all the local ordinances in the united states http://www.municode.com/Library


http://www.dgif.virginia.gov/hunting/regulations/general.asp

Valid Concealed Handgun Permit Holders May: ON DEPARTMENT OF GAME AND INLAND FISHERIES

  • Possess a concealed handgun during archery seasons, muzzleloader seasons, and general firearms seasons.
  • Possess a concealed handgun on National Forest and Department lands during the closed season.
  • Possess and transport a loaded concealed handgun in or on any vehicle on National Forest and Department lands.
  • Possess a concealed handgun while using dogs for tracking wounded or dead bear or deer but no game may be taken.


http://register.dls.virginia.gov/vol25/iss25/f4v1540.html

F. It shall be unlawful to possess or transport a any loaded gun firearm, or loaded crossbow in or on any vehicle at any time on national forest lands or department-owned lands.

G. The provisions of this section shall not prohibit the possession, transport and use of loaded firearms by employees of the Department of Game and Inland Fisheries while engaged in the performance of their authorized and official duties, nor shall it prohibit possession and transport of loaded concealed handguns where the individual possesses a concealed handgun permit as defined in § 18.2-308 of the Code of Virginia.

http://www.municode.com/Library/Library.aspx
http://www.dgif.virginia.gov/hunting/regulations/local-ordinances.pdf

http://en.wikipedia.org/wiki/Gun_laws_in_the_United_States_%28by_state%29#Virginia

Long Gun Open Carry (LGOC) is legal in Virginia. You cannot conceal carry a long gun.


http://vaguninfo.com/pages/opencarry.htm

§ 15.2-1209.1. Counties may regulate carrying of loaded firearms on public highways.

§ 18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

No requirement for action to be open. There's no requirement for it to be unloaded either.
To carry any center-fire rifle w/ a magazine of 20 or more, you have to have a CHP in SOME counties/cities in the Commonwealth:
Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William
This is the only law anyone has found that would affect Rifle OC:
http://leg1.state.va.us/cgi-bin/legp...cod+18.2-287.4

Transporting a LOADED long-gun in a vehicle MAY be regulated locally, with limitations:
http://leg1.state.va.us/cgi-bin/legp...cod+15.2-915.2

There have been limitations related to hunting that most wouldn't regard as applying to a guy w/ an AK/AR. Look for them using the search function on the site I linked here

No, you can open carry (on foot) any rifle or shotgun(fully loaded)that doesn't have any of the above restrictions (>20rd mags, threaded barrel, etc). However, if it has any of those restrictions, you need a CHP to open carry it (on foot). In a vehicle, in some jurisdictions, the long gun must be unloaded, whether or not it is in the open.

=============================================================================

Title 15.2 - COUNTIES, CITIES AND TOWNS.

Chapter 9 - General Powers of Local Governments

§ 15.2-915.2. Regulation of transportation of a loaded rifle or shotgun.

The governing body of any county or city may by ordinance make it unlawful for any person to transport, possess or carry a loaded shotgun or loaded rifle in any vehicle on any public street, road, or highway within such locality. Any violation of such ordinance shall be punishable by a fine of not more than $100. Conservation police officers, sheriffs and all other law-enforcement officers shall enforce the provisions of this section. No ordinance adopted pursuant to this section shall be enforceable unless the governing body adopting such ordinance so notifies the Director of the Department of Game and Inland Fisheries by registered mail prior to May 1 of the year in which such ordinance is to take effect.

The provisions of this section shall not apply to duly authorized law-enforcement officers or military personnel in the performance of their lawful duties, nor to any person who reasonably believes that a loaded rifle or shotgun is necessary for his personal safety in the course of his employment or business.
====================================================================================
Chapter 12 - General Powers and Procedures of Counties

§ 15.2-1209.1. Counties may regulate carrying of loaded firearms on public highways.

The governing body of any county is hereby empowered to adopt ordinances making it unlawful for any person to carry or have in his possession, for the purpose of hunting, while on any part of a public highway within such county a loaded firearm when such person is not authorized to hunt on the private property on both sides of the highway along which he is standing or walking; and to provide a penalty for violation of such ordinance not to exceed a fine of $100. The provisions of this section shall not apply to persons carrying loaded firearms in moving vehicles or for purposes other than hunting, or to persons acting at the time in defense of persons or property.


===========================================================================================

http://www.vsp.state.va.us/Firearms_Transporting.shtm

§ 15.2-1209.1. This section empowers the governing body of any county to adopt ordinances making it unlawful for any person to carry or have in his possession, for the purpose of hunting, while on any part of a public highway within such county a loaded firearm when such person is not authorized to hunt on the private property on both sides of the highway along which he is standing or walking; and to provide a penalty for violation of such ordinance not to exceed a fine of $100. The provisions of this section shall not apply to persons carrying loaded firearms in moving vehicles or for purposes other than hunting, or to persons acting at the time in defense of persons or property.

§ 15.2-915.2.  This section empowers the governing body of any county or city to, by ordinance, make it unlawful for any person to transport, possess or carry a loaded shotgun or loaded rifle in any vehicle on any public street, road, or highway within such locality. Any violation of such ordinance shall be punishable by a fine of not more than $100. Game wardens, sheriffs and all other law-enforcement officers shall enforce theprovisions of this section. No ordinance adopted pursuant to this section shall be enforceable unless the governing body adopting such ordinance so notifies the Director of the Department of Game and Inland Fisheries by registered mail prior to May 1 of the year in which such ordinance is to take effect. The provisions of this section shall not apply to duly authorized law-enforcement officers or military personnel in the performance of their lawful duties, nor to any person who reasonably believes that a loaded rifleor shotgun is necessary for his personal safety in the course of his employment or business.




============================================================================================

I'm awake now and my head is clear.

The bottom lines are:
- In Loudoun county you may not carry a loaded rifle or shotgun in your vehicle unless you reasonably believe that it is necessary for your personal safety in the course of your employment or business. Note the part "in the course of [your] employment or business." If your employment or business can not be used to justify your need for personal protection, the exception may not apply to you.

- All other state firearms/weapons laws still apply.. 18.2-287.4, 18.2-300, 18.2-308, 18.2-308.1, 18.2-308.1:1, and many, many others. There are just too many to list here.

- See 15.2-915 and 15.2-915.1 thru .4 for details on state preemption, including which regulations a locality may enact by ordinance.

Edited to correct error in the last bullet point: 15.2-915.2 instead of 18.2-287.4
Edited again to just list the Virginia regulations regarding preemption, etc...

====================================================================




deadly force in the home in virginia
Quote Originally Posted by user from OCDO on Time of Day
The issue presented is whether or not the intruder is a
burglar. You're entitled to presume that he is, if it's night-time, since
the definition of burglary is the breaking and entering into the dwelling
place of another in the night-time with the intention of committing a
felony. It's the intent to commit the felony that you're presuming if you
wake up at one o'clock a.m. with a stranger hovering over your bed. The use
of deadly force is excusable in stopping a serious felony in progress or
stopping one from imminently being committed. The "serious" felonies are
rape, robbery, murder, burglary, and arson. Obvious, as each of these
involves a potential threat to life and limb of innocent persons. If the
intruder comes in during the daytime, he's a trespasser, not a burglar. He
may be guilty of statutory breaking and entering, but that's not burglary.
So you can't use deadly force unless you reasonably apprehend the threat of
an imminent serious bodily injury. You may use such force as is reasonably
necessary to expel the trespasser, including deadly force if the level of
resistence requires it (e.g., he starts waving his machete in your
direction).

================================

buying a gun in virginia

Primary Identification

The primary form of ID shall consist of a valid photo-ID form issued by a governmental agency of the Commonwealth or of the prospective purchaser or transferee’s home state that denotes the individual’s name, race, sex, address, and date of birth. Where the primary form is a photo-ID issued by the Virginia Department of Motor Vehicles (DMV), the dealer shall not transfer a firearm to the prospective purchaser until 30-days after the date of issue of an original or duplicate driver's license unless a copy of his/her DMV driver's record is presented showing that the original date of issue was more than 30-days prior to the attempted purchase.

The primary form of ID for a non-Virginia resident, for the purchase of a rifle or shotgun, must consist of a valid photo-ID issued by a governmental agency of the prospective purchaser’s home state that denote the purchaser’s name, race, sex, date of birth and address. Federal law prohibits the sale or transfer of a handgun to a nonresident of the state in which the handgun is being purchased.

A social security card IS NOT an acceptable form of identification.

A birth certificate IS NOT an acceptable form of identification.

Effective January 1, 2004, DMV will not issue an original license, permit, or ID card to any applicant who has not presented evidence that he/she is a citizen of the United States, a legal permanent resident, or an authorized temporary resident alien of the United States. In the instance of temporary residence, the DMV document will only be valid during the period of authorized stay in the United States.

Secondary Identification

The secondary form of identification, for Virginia residents and residents of other states, must show an address identical to that shown on the primary form of identification. Some acceptable forms of secondary ID are:

* a current lease,
* evidence of currently paid personal property tax or real estate tax,
* a current utility or telephone bill,
* a current voter registration card,
* a current bank check,
* a current passport,
* a current automobile registration and
* current hunting or fishing license.


============================================================================================================================

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.



============================================================================================================================


http://forum.opencarry.org/forums/showthread.php?91455-Email-to-Va-State-Police-about-traffic-stop-disarming
Proshooter's comment said nothing about stop and ID. He mentioned investigatory stops, Terry and case law. A traffic stop is not a stop and ID stop, a legal stop requires RAS (reasonable amount of suspicion) of criminal activity. I will dig up some case law and pm you.

========================================================================================================================
http://forum.pafoa.org/general-2/54746-stop-detain-search-what-can-officer-do-legally-ianal.html
3-levels of Interaction between Police and Citizens
- - - - - - See AYALA & HAYWARD (PA Superior Court Cases)

A) Mere Encounter
Questioning can occur anytime/anyplace through a 'mere encounter'.
Citizens are not required to stop or respond to these questions.

B) Investigative Detention (often referred to as a Terry Stop)
With 'Reasonable suspicion that criminal activity is afoot', citizens may
be stopped and detained for a brief period without it being arrest.

C) Custodial Detention (iow, Arrest)
If 'Probable Cause' has been established, the citizen may be arrested.


====================================================================================================================



There are only 10 Must Notify States where you must inform officer if they approach you must tell them you are armed.
The Old Dominion is thankfully,not among them.
Alaska,Louisiana,Michigan,Nebraska,North Carolina,Ohio,Oklahoma,South Carolina,Texas,and Utah.

§ 18.2-308.8. Importation, sale, possession or transfer of Striker 12's prohibited; penalty.

It shall be unlawful for any person to import, sell, possess or transfer the following firearms: the Striker 12, commonly called a "streetsweeper," or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells. A violation of this section shall be punishable as a Class 6 felony.


link to quick search all virginia laws period but not case law

http://leg1.state.va.us/
go to
Code of Virginia -  statutory law

http://leg1.state.va.us/000/lst/LS967451.HTM



can I have a gun on some kind of k to 12 grade school property?

Yes under these circumstances
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.1

1)
(vi) a person who possesses an unloaded firearm that is in a closed container ("closed container" includes a locked vehicle trunk.)

2)
vii) a person who has a valid concealed handgun permit and possesses a concealed handgun while in a motor vehicle in a parking lot, traffic circle, or other means of vehicular ingress or egress to the school

§ 22.1-271.1. Definitions.

