Officer stopped behind a car on an exit ramp, saw a furtive movement, and ordered defendant out of car, thereby making it a stop

The defendant’s car was parked on an off ramp, and an officer stopped behind him putting on his “hazard [not emergency] lights” and then saw what he perceived was a furtive movement that could involve weapons. He talked to the defendant who said that his wife was sick, and he ordered the defendant out of the car, thereby effecting a stop. There was no indication of any criminality. Asble v. Commonwealth, 50 Va. App. 643, 653 S.E.2d 285 (2007):

Davis assumed that Asble’s movement was a furtive gesture responsive to the approach of a policeman. However, the record does not disclose that Asble knew he was being so approached. The police car did not have its emergency lights on. No evidence disclosed that Davis was in uniform. No evidence disclosed that Asble knew Davis was a policeman or even that he was aware of his approach. The evidence disclosed only a motion that was not inherently culpable and that coincided with bringing to a stop a car that according to Davis’s acknowledged prior testimony was rolling backwards.

Davis identified no criminal activity of which he suspected Asble. He noted only that “sometimes” when movement such as he saw occurs, weapons and/or narcotics are present. This was, at best, a mere hunch, not a particularized suspicion flowing reasonably from articulable facts. Thus Davis lacked justification to remove Asble from the car and to search the car.

Consent was valid because defendant was told he could refuse and he had prior experience in the criminal justice system to know he could refuse. State v. Settles, 2007 Tenn. Crim. App. LEXIS 883 (November 26, 2007):

Likewise, the record does not demonstrate that there was any hostility at all between the policemen and the Defendant or that weapons were displayed; rather, the record demonstrates that the Defendant was cooperative from the start. The police did initiate contact and request the Defendant’s consent, but the record reflects that he gave it without hesitation (and with knowledge that he had the right to refuse) by signing two separate forms. In addition, the Defendant has a record of prior arrests and therefore has some experience interacting with law enforcement personnel.

Defendant’s bizarre and erratic behavior justified law enforcement following him into a building he entered without a key after an encounter on the street. McDermott v. State, 877 N.E.2d 467 (Ind. App. 2007).*

Police claim of exigency fails, so the entry was illegal, but the affidavit for the search warrant had enough independent information in it to justify issuance of the search warrant. Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007).*