, but I don’t have one in Delaware.
[Lloyd]: Alright. Let me just make sure you’re safe here. Put your hands behind your back.
What Is Reasonable
Abel filed a motion to suppress the guns found during the stop on the grounds that “he did not exhibit any conduct or behavior that would create a reasonable suspicion that he was armed or dangerous” and “that an affiliation with a motorcycle gang, in and of itself, is insufficient to provide a reasonable, articulable suspicion that an individual is armed and dangerous.”
The State argued that “the combination of Abel’s [Hells Angels] vest and his refusal to reveal his destination were enough to warrant the pat down for weapons under the totality of the circumstances.” The trial judge agreed with Abel last October.
The prosecution appealed to the State Supreme Court and last week those judges sided with Abel again. The court wrote:
“In order to justify a pat down on the grounds of officer safety, an officer must have reasonable, articulable suspicion that the person subject to the frisk is presently armed and dangerous. We define ‘reasonable suspicion’ as ‘the officer’s ability ‘to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion.’”
“A pat down . . . requires articulable facts specific to the person frisked.”
“Abel’s affiliation with the Hells Angels does not support a finding of reasonable, articulable suspicion that Abel was armed and dangerous. Lloyd had no personal, particularized experience with Abel, and extremely limited experience with the Hells Angels. At best, Lloyd extrapolated his general suspicions about the Pagans and applied them to Abel. While Lloyd may have believed that the Hells Angels and the Pagans are rival gangs and Delaware is Pagan territory, Abel was traveling on a very busy interstate and Lloyd was aware of no facts that indicated gang activity was occurring nearby. This was mid-morning and not in a high crime area. Abel’s failure to reveal his destination, combined with his Hells Angels affiliation, does not catapult this case into one where reasonable, articulable suspicion exists. That is particularly so, given the trial judge’s factual finding, gleaned from a real time video of the encounter, that Abel was cooperative, polite, and jovial.”