For the purpose of § 22.1-271.2:

"School" means (i) any public school from kindergarten through grade 12 operated under the authority of any locality within the Commonwealth, (ii) any private or religious school that offers instruction at any level or grade from kindergarten through grade twelve, and (iii) any private or religious nursery school or preschool, or any private or religious child-care center required to be licensed by the Commonwealth.



Smurfologist wrote:
possumboy wrote:
Heh, I'm just the oppsite. I don't look, I just carry. Let them ask me to leave.
I hear you, possumboy! I thought that signs carry no weight in VA, is that not right?!? I was under the impression that you have to be asked to leave, is that not right?!? This is the reason why I don't look for signs. Please correct me if I need to be corrected.

2nd Amendment........Use it.........Or, lose it!!:X
That is my understanding. You have to asked to leave because they cannot prove you stood there and read all the small print.

I know in some states, they have requirements for posting -sizing and shape- and those signs do carry the weight of law. In VA, the signs mean nothing, but being asked to leave does.

Also, it is a criminal trespass charge, and not a gun charge if you refuse to leave. I've been meaning to look up criminal trespass to see what class it is and the pentalities for violation. Anyone have the code available?



============================================================================================================================

http://leg1.state.va.us/000/cod/18.2-308.HTM

If you are carrying concealed and a cop asked to see permit you must show it.

The person to whom the permit
is issued shall have such permit on his person at all times when he is
carrying a concealed handgun in the Commonwealth and shall display the permit
on demand by a law-enforcement officer.







the law of self-defense is the law of necessity.  A person only has
the privilege to exercise reasonable force to repel the assault.  "The 
privilege to use such force is limited by the equally well 
recognized rule that a person 'shall not, except in extreme cases, 
endanger human life or do great bodily harm.' . . .  [T]he amount 
of force used must be reasonable in relation to the harm 
threatened."  Diffendal v. Commonwealth, 8 Va. App. 417, 421, 
382 S.E.2d 24, 26 (1989) [(citation omitted)].
Thus, a person may use deadly force in self-defense only if confronted with deadly force. Foote, 11 Va. App. at 69, 396 S.E.2d at 856 (citations omitted) (emphasis added). 

 

Armed Citizens' Legal Defense Network, Inc.
Do You Worry About the Aftermath of a Self-Defense Shooting?
http://armedcitizensnetwork.org/

 

how to refuse questioning about open carry concealed carry and right to remain silent even when police officer had probable cause

"sorry i don't consent to questions from law enforcement"

"sir or madam i do not answer any questions from law enforcement"

"sir madam i wish to remain silent"

"I have the right to remain silent"

be polite and assert your right 

"I do not consent to any searches or seizures i can comply but under protest and duress" 

http://www.boselawfirm.com/

 

http://www.virginialegaldefense.com/

BILL OF SALE FOR GUNS IN VIRGINIA 

PvtHandgunTransferBOS.pdf PvtHandgunTransferBOS.pdf
Size : 1797.354 Kb
Type : pdf

great reporter for gun rights

Mike Stollenwerk's photo

, DC Gun Rights Examiner

http://www.examiner.com/gun-rights-in-washington-dc/mike-stollenwerk

this link will take you to a map that will show you which permit allow you to carry concealed in that state

http://apps.carryconcealed.net/legal/reciprocity.php

http://apps.carryconcealed.net/legal/virginia-ccw-state-laws.php

http://forum.opencarry.org/forums/showthread.php?34912-Norfolk-VA&s=a66778e6f7c1f62cc5b98af7925ceb3e

Open carry shouldn't be a problem in Norfolk. (See my post under "Restaurant Carry") I understand the malls can be a pain, and are probably posted, but if there isn't a prohibition sign, you should be good to go. I can't speak specifically about Nauticus or the Wisconsin, but they are not federal facilities, so again, unless posted, should be OK. Actually, if they are publicly owned (state or city), it would be illegal for the staff to forbid carry, but if you are from out of state, it would probably be best to not make waves if they do, and let our VCDL take care of the anti-gun scofflaws.

 http://www.concealed-carry.net/virginia-law.php

Quick list in Virginia where you can’t carry a gun

Private property when prohibited/// Courthouse/// School property unless dropping kid from car/// Airport unless checked///Jail///you must conceal handgun if going in public university buildings open carry on walkway okay


www.handgunlaw.us 4 Places Off-Limits Even With A Permit/License

 

Private property when prohibited by the owner of the property, or where posted as prohibited. Violation is a trespass charge and not a firearms violation

Carrying dangerous weapon to place of religious worship for self defense is okay.

Courthouse. Violation is a high-level misdemeanor off limits

§ 18.2-283.1. Carrying weapon into courthouse. "it shall be unlawful for any person to possess in or transport into any courthouse in this Commonwealth any (i) gun"


School property/school functions (School busses are school property) unless gun is unloaded, in an enclosed container (but NOT in the glove box or console) and in the vehicle. A car's trunk is considered an enclosed container. However, a concealed handgun permit holder can have a loaded, concealed handgun in the vehicle while in the school parking lot, traffic circle, etc. The concealed handgun and the permit holder must stay in the vehicle. Firearms are not banned from property open to the public where a school function is being held unless that property is being used exclusively for the school function. Violation of this statute is a felony

Non-secure areas of airport terminals are off limits unless you are a passenger and you have your gun unloaded, in a locked container in your checked luggage, and declare the gun at the check-in counter. Violation is a high-level misdemeanor.

From VCDL:

Virginia has 72 airports. Only 9 of these 72 airports are classified as "air carrier airports" and are thus affected by the gun ban in §18.2-287.01.

An email from the Office of the Governor, dated June 3, 2004, identified the following as the "air carrier airports" in Virginia:

Reagan National Arlington, VA
Charlottesville Regional Charlottesville, VA
Dulles International Chantilly, VA
Lynchburg Municipal Lynchburg, VA
Newport News . Williamsburg Regional Newport News, VA
Norfolk International Norfolk, VA
Richmond International Richmond, VA
Roanoke Regional Roanoke, VA
Shenandoah Valley Regional Staunton, VA

Regional Jail or Juvenile Detention Facility.

Public universities is okay to open carry on walkways but you must conceal your handgun once you enter buildings and hospitals of public universities.

 

 

Virginia Attorney General says UVA cannot ban gun carry


Virginia Attorney General says UVA cannot ban gun carry - Washington DC gun rights | Examiner.com http://www.examiner.com/gun-rights-in-washington-dc/virginia-attorney-general-says-uva-cannot-ban-gun-carry#ixzz1YiZdUqOE

On the heels of his recent opinion holding that "self-defense" is "good and sufficient reason" to carry a gun to church, Virginia Attorney General Ken Cuccinelli now says that state colleges like the University of Virginia cannot ban the carriage of concealed handguns by proper license holders. The opinion was written in response to a question by Senator Emmett Hanger (R-Mount Solon).

Cuccinelli reasoned that concealed handgun permit holders were explicilty entitled by law to carry concealed handguns throughout the Commonwealth except where prohibited "by law," and therefore state agencies like UVA could not ban concealed carry even in campus buildings and medical facilities by mere "policy.  State universities could however go through the Commonwealth's formal rule making process and publish a regulation in the Virginia Administrative Code.

But even then a state college does not have carte blanche to ban gun carry on campus notes Cuccinnelli, citing to the Virginia supreme Court's recent action to uphold a published George Mason University regulation.  In that case, a constitutional attack against a published regulation on Second Amendment grounds, the Court reasoned in part that GMU's regulation was not a total ban on gun carry, but rather a "tailored" regulation generally allowing both open and concealed carry on the open grounds of the GMU campus by students and visitors alike.

Interestingly, a violation of GMU's regulation carries no penalty - college officials would have to first order a person to leave the campus location where gun carry is banned by regulation, and only if she refused, would possible criminal tresspass liability arise. According to OpenCarry.org's campus carry map, most states are just like Virginia and do not generally prohibit by law gun carry on college campuses by visitors or students. 

If UVA does decide to attempt to promulgate a regulation to ban gun carry at UVA, college officials will have to contend with opposition from gun rights groups like the Virginia Citizens Defense League during the notice and comment rule making process, as well as a possible political backlash in the legislature from lawmakers like Senator Hanger, and subsequent litigation against any published regulation.







Police are under no legal obligation to provide protection for any individual. Courts have ruled the police have an obligation only to society as a whole. (Warren v. District of Columbia, 444 A.2d 1, 1981 ) 

Attorney general document saying it is okay to conceal carry inside of university buildings and hospitals. It is also okay to open carry on campus as long as its not at an event or inside a building. 

http://voices.washingtonpost.com/virginiapolitics/2011/01/gun_rights_advocates_celebrate.html

Posted at 3:50 PM ET, 01/19/2011

McDonnell quietly issues directive allowing open carry of firearms in state parks

By Fred Kunkle

Gun rights advocates celebrated Wednesday--and supporters of gun control grieved--over news that Gov. Robert F. McDonnell has quietly lifted the ban against people carrying firearms openly in state parks.

Philip Van Cleave, president of the Virginia Citizens Defense League, sent an e-mail blast to fellow gun-rights supporters with news that as of Tuesday people could carry openly. Gun owners with concealed weapons permits had the right to carry in Virginia State Parks for some time, but never openly, he said.

In a letter dated Jan. 14, McDonnell (R) directed the Department of Conservation & Recreation to cease enforcing regulations prohibiting open carry. The governor, referring to an opinion he had formulated as attorney general in September 2008 at the request of then-Sen. Kenneth Cuccinelli (R), said the agency had exceeded its statutory authority in banning people from carrying firearms openly.

Fireworks are still prohibited in state parks, and alcohol is banned except in "private areas" such as cabins or campsites, according to the agency's Web site. There was no mention of guns on the site.

"These regulations once finally approved would simply allow law abiding Virginians who legally own a firearm to exercise the same rights in a Virginia state forest or state park that they already possess while elsewhere in the Commonwealth," said J. Tucker Martin, a spokesman for the governor. Martin said the governor has also given initial approval to a proposed regulatory change allowing concealed carry and open carry in state forests.

Those proposed regulations are in the process of going to the public comment stage, he said.

Volume 27 Issue 20 of the Virginia Register of Regulations, modifies 4VAC10-30-170 to remove the prohibition against both open and concealed carry on land under the ownership and management of the Department of Forestry.

Gun-control advocates were not pleased at the new policy or the way McDonnell carried it out.
"I think he tried to sneak it by," said Andy Goddard, who heads the Virginia Center for Public Safety. His son, Colin Goddard, survived gunshot wounds during the Virginia Tech massacre in 2007.

"I'm not surprised at what Gov. McDonnell's done, because he's in the back pocket of the NRA,' said Lori Haas, whose daughter also survived the attack. "But I think to do this without any sort of public knowledge or public comment is contrary to some of his campaign statements on transparency."

She also predicted that the move will have a chilling effect on the tourism business.

"Can you imagine the family with young children who look over to the campsite next door where the person is openly carrying an AR-15?" she said.

Senate Majority Leader Richard L. Saslaw shrugged.

"I'm not surprised--I'm only surprised it took him a whole year," Saslaw said, noting that President Obama has backed off gun control as an issue. Last year, the federal government lifted restrictions on carrying firearms in national parks.
"Do I agree? No," Saslaw said. "But it's hard to climb all over him when Obama's done the same thing at the federal level."

--Rosalind S. Helderman contributed to this item.

pdf file below explains that open carry and concealed carry is now legal in state parks and forest  

monachuslex.com/?p=69

Open Carry Coming to Virginia State Forests July 7th, 2011

v27i20.pdf v27i20.pdf
Size : 624.8 Kb
Type : pdf

Posted at 01:24 PM ET, 04/11/2011

Cuccinelli says guns in churches are okay if they’re for self-defense

Virginians may carry weapons for personal protection into places of worship while religious services are being conducted, according to a new legal opinion by Attorney General Ken Cuccinelli II (R).

Virginia law bars carrying weapons in churches and other worship houses while a religious meeting is being held unless a person has “good and sufficient reason.”

In an opinion written Friday and posted on Cuccinelli’s Web site Monday, Cuccinelli indicates that the “right of self-defense lies at the heart of the right to keep and bear arms.” Therefore, he concludes that “carrying a weapon for personal protection constitutes a good and sufficient reason under the statute.”

However, Cuccinelli indicates that places of worship can choose to restrict or bar weapons if they wish, indicating that churches, synagogues, mosques and other institutions have a private property right to set their own rules with regards to guns.

The legal opinion comes in response to an inquiry from state Del. Mark Cole (R-Fredericksburg), who had sponsored an unsuccessful bill in 2010 to make it legal for a concealed weapons permit holder to carry a handgun in a place of worship during religious services with the permission of a religious leader.

If widely followed, Cuccinelli’s ruling would have the same effect — opening places of worship to weapons unless they are barred by the religious institution.

Cuccinelli’s opinion is only advisory and does not carry the force of law.

By Rosalind S. Helderman  |  01:24 PM ET, 04/11/2011

 


chapter 684 are the ordinances for discharging firearms in loudoun county virginia

Chapter+684-Weapons+and+Explosives.pdf Chapter+684-Weapons+and+Explosives.pdf
Size : 26.614 Kb
Type : pdf

 Did you know you are allowed to moderately drink while openly carrying a firearm? This is the way Virginia should be, free and full of liberty :D

The following bill did not pass i repeat did not pass and still preserves your right to have a beer and openly carry a firearm.

HB2343       Patron: Joseph D. Morrissey  -  all patrons

Carrying a handgun while under the influence of alcohol or drugs; penalty.  Creates a Class 1 misdemeanor for any person carrying a handgun in a public place while under the influence of alcohol or drugs and prohibits a person from obtaining a concealed handgun permit for five years following such a conviction. The prohibition applies regardless of whether the person is carrying the handgun openly or concealed with a concealed handgun permit. Current law makes it a Class 1 misdemeanor to carry a concealed handgun in a public place while under the influence of alcohol or drugs, but does not speak to openly carrying a handgun while under the influence.

VCDL Comments
This bill adds open carriers to those who cannot carry in a public places while under the influence of alcohol or drugs, while removing others from the restriction - VCDL Strongly Opposes this bill as it once again carves out special exemptions and privileges for police, Commonwealth Attorneys, the Harbormaster of Hopewell, etc. who can carry concealed without a permit

Another Legislative Victory For Virginia Gun Owners!

===============================================================================

Virgin Islands Temporary Permit

Persons with a valid Virginia concealed carry permit may apply individually to the United States Virgin Islands Police Department for temporary reciprocal recognition of a CCDW license while in the Virgin Islands. This temporary recognition is normally for ninety (90) days from the date of issue.

An application for temporary privileges may be requested from:

Office of the Commissioner
Criminal Justice Complex
Charlotte Amalie, St. Thomas, VI 00802


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http://www.wikilaw3k.org/law/Law-Enforcement-Police/Do-I-need-a-permit-to-carry-a-taser-or-ASP-baton-160538.htm

Can I carry a Taser or a collapsible baton or night stick in Virginia?

Permits are only issued for handgun carry. The state of Virigina does not issue permits for Tasers or Batons. Tasers are legal to carry anyway. The law on concealed weapons, § 18.2-308, makes no mention of any device like a Taser as being prohibited. Batons, it is a little uncertain. The aforementioned law makes it illegal to concealed carry a "spring stick" which is a baton that is spring-loaded and pops open with a button is pressed. ASPs don't work that way, you have to swing them to open them. However, the statute also says "any weapon of like kind as those enumerated in this subsection" so it is possible that an ASP is "of like kind" to a spring stick. However there is no caselaw where that was ruled to be true. It would be for a court to decide if you actually get caught. And if you behave yourself, you never will. In my state of Maryland, it's not really all that clear batons are illegal either. But it's never come up because even though I have carried an ASP baton for 10 years, no cop has ever approached me because I never did anything suspicious to get their attention in the first place.


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http://www.loudoun.gov/Default.aspx?tabid=1352


Hunting and Firearms in Loudoun County

With hunting seasons in Loudoun County likely to attract thousands of hunters, it’s important that everyone be aware of the laws and ordinances regulating hunting and firearms. On this webpage, you will find Chapter 684 of the Loudoun County Codified Ordinances regarding weapons and explosives; as well as ordinances relating to the discharging of weapons near recreation areas; and hunting and trapping near highways.

Information about state regulations can be found online through the Virginia Department of Game & Inland Fisheries' Virginia Hunting and Trapping Regulations. The department's website provides information on seasons, bag limits, license requirements, costs, and basic regulations information.

Chapter 684 Weapons and Explosives

Cross References

Regulation of firearms by counties - see Code of Va. §§15.2-1206 et seq., 18.2-287
Toy firearms - see Code of Va. §18.2-284
Discharge of fireworks in park and recreation areas -see S.U. & P.S. 1092.19
Carrying or discharging weapons in parks and community centers -see S.U. & P.S. 1092.20
Explosives and blasting agents -see F.P. 1602.06 (F-2600.1 et seq.)
Fireworks -see F.P. 16O2.06 (F-2701.2 et seq.)

684.001 Definitions

As used in this chapter, unless the context clearly requires a different meaning:

a. "Sheriff' means the Sheriff of the County or his or her designee.

b. "Firearm" means any weapon which will, is designed to or may be readily converted to expel a projectile by the action of an explosive, provided that stud nailing guns, rivet guns and similar construction equipment, neither designed or intended as weapons, shall not be deemed firearms.

c. "Gun" means and includes any rifle, shotgun, pistol or other firearm, and also includes any air gun, air rifle or other similar device designed and intended to expel a projectile through a gun barrel of any length by means of explosive, expansion or release of compressed gas or compressed air.

d. "Parcel" means any lot or other contiguous area of land in one ownership or in which all of the owners have joined in a written acknowledgement of the rights of all of them to shoot on all of such land, which constitutes, when combined, an area of not less than twenty acres.

e. "Pistol" means a gun having a barrel of less than sixteen inches in length. (LOUDOUN COUNTY LAW INTERPRETATION BARREL UNDER 16 INCHES IS A PISTOL)

f. "Recreational shooting" means the discharge of firearms or weapons, except bows and arrows, at fixed or moveable artificial targets.

g. "Rifle" means a gun designed, made and intended to be fired from the shoulder and designed and made to use the energy of an explosive or compressed gas or compressed air to expel a single projectile through a rifled barrel for each pull of the trigger.

h. "Shotgun" means a weapon designed, made and intended to be fired from the shoulder and designed and made to use the energy of an explosive in a shotgun shell to fire through a smooth bore one or a number of balls shot for each pull of the trigger.

i. "Starting pistol" means any device which is designed or functions to simulate the firing of a weapon by means of a primer or other explosive charge, but which cannot be readily converted for use as a firearm. (Ord. 85-03. Passed 1-22-85.)

684.01. Shotguns or Rifles on Public Highways and in Vehicles

a. No person shall carry or have in his possession a loaded rifle or shotgun while walking or standing on any part of a public street, road or highway within the County, unless he is authorized to hunt on the private property on both sides of such public street, road or highway at such point.

b. Subsection (a) hereof shall not apply to persons acting at the time in defense of persons or property. (Ord. Unno. Passed 4-18-77.)

c. No person shall transport, possess or carry a loaded shotgun or loaded rifle in any vehicle on any public street, road or highway within the County. A shotgun or rifle shall be considered to be loaded when any unfired or live ammunition is contained in the chamber of the weapon or in any other portion of the weapon that is designed to hold extra ammunition and that is attached to or affixed to the weapon. (Ord. 87-02. Passed 4-20-87.)

d. Subsection (c) hereof shall not apply to duly authorized law enforcement officers or military personnel in the performance of their lawful duties, or to any person who reasonably believes that a loaded rifle or loaded shotgun is necessary for his personal safety in the course of his employment or business. (Ord. Unno. Passed 4-18-77.)

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§ 18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.

The provisions of this section shall not apply to law-enforcement officers, licensed security guards, military personnel in the performance of their lawful duties, or any person having a valid concealed handgun permit or to any person actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

The exemptions set forth in § 18.2-308 shall apply, mutatis mutandis("the necessary changes having been made".) , to the provisions of this section. 

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§ 15.2-1209.1. Counties may regulate carrying of loaded firearms on public highways.

The governing body of any county is hereby empowered to adopt ordinances making it unlawful for any person to carry or have in his possession, for the purpose of hunting, while on any part of a public highway within such county a loaded firearm when such person is not authorized to hunt on the private property on both sides of the highway along which he is standing or walking; and to provide a penalty for violation of such ordinance not to exceed a fine of $100. The provisions of this section shall not apply to persons carrying loaded firearms in moving vehicles or for purposes other than hunting, or to persons acting at the time in defense of persons or property.




684.02 Discharging BB Guns in Heavily Populated Areas

a. Purpose. The purpose of this section is to provide against the shooting of air-operated, carbon dioxide gas-operated and spring-operated weapons in heavily populated areas of the County, under authority granted the County in Section 15.2-1209 of the Code of Virginia of 1950, as amended. (Ord. 98-01. Passed 3-18-98.)

b. Definition. "BB gun," for the purposes of this section, means and includes any air gun, air rifle and similar device of .177 caliber or less, designed and intended to expel a projectile through a gun barrel of any length by means of expansion or release of compressed carbon dioxide gas or compressed air or by a combination of spring action and compressed air.

c. Unlawful Acts. No person shall discharge any BB gun or hunt or attempt to hunt with any BB gun in any area of the County zoned PDH-12, or in any residential area of the County developed at a density of one unit or more per half acre within one and one-half miles of any area zoned PDH-12, provided that this section shall not be deemed to prohibit the following acts:

1. Any shooting or discharge of BB guns upon a lawfully existing target, trap or skeet range;

2. Any shooting or discharge of BB guns upon a target range operated by any police department or other law enforcement agency;

3. Any discharge of BB guns in an entirely indoor target range, provided that adequate provisions are made to retain within the structure all projectiles discharged; and

4. Any discharge of an unloaded BB gun, or any discharge of a BB gun not resulting in the expulsion of a projectile.

684.03 Reckless or Careless Use of Guns.

No person shall use, employ or discharge any gun in a reckless or careless manner or so as to endanger the life or property of another. (Ord. 85-03. Passed 1-22-85.)

684.04. Transfer of Guns to Minors Prohibited; Exceptions

No person shall give, sell, rent, lend or otherwise transfer any gun or starting pistol, or any projectile therefor, to a minor under the age of eighteen years, except where the relationship of parent and child, guardian and ward or adult instructor and pupil exists between such person and the minor. (Ord. 85-03. Passed 1-22-85.)

684.05. Carrying and Discharge of Guns by Minors

a. No minor under the age of eighteen years shall carry any gun or starting pistol on the public highways or public lands of the County, unless such minor is accompanied by an adult where the relationship of adult and minor is that of parent and child, guardian and ward or instructor and pupil.

b. This section shall not apply to a gun carried unloaded in a completely closed carrying case or when such gun is completely and securely wrapped and not concealed on the person.

c. No minor under the age of eighteen years shall discharge a gun anywhere in the County, unless in the presence and under the supervision of an adult bearing the relationship defined in subsection (a) hereof. (Ord. 85-03. Passed 1-22-85.)

684.06 Discharge of Firearms

a. (1) The Board of Supervisors prohibits the discharge of firearms, except for certain hunting activities provided herein, in the following area of the County:

The area within a line following State Route 620 (Braddock Road) from the boundary with Fairfax County west to its intersection with State Route 659, then along State Route 659 north to its terminus at State Route 7, then following State Route 7 west to the corporate limits of the Town of Leesburg, then following the corporate limit line of the Town of Leesburg north and west to the Potomac River, then east along the Potomac River boundary with Maryland to the Fairfax County line, then southwest along the Fairfax County line to its intersection with State Route 620.

2) Nothing herein shall prohibit the following hunting activities with firearms, subject to other applicable laws and regulations:

A. Deer hunting with handguns, shotguns or muzzle-loading rifles using a single projectile; or

B. All other hunting with rifles of .2 2 caliber rimfire or less, handguns, shotguns and muzzle-loading rifles using single or multiple projectiles.

b. The discharge of firearms is prohibited within 50 yards of a highway in the primary or secondary system of state roads.

c. The discharge of firearms is prohibited within 100 yards of any public park or school. Nothing in this section shall be enforced within a national or state park or forest or wildlife management area.

d. The discharge of firearms is prohibited within 100 yards of a building with a current occupancy permit unless the owner or authorized agent has given permission.

e. This section does not apply to the following actions:

(1) Any shooting or discharge of firearms upon a lawfully established target, trap or skeet range;

(2) The discharge of firearms by any duly authorized peace officer or law enforcement official acting in the proper performance of his duties;

(3) Any shooting or discharge of firearms upon a target range operated by any police department or other law enforcement agency;

(4) Any discharge of firearms in defense of one's life or to kill a dangerous or destructive wild animal;

(5) The discharge of blank cartridges in theatrical performances or sporting events or at military funerals or other military affairs; and

(6) A managed hunt to control the deer population under the supervision of the federal, state or local law enforcement or game management officials. 
(Ord. 01-02. Passed 4-16-01).

684.99 Penalty.

(EDITOR'S NOTE: See Section 202.99 for general Code penalty if no specific penalty is provided.)

Chapter 1092 Parks and Recreation Areas

1092.20 Carrying or Discharging Weapons.

The carrying or discharging, in any park or community center, of any firearm, air gun, gas gun, spring-operated gun, BB gun, slingshot, dart device or bow and arrow is prohibited, except as specifically authorized by the Department of Parks and Recreation in connection with a supervised recreational activity or except as may be carried by a duly authorized law enforcement officer. (Ord. 85-12. Passed 9-16-85.)

Chapter 612 Dogs and Other Animals

612.22 Hunting and Trapping Near Highways

a. Purpose. The purpose of this section is to protect the traveling public within the County, as well as pets or other animals owned by the public, from injury caused by hunting or trapping near primary and secondary highways, and to protect the property rights of persons owning real property near primary and secondary highways from persons hunting and trapping within those areas.

b. Prohibited. No person shall hunt or attempt to hunt, with a firearm, a game bird or game animal    while such person is on or within 100 yards of a primary or secondary highway, or trap or attempt to trap a game animal or furbearer within fifty feet of the shoulder of a primary or secondary highway, unless such trapping is done with the written permission of the, owner of the land on which such trapping is done.

c. Interpretation. For the purposes of this section, "hunt, " "attempt to hunt," "trap" or "attempt to trap" does not include the necessary crossing of such highways for the bona fide purpose of going into or leaving a lawful hunting or trapping area.

d. Penalty. Violation of this section shall constitute a Class 3 misdemeanor. (Ord. 98-04. Passed 4-1-98.)

http://www.virginialegaldefense.com/


Notes on the issue of the need to identify one's self when demand be made upon him by law enforcement officers

 

(No attempt to correctly format these notes and excerpts has been made, as yet.)

 

SUMMARY:

 

It is a legitimate exercise of the state's police powers to enact statutes and ordinances requiring that a person identify himself to law enforcement officers.  In the absence of such authorization, it is a violation of a person's right to be free of unreasonable seizure of his person (i.e., involuntarily detained / arrested) under the Fourth Amendment, as incorporated via the "due process" clause of the Fourteenth Amendment of the U.S. Constitution.

 

Virginia has no such general statute, so the only requirement is the common law duty to identify one's self to a police officer after dark.  This duty has never been enforced, as near as can be determined, and may be void under the doctrine of desuetude. 

 

Some jurisdictions in Virginia have local ordinances that require a person to identify himself upon such demand.  As of this writing, it appears that only one case has evaluated such a demand for constitutionality: Jones v. Commonwealth, 230 Va. 14, 17-18, 334 S.E.2d 536 (1985).  That case said, in effect, that the demand can only be made after law enforcement already has a good reason to stop the individual ("articulable reasonable suspicion").  Otherwise, the ordinance is a legitimate exercise of the powers delegated by general law to the municipality.  There is no general law granting the specific power to enact an ordinance requiring that people identify themselves to police.

 

No documentation may be demanded in any case (i.e., oral identification is sufficient), unless one is engaged in an activity for which a certificate of license (driving, hunting, fishing, carrying a concealed handgun, etc.) is normally required.

 

If one were arrested for failure to provide proper identification, he might argue that the general law is the common law of Virginia, as amplified by statute; that having already made one rule the law for the Commonwealth (the common law duty to identify one's self after dark), that municipal ordinances go beyond the grant of general authority, and are therefore void.  The principles that apply are the Dillon Rule and the common law precept, "expressio unius alterius exclusio est" (the expression of one thing is the exclusion of another).

 

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FALSE IDENTIFICATION

 

§ 19.2-82.1. Giving false identity to law-enforcement officer; penalty.

 

Any person who falsely identifies himself to a law-enforcement officer with the intent to deceive the law-enforcement officer as to his real identity after having been lawfully detained and after being requested to identify himself by a law-enforcement officer, is guilty of a Class 1 misdemeanor.

 

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DEMAND FOR IDENTIFICATION

 

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The police force of a locality is hereby invested with all the power and authority which formerly belonged to the office of constable at common law ...

 

Virginia Code § 15.2-1704

 

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The office of the Constable originated in the Byzantine (Eastern Roman) Empire, apparently during the time of Theodosius, in the Sixth Century.  It originally designated the head stabler for the Emperor's horses.  There is evidence that Charlemagne had adopted the legal forms of the predecessor empire, including the office of Constable, which was, at that time, a military rank, roughly equivalent to a Marshall.  The office was brought to England by William the Conqueror in 1066, though he retained traditionally equivalent offices throughout the parts of England which he controlled, such as the Danelaw's "jarl" (Earl). 

 

The Statute of Winchester, Ed. I, R., 1285, enshrined the principle that there be two constables appointed in every hundred with responsibility for suppressing riots and violent crimes and for the arming of the militia to enable them to do so.  "Whereas in the Statute made at Winchester in the time of King Edward, ...it is contained, That a any stranger pass by the Country in the Night, of whom any have suspicion, he shall presently be arrested and delivered to the Sheriff, and remain in ward till he be duly delivered : And because there have been divers Manslanghters, Felonies, and Robberies done in Times past... It is accorded that if any may have any evil suspicion of such, be it by day or by night, they shall be ... arrested by the Constable of the Towne" (Ribton-Turner, Charles James, "A history of vagrants and vagrancy, and beggars and begging"; Publisher: Montclair, N.J., Patterson Smith; 1887).

 

The plague of 1394 increased the need to control vagrancy, as well as the migration of laborers from the Lord of the place to which they were bound to work.

 

The Constable at common law thus had the power to arrest for misdemeanors committed in his presence, to arrest felons, and to arrest vagrants who were about in the nighttime (strangers who were "up to no good").  In connection with this latter power, a constable could arrest a person "not from around here" and take him before the magistrate, who would place the person under oath and require that he give his name and address and other identifying information.  This led to the power to stop any person about in the night-time and detain them for an "investigatory stop" in order to demand their name and address.  It became a crime to lie about one's identification under such circumstances, and that arose out of the requirement that the information be given under oath.

 

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The defendant's lack of identification did not justify his detention. A person may not be detained and required to identify himself. Brown v. Texas, 443 U.S. 47, 53 (1979). Nor may he be punished for refusing to identify himself. Id. A person may refuse to answer questions from the police, Kolender v. Lawson, 461 U.S. 352, 365 (Brennan, J., concurring) (1963); and his refusal is not indicative of the commission of a crime. United States v. Welker, 689 F.2d 167, 169 (10th Cir. 1982).

 

Commonwealth v. Holloway, 9 Va. App. 11, 16, 384 S.E.2d 99, ___ (1989)

 

 

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    § 18.2-133. Refusal of person on land, etc., of another to identify himself. — Any person who goes on the lands, waters, ponds, boats or blinds of another to hunt, fish, or trap and willfully refuses to identify himself when requested by the landowner or his agent so to do shall be deemed guilty of a Class 4 misdemeanor. (Code 1950, § 29-165.1; 1954, c. 156; 1962, c. 469; 1975, cc. 14, 15.)

 

Virginia Code § 18.2-133

 

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    § 18.2-136. Right of certain hunters to go on lands of another; carrying firearms or bows and arrows prohibited. — Fox hunters and coon hunters, when the chase begins on other lands, may follow their dogs on prohibited lands, and hunters of all other game, when the chase begins on other lands, may go upon prohibited lands to retrieve their dogs, but may not carry firearms or bows and arrows on their persons or hunt any game while thereon. The use of vehicles to retrieve dogs on prohibited lands shall be allowed only with the permission of the landowner or his agent. Any person who goes on prohibited lands to retrieve his dogs pursuant to this section and who willfully refuses to identify himself when requested by the landowner or his agent to do so is guilty of a Class 4 misdemeanor. (Code 1950, § 29-168; 1964, c. 600; 1975, cc. 14, 15; 1988, c. 593; 1991, cc. 317, 327; 2007, cc. 145, 658.)

 

Virginia Code § 18.2-136

 

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AG Op. CRIMES AND OFFENSES GENERALLY: CRIMES AGAINST THE ADMINISTRATION OF JUSTICE, 2002 Va. AG 135 (02-082)

 

CRIMES AND OFFENSES GENERALLY: CRIMES AGAINST THE ADMINISTRATION OF JUSTICE.

 

Law-enforcement officer conducting lawful stop to investigate alleged criminal activity may not arrest for obstruction of justice suspect who refuses to identify himself to officer. Depending on circumstances, suspect may be detained for purpose of determining his identity.

 

The Honorable Marsha L. Garst

Commonwealth's Attorney for the City of Harrisonburg

 

October 10, 2002 [Page 136]

 

    Issues Presented

 

    You ask whether a law-enforcement officer, who is engaged in a valid investigative stop of the kind permitted by Terry v. Ohio,1 may arrest a person for obstruction of justice under § 18.2-460(A), when such person refuses to provide information concerning his identity to the officer.

 

    Response

 

    It is my opinion, under the specific facts you have presented, that a law-enforcement officer conducting a lawful investigative stop may not arrest a suspect for obstruction of justice under § 18.2-460(A), when the suspect refuses to identify himself to the officer. Depending on the circumstances, however, there may be justification to detain a suspect for the purpose of determining his identity.

 

    Background

 

    You relate a situation where a law-enforcement officer in your jurisdiction lawfully stops an unidentified individual whom the officer reasonably suspects has committed a criminal offense. The individual refuses to provide identifying information, thereby frustrating the progress of the investigation.

 

    Applicable Law and Discussion

 

    Section 18.2-460(A) provides:

 

If any person without just cause knowingly obstructs a . . . law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . . law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.

 

    In interpreting a former statute involving the obstruction of an officer performing his duty, the Supreme Court of Virginia has distinguished that which constitutes “obstruction”:

 

[T]here is a broad distinction between avoidance and resistance or obstruction.. . . “To constitute obstruction of an officer in the performance of his duty, it is not necessary that there be an actual or technical assault upon the officer, but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct action.. . . It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.”[2]

 

    Additionally, the Supreme Court held that an attempt to escape the custody of an officer by running away does not provide a basis for a conviction for obstruction under the former statute.3 [Page 137]

 

    The Court of Appeals of Virginia has held that “obstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person's conduct merely renders the officer's task more difficult but does not impede or prevent the officer from performing that task.”4 In applying § 18.2-460(A), the Court has also determined that providing inconsistent information, even if the information has the effect of frustrating the investigation, is not sufficient to warrant a conviction for obstructing justice.5 Similarly, the Court has held that providing false information is not grounds for a conviction for obstruction of justice.6

 

    If providing inconsistent information that, in effect, frustrates an investigation is not sufficient for a conviction for obstruction of justice, then it would also appear that failing to provide any information would not provide a basis for an arrest for obstructing justice.7 Such a failure to respond does not constitute the requisite “opposition or resistance by direct action.”8

 

    Virginia courts have set a high threshold for a conviction under § 18.2-460(A). Given this precedent, I am compelled to conclude that a law-enforcement officer, even when armed with reasonable suspicion that criminal activity may be occurring, may not arrest a suspect for obstruction of justice on the basis that the suspect refuses to identify himself. The officer may, of course, pursue any other lawful avenues of investigation to determine the individual's identity. Those avenues, however, depend on the facts of each individual case.9 A suspect's refusal or inability to provide his identification in some circumstances may prolong the justified period of detention. Reasonable suspicion about a suspect permits that he “be stopped in order to identify him, to question him briefly, . . . while attempting to obtain additional information.”10 If the suspect's identity is material to confirming or dispelling the suspicion that led to the detention, depending upon the circumstances, the detention may be continued for a reasonable period to establish his identity.11 Additionally, an officer may, pursuant to § 46.2-104, demand identification of a motorist he stops for a traffic violation.

 

    Conclusion

 

    Accordingly, it is my opinion, under the specific facts you have presented, that a law-enforcement officer conducting a lawful investigative stop may not arrest a suspect for obstruction of justice under § 18.2-460(A), when the suspect refuses to identify himself to the officer. Depending on the circumstances, however, there may be justification to detain a suspect for the purpose of determining his identity.

 

FOOTNOTES

 

1 392 U.S. 1 (1968). A Terry stop allows an officer to approach and briefly detain an individual that the officer has reason to suspect is engaging in criminal activity. Id. at 27-31.

 

2 Jones v. Commonwealth, 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925) (citation omitted). In Jones, the accused was charged with violating § 55-c, which provided that “[a]ny person who shall hinder or obstruct any officer of this State charged with the duty of inspecting baggage for ardent spirits . . . shall be deemed guilty of a misdemeanor.” 1918 Va. Acts ch. 388, at 578, 611.

 

3 Jones, 141 Va. at 478, 126 S.E. at 76. The accused in Jones was transporting barley, sugar, hops and yeast, and fled when stopped by the police officer, because he believed he had violated former § 55-c, which made in unlawful to “‘hinder or obstruct any officer’” charged with inspecting any [Page 138] vehicle transporting ardent spirits. Id. at 477-78, 126 S.E. at 76 (quoting 1918 Va. Acts, supra, at 611).

 

4 Ruckman v. Com., 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998).

 

5 Id. at 431, 505 S.E.2d at 390.

 

6 Dobson v. Commonwealth, No. 2802-97-2, [99 Vap UNP 2802972] 1999 Va. App. LEXIS 350, at *1 (June 15, 1999), aff'd 260 Va. 71, 531 S.E.2d 569 (2000).

 

7 A concurring opinion in Terry v. Ohio [392 U.S. 1 (1968)] notes that a person detained in a Terry stop “[i]s not obligated to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” 392 U.S. at 34 (White, J., concurring) (emphasis added). Relying on this concurrence, several courts have held that to arrest someone for failure to identify himself during a Terry stop violates the Fourth Amendment. Accord Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir. 1987); see, e.g., Timmons v. City of Montgomery, Ala., 658 F. Supp. 1086, 1092, 1093 (M.D. Ala. 1987) (vagrancy offense).

 

8 Jones, 141 Va. at 479, 126 S.E. at 77.

 

9 For example, the officer could approach others who are present and inquire about the suspect's identity, provided those individuals consent to such questioning. Additionally, if appropriate, the officer could follow the suspect home and determine who lives at that address. The options available to a police officer depend on the circumstances of each case. Accordingly, these examples are offered only to demonstrate other ways in which an officer may obtain this information if a suspect refuses to provide his identity, upon request, during a Terry stop.

 

10 Hayes v. Florida, 470 U.S. 811, 816 (1985).

 

11 See Washington v. Com., 29 Va. App. 5, 13-15, 509 S.E.2d 512, 516-17 (1999) (noting that officer could further detain person he reasonably suspected to be person named in capias, to establish his identity); see also United States v. Jones, 759 F.2d 633 (8th Cir. 1985) (holding that officers' further detention of burglary suspect who refused to identify himself did not convert investigative stop into arrest); State v. Flynn; 285 N.W.2d 710, 717-18 (Wis. 1979) (holding that police officer with reasonable suspicion could remove and search wallet of verbally abusive robbery suspect who refused to identify himself).

 

Opinion of the Attorney General 2002 Va. AG 135, 135, 02-082, ___ (2002)

 

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Brown v. Texas, 443 U.S. 47 (1979)

 

SUPREME COURT OF THE UNITED STATES

 

BROWN

v.

TEXAS.

 

APPEAL FROM THE COUNTY COURT

AT LAW NO. 2, EL PASO COUNTY, TEXAS

 

No. 77-6673.

 

Argued: February 21, 1979

Decided: June 25, 1979

 

    Two police officers, while cruising near noon in a patrol car, observed appellant and another man walking away from one another in an alley in an area with a high incidence of drug traffic. They stopped and asked appellant to identify himself and explain what he was doing. One officer testified that he stopped appellant because the situation “looked suspicious and we had never seen that subject in that area before.” The officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When appellant refused to identify himself, he was arrested for violation of a Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer “who has lawfully stopped him and requested the information.” Appellant's motion to set aside an information charging him with violation of the statute on the ground that the statute violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was convicted and fined.

 

Held: The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be “reasonable.” Cf. Terry v. Ohio, 392 U.S. 1; United States v. Brignoni-Ponce, 422 U.S. 873. The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, 440 U.S. 648. Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers' actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal [Page 48] security and privacy tilts in favor of freedom from police interference. Pp. 50-53.

 

Reversed.

 

    BURGER, C. J., delivered the opinion for a unanimous Court.

 

    Raymond C. Caballero argued the cause and filed a brief for appellant.

 

    Renea Hicks, Assistant Attorney General of Texas, argued the cause for appellee pro hac vice. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, and Ted L. Hartley, Executive Assistant Attorney General.*

 

    MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

 

    This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman's demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request.

 

I

 

    At 12:45 in the afternoon of December 9, 1977, Officers Venegas and Sotelo of the El Paso Police Department were cruising in a patrol car. They observed appellant and another man walking in opposite directions away from one another in an alley. Although the two men were a few feet apart when they first were seen, Officer Venegas later testified that both officers believed the two had been together or were about to meet until the patrol car appeared.

 

    The car entered the alley, and Officer Venegas got out and asked appellant to identify himself and explain what he was [Page 49] doing there. The other man was not questioned or detained. The officer testified that he stopped appellant because the situation “looked suspicious and we had never seen that subject in that area before.” The area of El Paso where appellant was stopped has a high incidence of drug traffic. However, the officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed.

 

    Appellant refused to identify himself and angrily asserted that the officers had no right to stop him. Officer Venegas replied that he was in a “high drug problem area”; Officer Sotelo then “frisked” appellant, but found nothing.

 

    When appellant continued to refuse to identify himself, he was arrested for violation of Tex. Penal Code Ann., Tit. 8, § 38.02 (a) (1974), which makes it a criminal act for a person to refuse to give his name and address to an officer “who has lawfully stopped him and requested the information.”1 Following the arrest the officers searched appellant; nothing untoward was found.

 

    While being taken to the El Paso County Jail appellant identified himself. Nonetheless, he was held in custody and charged with violating § 38.02 (a). When he was booked he was routinely searched a third time. Appellant was convicted in the El Paso Municipal Court and fined $20 plus court costs for violation of § 38.02. He then exercised his right under Texas law to a trial de novo in the El Paso County Court. There, he moved to set aside the information on the ground that § 38.02 (a) of the Texas Penal Code violated the First, Fourth, and Fifth Amendments and was unconstitutionally vague in violation of the Fourteenth Amendment. The [Page 50] motion was denied. Appellant waived a jury, and the court convicted him and imposed a fine of $45 plus court costs.

 

    Under Texas law an appeal from an inferior court to a county court is subject to further review only if a fine exceeding $100 is imposed. Tex. Code Crim. Proc. Ann., Art. 4.03 (Vernon 1977). Accordingly, the County Court's rejection of appellant's constitutional claims was a decision “by the highest court of a State in which a decision could be had.” 28 U.S.C. § 1257(2). On appeal here we noted probable jurisdiction. 439 U.S. 909 (1978). We reverse.

 

II

 

    When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers “lawfully stopped” appellant. See Tex. Penal Code Ann., Tit. 8, § 38.02 (1974). The Fourth Amendment, of course, “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). ‘[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,' id., at 16, and the Fourth Amendment requires that the seizure be `reasonable.'” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

 

    The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U.S. 200, 209-210 (1979); Terry v. Ohio, 392 U.S. 1, 20 (1968), depends “on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a [Page 51] weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e.g., 422 U.S., at 878-883.

 

    A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U.S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562 (1976).

 

    The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a “reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed.” We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have “probable cause” to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881. See Terry v. Ohio, supra, at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663; United States v. Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New Jersey, 306 U.S. 451 (1939).

 

    The flaw in the State's case is that none of the circumstances [Page 52] preceding the officers' detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Venegas testified at appellant's trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion.2 There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.

 

    In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661. [Page 53]

 

    The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.3 Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is

 

Reversed.

 

APPENDIX TO OPINION OF THE COURT

 

    “THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn't want to talk to you, you put him in jail for committing a crime.

 

    “MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant's statement in his motion that the First Amendment gives an individual the right to silence.

 

    “THE COURT: . . . I'm asking you why should the State put you in jail because you don't want to say anything.

 

    “MR. PATTON: Well, I think there's certain interests that have to be viewed.

 

    “THE COURT: Okay, I'd like you to tell me what those are.

 

    “MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual's interests in [Page 54] this respect, as far as simply asking an individual for his name and address under the proper circumstances.

 

    “THE COURT: But why should it be a crime to not answer?

 

    “MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt.

 

    “THE COURT: What does it disrupt?

 

    “MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes.

 

    “THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?

 

    “MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it's presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual's name and address, and to determine what exactly is going on.

 

    “THE COURT: I'm not questioning, I'm not asking whether the officer shouldn't ask questions. I'm sure they should ask everything they possibly could find out. What I'm asking is what's the State's interest in putting a man in jail because he doesn't want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn't have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don't confess, you can't put them in jail, can you, for refusing to confess to a crime?” App. 15-17 (emphasis added).

 

FOOTNOTES

 

* Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Karl Phaler, Deputy Attorney General, filed a brief for the State of California as amicus curiae.

 

1 The entire section reads as follows: “§ 38.02. Failure to Identify as Witness “(a) A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information.”

 

2 This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-885 (1975); Christensen v. United States, 104 U.S. App. D.C. 35, 36, 259 F.2d 192, 193 (1958).

 

3 We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements. See Dunaway v. New York, 442 U.S. 200, 210 n. 12 (1979); Terry v. Ohio, 392 U.S. 1, 34 (1968) (WHITE, J., concurring). The County Court Judge who convicted appellant was troubled by this question, as shown by the colloquy set out in the Appendix to this opinion.

 

Brown v. Texas, 443 U.S. 47, 47-48 (1979)

 

=====

 

 

 

    The Court's decision last Term in Brown v. Texas, 443 U.S. 47, on which the respondent relies, is not apposite. It could not have been plainer under the circumstances there presented that Brown was forcibly detained by the officers. In that case, two police officers approached Brown in an alley, and asked him to identify himself and to explain his reason for being there. Brown “refused to identify himself and angrily asserted that the officers had no right to stop him,” id., at 49. Up to this point there was no seizure. But after continuing to protest the officers' power to interrogate him, Brown was first frisked, and then arrested for violation of a state statute making it a criminal offense for a person to refuse to give his name and address to an officer “who has lawfully stopped him and requested the information.” The Court simply held in that case that because the officers had no reason to suspect Brown of wrongdoing, there was no basis for detaining him, and therefore no permissible foundation for applying the state statute in the circumstances there presented. Id., at 52-53.

 

United States v. Mendenhall, 446 U.S. 544, 556 (1980)

 

=====

 

 

 

    Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute's Model Penal Code. See ALI, Model Penal Code § 250.6, Comment 4, pp. 392-393 (1980). The provision, originally designated § 250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” § 250.12 (Tent. Draft No. 13) (1961). In some States, a suspect's refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.

 

    Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, § 2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself . . . .” 2 W. Hawkins, Pleas of the Crown, ch. 13, § 6, p. 130 (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. [Page 184] In Papachristou v. Jacksonville, 405 U.S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id., at 167-171.

 

    The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U.S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U.S. 352 (1983). The California law in Kolender required a suspect to give an officer “‘credible and reliable’” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in “‘virtually unrestrained power to arrest and charge persons with a violation.’” Ibid. (quoting Lewis v. New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring in result)).

 

    The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender. Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” [Page 185] identification. In contrast, the Nevada Supreme Court has interpreted NRS § 171.123(3) to require only that a suspect disclose his name. See 118 Nev., at 875, 59 P.3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver's license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means — a choice, we assume, that the suspect may make — the statute is satisfied and no violation occurs. See id., at 876-877, 59 P.3d, at 1206-1207.

 

 

Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 183-184 (2004)

 

=====

 

 

 

 

 

    In order to justify a brief seizure or Terry stop, an officer must have a “reasonable and articulable suspicion of criminal activity on the part of the defendant.” Commonwealth v. Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101 (1989). An officer who develops such suspicion may stop a person “in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information” to confirm or dispel his suspicions. Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).

 

    However, “a police request made in a public place for a person to produce some identification, by itself, generally does not constitute a Fourth Amendment seizure.” McCain v. Commonwealth, 261 Va. 483, 491, 545 S.E.2d 541, 546 (2001). Even when a police officer retains an individual's identification long enough to conduct a check for outstanding warrants, this retention does not convert the encounter into a seizure unless additional circumstances exist indicating “a reasonable person would believe that he was not free to leave the scene of [the] encounter with the police.” Id. at 488-91, 545 S.E.2d at 544-45.

 

Knox v. Commonwealth, 02 Vap UNP 0988011 (2002)

 

 

=====

 

 

The defendant's lack of identification did not justify his detention. A person may not be detained and required to identify himself. Brown v. Texas, 443 U.S. 47, 53 (1979). Nor may he be punished for refusing to identify himself. Id. A person may refuse to answer questions from the police, Kolender v. Lawson, 461 U.S. 352, 365 (Brennan, J., concurring) (1963); and his refusal is not indicative of the commission of a crime. United States v. Welker, 689 F.2d 167, 169 (10th Cir. 1982). Commonwealth v. Holloway, 9 Va. App. 11, 16, 384 S.E.2d 99, ___ (1989)

 

=====

 

 Certain factors have been explicitly held not to justify a detention. In particular, a defendant's lack of identification does not justify his detention. Commonwealth v. Holloway, 9 Va. App. 11, 16 (1989) (citation omitted) (“A person may not be detained and required to identify himself. Nor may he be punished for refusing to identify himself.”) Similarly, a person may refuse to answer questions from the police and his refusal is not indicative of the commission of a crime. Id.

 

Commonwealth v. Woolsey, 19 Cir. K104506 (2004)

 

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MUNICIPAL ORDINANCES:

 -----

 

    County and municipal ordinances must be consistent with the laws of the Commonwealth.10 Such ordinances are inconsistent with state law when they cannot coexist with a statute.11 “[A] local government may ‘not forbid what the legislature has expressly licensed, authorized, or required.’”12 While a local legislative body, in the exercise of its police powers, may have the authority to forbid an act where state law is silent on the subject, it cannot limit or forbid activities that expressly are sanctioned by the General Assembly.13 Thus, if an entity operates in compliance with state law, a Virginia locality cannot impose a criminal liability on that entity. Likewise, a locality may not prohibit or limit the authority of state or federal agencies to carry out their duties as prescribed by law.

 

Opinion of the Attorney General 2008 Va. AG 37, 40, 08-072, ___ (2008)

 

-----

 

    Under the Dillon Rule of strict construction, municipal corporations possess and may exercise only those powers expressly granted by the General Assembly, powers necessarily or fairly implied from such express powers, and those powers that are essential and indispensable.4 Section 15.2-1102 confers general police powers on cities and towns which are not:

 

expressly prohibited by the Constitution and the general laws of the Commonwealth, and which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof[.]

 

Opinion of the Attorney General 2008 Va. AG 62, 63, 08-076, ___ (2008)

 

-----

 

 § 15.2-1200. General powers of counties. — Any county may adopt such measures as it deems expedient to secure and promote the health, safety and general welfare of its inhabitants which are not inconsistent with the general laws of the Commonwealth. Such power shall include, but shall not be limited to, the adoption of quarantine regulations affecting both persons and animals, the adoption of necessary regulations to prevent the spread of contagious diseases among persons or animals and the adoption of regulations for the prevention of the pollution of water which is dangerous to the health or lives of persons residing in the county.

 

-----

 

    § 15.2-1102. General grant of power; enumeration of powers not exclusive; limitations on exercise of power. — A municipal corporation shall have and may exercise all powers which it now has or which may hereafter be conferred upon or delegated to it under the Constitution and laws of the Commonwealth and all other powers pertinent to the conduct of the affairs and functions of the municipal government, the exercise of which is not expressly prohibited by the Constitution and the general laws of the Commonwealth, and which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof, and the enumeration of specific powers shall not be construed or held to be exclusive or as a limitation upon any general grant of power, but shall be construed and held to be in addition to any general grant of power. The exercise of the powers conferred under this section is specifically limited to the area within the corporate limits of the municipality, unless otherwise conferred in the applicable sections of the Constitution and general laws, as amended, of the Commonwealth.

 

 

-----

 

Our resolution of the second issue determines the outcome of this case. The General Assembly has granted certain powers to county boards of supervisors.2 The broadest of these powers is a general police power. Code § 15.2-1200. In accordance with that power, a county, through its board of supervisors, “may adopt such measures as it deems expedient to secure and promote the health, safety and general welfare of its inhabitants which are not inconsistent with the general laws of the Commonwealth.” Id. Not all powers given to boards of supervisors, however, are legislative in nature; some are supervisory or administrative. Under Code § 15.2-1409, for example, boards of supervisors “may make such investigations relating to its government affairs as it deems necessary.” And, pursuant to Code [Page 155] § 15.2-1230, they “may require monthly financial reports from any officer or office of the county.”

 

Isle of Wight County v. Nogiec, 281 Va. 140, 154-155, 704 S.E.2d 83, ___ (2011)

 

-----

 

We disagree and hold that the ordinance involves a legitimate exercise of delegable state police powers.

 

    Under Code § 15.2-1200, a county may “adopt such measures as it deems expedient to secure and promote the health, safety and general welfare of its inhabitants which are not inconsistent with the general laws of the Commonwealth.”15 This delegation of police powers includes the power to regulate nude and semi-nude dancing. See Wayside Rest., Inc., 215 Va. at 233, 208 S.E.2d at 53 (finding power implicit in county's power to prohibit “conduct which the local governing body reasonably deems to be contrary to the morals, health, safety and general welfare of the community”); see, e.g., Erie, 529 U.S. at 296 (“Erie's efforts to protect public health and safety are clearly within the city's police powers.”); Barnes, 501 U.S. at 569 (recognizing that “the traditional police powers of the States,” defined as “the authority to provide for the public health, safety, and morals,” provides a legitimate basis for public indecency statutes).

 

    We also reject appellants' assertion that the Henrico public nudity ordinance, while an otherwise valid expression of the general police power, should be invalidated because it goes further than state laws proscribing obscenity and indecent exposure. See Code §§ 18.2-375, 18.2-387. “The mere fact that the state, in the exercise of the police power, has made certain regulations, does not prohibit a municipality from exacting additional requirements.” Wayside Rest., Inc., 215 Va. at 234, 208 S.E.2d at 53 (quoting King v. Arlington County, 195 Va. 1084, 1090, 81 S.E.2d 587, 591 (1954)). This remains true as long as the locality “does not attempt to authorize by the ordinance what the legislature has forbidden [Page 525] or forbid what the legislature has expressly licensed, authorized, or required.” Id. at 234, 208 S.E.2d at 54.

 

Boyd v. County of Henrico, 42 Va. App. 495, 524-525, 592 S.E.2d 768, ___ (2004)

 

-----

 

 The decisions of the Supreme Court of Virginia interpreting the police power of a locality clearly explain that § 15.2-1200 and analogous legislative acts constituting a general grant of the police power of the Commonwealth are not a complete grant of the police power of the Commonwealth to the localities.17 Rather, many decisions apply the Dillon Rule of strict construction to the authority of local governments, thereby requiring that certain activities undertaken, or regulations imposed, by local governments have express enabling legislation or are necessarily implied from enabling legislation.18 One commentator describes the general limitations on the exercise of the police power under a general grant as follows:

 

[T]he ordinance must have a clear, reasonable and substantial relation to the public health, safety, morals, or welfare, and must be reasonably appropriate for the police power objective sought to be obtained.[19]

 

    The Supreme Court of Virginia has held that a local government may, in the exercise of its general police power: (1) require a municipal permit for the purchase of handguns;20 (2) regulate smoking in public areas;21 (3) regulate topless dancing;22 (4) regulate the operation of massage salons;23 (5) regulate the use of “common towels”;24 (6) prohibit the conduct of lotteries and numbers games;25 (7) restrict the keeping of vicious dogs;26 and, (8) regulate or prohibit the operation of pool rooms.27 A 1984 opinion of this Office interpreting the scope of a county's police power under § 15.1-510, predecessor to § 15.2-1200, concludes that this statute authorizes the [Page 57] regulation of a broad range of activities that may reasonably be found to be adverse to the public health, safety, or welfare in particular sets of circumstances.28 The regulation of waste disposal activities and waste disposal sites has generally been approved as an appropriate exercise of a locality's police power.

 

29 Opinion of the Attorney General 2005 Va. AG 54, 56-57, 05-011, ___ (2005)

 

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    On appeal, Jones seeks reversal of both his convictions. He says that the convictions depend for their validity upon § 17-13(c) of the Arlington County Code, that the code provision is unconstitutional and, hence, that the convictions are erroneous.

 

    Section 17-13 of the Arlington County Code is entitled “Loitering — Peace and good order.” Subsection (c) provides:

 

It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

 

    Jones argues that § 17-13(c) is unconstitutional because it is “[v]iolative of Fourth Amendment Rights.” The code section “allows police to stop citizens without any reasonable suspicion that the individual is involved in criminal activity,” Jones asserts, and “does not require the police officer to have even an articulable suspicion that the individual detained is involved in, has committed, or is about to commit a crime.” Jones concludes that, because it was unlawful for the police to detain and question him, his arrest for violating § 17-13(c) was also unlawful and, because the heroin [Page 18] was the fruit of the unlawful arrest, the evidence concerning the drug should have been suppressed.1

 

    [1-2] We disagree with Jones. As the Attorney General points out, § 17-13(c) does not purport to authorize a police officer to stop and question an individual on the street. Rather, as the Attorney General indicates further, criminal liability for failure to furnish identification under § 17-13(c) arises only when some independent basis justifies the detention and questioning of an individual in the first place, for example, “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). Jones v. Commonwealth, 230 Va. 14, 17-18, 334 S.E.2d 536, ___ (1985)

 

=====

 

 



Case notes: the Castle Doctrine in Virginia


http://virginialegaldefense.com/Stuff/Documents/castledoctrineexcerpts.html


Virginia Legal Defense

P.O. Box 100, Broad Run, Virginia 20137;
Voice: (540) 347-2430; Fax: (540) 347-9772;

Castle Doctrine case excerpts:

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-- Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-196 (K. B. 1603)

-- Va. Const. Article 1, Section 10: "General warrants of search or seizure prohibited." That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

-- Hudson v. Michigan, 547 U.S. 586, 594 (2006)

-- "Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was “but an affirmance of the common law.” 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (O. Ruffhead ed. 1769)" Footnote 2, Wilson v. Arkansas, 514 U.S. 927, 937 (1995).

-- 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!' -- The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: 'Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man's house was his castle, he said.'

=====

[ref footnote #3, which states, “[T]he house of every one is to him as his castle and fortress.” Semayne's Case 5 Co. Re. 91a at 92; 77 ER 194 at 195 (Sir Edward Coke, 1604).]

Tate v. Rice, 227 Va. 341, 348, 315 S.E.2d 385, ___ (1984)

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[3] The common law of England continues in full force within the Commonwealth and is the rule of decision, “except as altered by the General Assembly.” Code § 1-10. In order to abrogate the common law, the General Assembly's intent to do so must be [Page 283] plainly manifested. Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864 (1992).

[4] Under the common law, it was unlawful for a sheriff to break the doors of a person's house to arrest that person in a civil suit in debt or trespass. “Such action invades the precious interest of privacy summed up in the ancient adage that a man's house is his castle.” Miller v. United States, 357 U.S. 301, 307 (1958). This venerable principle underlies the whole law dealing with the right to break and enter a dwelling house for civil recovery of property. Vanden Bogert v. May, 55 N.W.2d 115, 117 (Mich. 1952).

Williams v. Matthews, 248 Va. 277, 282-283, 448 S.E.2d 625, ___ (1994)

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“Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like — cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, ‘a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life’ * * .”

Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, ___ (1922)

=====

I do not think its adjudications thus far have destroyed the time-honored maxim that a man's home is his castle, nor any of its cherished implications.

Hall v. Commonwealth, 188 Va. 72, 87, 49 S.E.2d 369, ___ (1948)

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"... The use of deadly force to prevent threatened harm to property is never justified except in defense of habitation; ..." [ref footnote #2, which states, "The use of deadly force,in defense of “property” can also be justifiable, but the classic formulation lists only arson or burglary as crimes against property which can justify the use of deadly force. . . . Even then the use of deadly force must have been necessary.

Defense of habitation and justifiable self-defense overlap in the “castle doctrine” which states that one may, without retreating, use force, to include deadly force if necessary, to keep aggressors out of his own house. This part of the castle doctrine is one aspect of defense of habitation. . . . [T]he justification exists in the curtilage as well as the castle.

Roger D. Groot, Criminal Offenses and Defenses in Virginia 114 (3rd ed. 1994). The defense of habitation and the castle doctrine have not been raised in this case."]

Alexander v. Commonwealth, 28 Va. App. 771, 780, 508 S.E.2d 912(1999)

=====

" Finding an attached garage a portion of the dwelling comports with the purpose underlying the burglary statutes of protecting the sanctity of the home. Compton, 190 Va. at 55, 55 S.E.2d at 449. Since the burglary statutes aim to protect a person's place of habitation and an attached garage is structurally and functionally part of the habitation, the burglary statutes naturally protect the garage. See Rash v. Commonwealth, 9 Va. App. 22, 25, 383 S.E.2d 749, 751 (1989) (noting [Page 44] that “[t]he theoretical basis of common law burglary was the ancient notion that a man's home was his castle and that he had the right to feel safe therein”). As just another room of the dwelling, an attached garage receives the same protection as every other room."

Lacey v. Commonwealth, 54 Va. App. 32, 43-44, 675 S.E.2d 846, ___ (2009)

=====

(2) In 1949, our Supreme Court observed:

Burglary was, at common law, primarily an offense against the security of the habitation, and that is still the general conception of it. A difference is recognized between the crime of wrongfully entering in the night a house where people live and the crime of entering a house where chickens roost.

Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949). The theoretical basis of common law burglary was the ancient notion that a man's home was his castle and that he had the right to feel safe therein. This was especially true at night, when he was most vulnerable because he was asleep. 3 Wharton's Criminal Law § 326 (1972); 13 Am. Jur. 2d Burglary § 2 (1969). Thus, at common law, “dwelling house” was interpreted to mean any structure which human beings regularly used for sleeping. 3 Wharton's Criminal Law, supra, § 335.

Rash v. Commonwealth, 9 Va. App. 22, 25, 383 S.E.2d 749, ___ (1989)

=====

Code § 18.2-89 provides, inter alia, that, “[i]f any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or any larceny therein, he shall be guilty of burglary . . . ,” “an offense identical to common law burglary, save that the element of intent is expanded to include intent to commit a larceny.” Rash v. Commonwealth, 9 Va. App. 22, 24, 383 S.E.2d 749, 750 (1989). The dual elements, “dwelling house” and “of another,” “were essential because common-law burglary found its theoretical basis in the protection of man's right of habitation,” 2 Wayne R. LaFave, Substantive Criminal Law § 8.13(c) (1986), an embodiment of “the ancient notion that a man's home was his castle and . . . he had the right to feel safe therein.” Rash, 9 Va. App. at 25, 383 S.E.2d at 751; see Clark v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874). Thus, “the term ‘dwelling house’ in Code § 18.2-89 means a place which human beings regularly use for sleeping[,]” and the crime was, “‘at common law, primarily an offense against the security of [another's] habitation, and that is still the general conception of it.’” Rash, 9 Va. App. at 26, 25, 383 S.E.2d at 751 (citation omitted).

Code §§ 18.2-90 and 18.2-911 expand traditional burglary to include entry without breaking in the nighttime or by [Page 93] breaking in the daytime of any dwelling house and “any automobile, truck or trailer, if such . . . is used as a dwelling or place of human habitation, with intent to commit murder . . . ,” Code § 18.2-90, “or . . . assault and battery . . . [.]” Code § 18.2-91; see Johnson v. Commonwealth, 18 Va. App. 441, 445, 444 S.E.2d 559, 561-62 (1994).2 In enacting Code §§ 18.2-90 and -91, the legislature, therefore, modified the common law to safeguard both conventional dwelling houses and other specified structures, “used as a dwelling or place of human habitation,” from unlawful invasion. Allard v. Commonwealth, 24 Va. App. 57, 64, 480 S.E.2d 139, 142 (1997); see Graybeal v. Commonwealth, 228 Va. 736, 739, 324 S.E.2d 698, 699-700 (1985).

Defendant contends that the right of habitation protected by both the common law and related burglary statutes is subordinate to title or ownership interests. He asserts that

the crime first offends the security of the property owner and, therefore, reasons that “a person cannot break and enter a structure in which he has a proprietary interest.” Defendant's argument, however, discounts the sanctity of habitation, upending the gravamen of the offense, a view that has been rejected by jurisdictions throughout the country.

...

Here, wife and daughter enjoyed sole occupancy of the trailer home following the separation of defendant and wife a year prior to the offenses, with defendant continuously residing elsewhere. As a result of subsequent criminal conduct against wife, defendant had been ordered by the J&D;court [Page 95] to have no contact with her, a restriction that clearly precluded his habitation of the trailer. Thereafter, wife changed the locks in an effort to further keep husband from the premises. Defendant's return, which resulted in the instant prosecutions, was for criminal purposes, and was attended by violence and forceful entry into the residence. Under such circumstances, defendant's proprietary interest was relegated to wife's superior possessory interest and right to exclusive habitation. Thus, defendant's acts in breaking and entering the home, accompanied by the requisite unlawful intent, offended wife's right of habitation and constituted burglary in violation of Code §§ 18.2-90 and -91, notwithstanding his joint ownership of the property.

Turner v. Commonwealth, 33 Va. App. 88, 92-95, 531 S.E.2d 619, ___ (2000)

=====

Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-196 (K. B. 1603)

=====

To begin with, the text of the Fourth Amendment speaks to the people's interest in “their” homes. It traces its origins to the ancient maxim: “A man's home is his castle.” And, while early English cases protect a defendant in his own dwelling, they do not extend to protect “any person who flies to his house.” Semayne's Case, (1605) 77 Eng. Rep. 194, 198 (K.B.); see also Johnson v. Leigh, (1815) 128 Eng. Rep. 1029, 1030 (C.P.). Rather, at common law “the house of any one [wa]s not a castle or privilege but for himself.” Semayne's Case, 77 Eng. Rep. at 198.

United States v. Gray, 491 F.3d 138, 145 (4th Cir. 2007)

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One of those interests is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. See, e.g., McDonald v. United States, 335 U.S. 451, 460-461 (1948) (Jackson, J., concurring). See also Sabbath, 391 U.S., at 589; Miller, 357 U.S., at 313, n. 12. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “‘did not know of the process, of which, if he had notice, it is to be presumed that he would obey it . . . .’” Wilson, 514 U.S., at 931-932 (quoting Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-196 (K. B. 1603)). The knock-and-announce rule gives individuals “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” Richards, 520 U.S., at 393, n. 5. See also Banks, 540 U.S., at 41. And thirdly, the knock-and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the “opportunity to prepare themselves for” the entry of the police. Richards, 520 U.S., at 393, n. 5. “The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.” Ibid. In other words, it assures the opportunity to collect oneself before answering the door.

Hudson v. Michigan, 547 U.S. 586, 594 (2006)

=====

At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a “house” or “castle” unless authorized to do so by a valid warrant. See Semayne's Case, 5 Co. Rep. 91a, 77 Eng. Rep. 194 (K. B.). Every occupant of the home has a [Page 124] right — protected by the common law for centuries and by the Fourth Amendment since 1791 — to refuse entry. When an occupant gives his or her consent to enter, he or she is waiving a valuable constitutional right. To be sure that the waiver is voluntary, it is sound practice — a practice some Justices of this Court thought necessary to make the waiver voluntary1 — for the officer to advise the occupant of that right.2 The issue in this case relates to the content of the advice that the officer should provide when met at the door by a man and a woman who are apparently joint tenants or joint owners of the property.

Georgia v. Randolph, 547 U.S. 103, 123-124 (2006)

=====

In 1604, an English court made the now-famous observation that “the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.” Semayne's Case, 5 Co. Rep. 91a, 91b, 77 [Page 610] Eng. Rep. 194, 195 (K.B.). In his Commentaries on the Laws of England, William Blackstone noted that

“the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of antient Rome. . . . For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private.” 4 Commentaries 223 (1765-1769).

Wilson v. Layne, 526 U.S. 603, 609-610 (1999)

=====

Footnote 2: This “knock and announce” principle appears to predate even Semayne's Case, which is usually cited as the judicial source of the common-law standard. Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was “but an affirmance of the common law.” 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (O. Ruffhead ed. 1769) (providing that if any person takes the beasts of another and causes them “to be driven into a Castle or Fortress,” if the sheriff makes “solem[n] deman[d]” for deliverance of the beasts, and if the person “did not cause the Beasts to be delivered incontinent,” the King “shall cause the said Castle or Fortress to be beaten down without Recovery”)).

Wilson v. Arkansas, 514 U.S. 927, 937 (1995)

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The Court's assertion that this case concerns no search “in the Fourth Amendment meaning of that term” is neither “obvious” nor “simple.” I should have thought that the Fourth Amendment governs all intrusions by agents of the public upon personal security, [Page 339] Terry v. Ohio, 392 U.S. 1, 18 n. 15 (1968). As MR. JUSTICE HARLAN has said:

“[T]he Constitution protects the privacy of the home against all unreasonable intrusion of whatever character. . . . ‘[It applies] to all invasions on the part of the government and its employees of the sanctity of a man's home,’” Poe v. Ullman, 367 U.S. 497, 550-551 (1961) (dissenting opinion).

This Court has rejected as “anomalous” the contention that only suspected criminals are protected by the Fourth Amendment, Camara v. Municipal Court, 387 U.S. 523, 530 (1967). In an era of rapidly burgeoning governmental activities and their concomitant inspectors, caseworkers, and researchers, a restriction of the Fourth Amendment to “the traditional criminal law context” tramples the ancient concept that a man's home is his castle. Only last Term, we reaffirmed that this concept has lost none of its vitality, Rowan v. United States Post Office, 397 U.S. 728, 738 (1970).

Wyman v. James, 400 U.S. 309, 338-339 (1971)

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Ker v. California, 374 U.S. 23 (1963)

SUPREME COURT OF THE UNITED STATES

KER ET UX. v. CALIFORNIA.

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT.

No. 53.

Argued: December 11, 1962 Decided: June 10, 1963

1. The prohibition of the Fourth Amendment against unreasonable searches and seizures, which forbids the Federal Government to convict a man of crime by using evidence obtained from him by unreasonable search and seizure, is enforceable against the States through the Fourteenth Amendment by the same sanction of exclusion and by the application of the same constitutional standard prohibiting “unreasonable searches and seizures,” as defined in the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643. Pp. 30-34.

(a) This Court's long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application is carried forward when that Amendment's proscriptions are enforced against the States through the Fourteenth Amendment. P. 33.

(b) The reasonableness of a search is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the “fundamental criteria” laid down by the Fourth Amendment and in the opinions of this Court applying that Amendment, as distinguished from the exercise of its supervisory powers over federal courts; but findings of reasonableness by a trial court are respected only insofar as they are consistent with federal constitutional guarantees. P. 33.

(c) The States are not precluded from developing working rules governing arrests, searches and seizures to meet “the practical demands of effective criminal investigation and law enforcement,” provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. P. 34.

2. Having reason to believe that one of the petitioners was selling marijuana and had just purchased some from a person who was known to be a dealer in marijuana, California police officers, without a search warrant, used a passkey to enter the apartment occupied [Page 24] by petitioners, husband and wife, arrested them on suspicion of violating the State Narcotic Law, searched their apartment, and found three packages of marijuana, which they seized. At petitioners' trial, these packages of marijuana were admitted in evidence over petitioners' objection, and they were convicted. In affirming the convictions, the California District Court of Appeal found that there was probable cause for the arrests; that the entry into the apartment was for the purpose of arrest and was not unlawful; and that the search, being incident to the arrests, was likewise lawful and its fruits admissible in evidence against petitioners. Held: The judgment is affirmed. Pp. 34-44.

195 Cal. App. 2d 246, 15 Cal. Rptr. 767, affirmed.

Robert W. Stanley argued the cause and filed a brief for petitioners.

Gordon Ringer, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Stanley Mosk, Attorney General, and William E. James, Assistant Attorney General.

A. L. Wirin, Fred Okrand and Paul Cooksey filed a brief for the American Civil Liberties Union of Southern California, as amicus curiae, urging reversal.

MR. JUSTICE CLARK delivered the opinion of the Court with reference to the standard by which state searches and seizures must be evaluated (Part I), together with an opinion applying that standard, in which MR. JUSTICE BLACK, MR. JUSTICE STEWART and MR. JUSTICE WHITE join (Parts II-V), and announced the judgment of the Court.

This case raises search and seizure questions under the rule of Mapp v. Ohio, 367 U.S. 643 (1961). Petitioners, husband and wife, were convicted of possession of marijuana in violation of § 11530 of the California Health and Safety Code. The California District Court of Appeal affirmed, 195 Cal. App. 2d 246, 15 Cal. Rptr. 767, despite the contention of petitioners that their arrests in their [Page 25] apartment without warrants lacked probable cause1 and the evidence seized incident thereto and introduced at their trial was therefore inadmissible. The California Supreme Court denied without opinion a petition for hearing. This being the first case arriving here since our opinion in Mapp which would afford suitable opportunity for further explication of that holding in the light of intervening experience, we granted certiorari. 368 U.S. 974. We affirm the judgment before us.

The state courts' conviction and affirmance are based on these events, which culminated in the petitioners' arrests. Sergeant Cook of the Los Angeles County Sheriff's Office, in negotiating the purchase of marijuana from one Terrhagen, accompanied him to a bowling alley about 7 p. m. on July 26, 1960, where they were to meet Terrhagen's “connection.” Terrhagen went inside and returned shortly, pointing to a 1946 DeSoto as his “connection's” automobile and explaining that they were to meet him “up by the oil fields” near Fairfax and Slauson Avenues in Los Angeles. As they neared that location, Terrhagen again pointed out the DeSoto traveling ahead of them, stating that the “connection” kept his supply of narcotics “somewhere up in the hills.” They parked near some vacant fields in the vicinity of the intersection of Fairfax and Slauson, and, shortly thereafter, the DeSoto reappeared and pulled up beside them. The deputy then recognized the driver as one Roland Murphy, whose “mug” photograph he had seen and whom he knew from other narcotics officers to be a large-scale seller of marijuana currently out on bail in connection with narcotics charges. [Page 26]

Terrhagen entered the DeSoto and drove off toward the oil fields with Murphy, while the Sergeant waited. They returned shortly, Terrhagen left Murphy's car carrying a package of marijuana and entered his own vehicle, and they drove to Terrhagen's residence. There Terrhagen cut one pound of marijuana and gave it to Sergeant Cook, who had previously paid him. The Sergeant later reported this occurrence to Los Angeles County Officers Berman and Warthen, the latter of whom had observed the occurrences as well.

On the following day, July 27, Murphy was placed under surveillance. Officer Warthen, who had observed the Terrhagen-Murphy episode the previous night, and Officer Markman were assigned this duty. At about 7 p. m. that evening they followed Murphy's DeSoto as he drove to the same bowling alley in which he had met Terrhagen on the previous evening. Murphy went inside, emerged in about 10 minutes and drove to a house where he made a brief visit. The officers continued to follow him but, upon losing sight of his vehicle, proceeded to the vicinity of Fairfax and Slauson Avenues where they parked. There, immediately across the street from the location at which Terrhagen and Sergeant Cook had met Murphy on the previous evening, the officers observed a parked automobile whose lone occupant they later determined to be the petitioner George Douglas Ker.

The officers then saw Murphy drive past them. They followed him but lost sight of him when he extinguished his lights and entered the oil fields. The officers returned to their vantage point and, shortly thereafter, observed Murphy return and park behind Ker. From their location approximately 1,000 feet from the two vehicles, they watched through field glasses. Murphy was seen leaving his DeSoto and walking up to the driver's side of Ker's car, where he “appeared to have conversation with him.” It was shortly before 9 p. m. and the distance in the [Page 27] twilight was too great for the officers to see anything pass between Murphy and Ker or whether the former had anything in his hands as he approached.

While Murphy and Ker were talking, the officers had driven past them in order to see their faces closely and in order to take the license number from Ker's vehicle. Soon thereafter Ker drove away and the officers followed him but lost him when he made a U-turn in the middle of the block and drove in the opposite direction. Now, having lost contact with Ker, they checked the registration with the Department of Motor Vehicles and ascertained that the automobile was registered to Douglas Ker at 4801 Slauson. They then communicated this information to Officer Berman, within 15 to 30 minutes after observing the meeting between Ker and Murphy. Though officers Warthen and Markman had no previous knowledge of Ker, Berman had received information at various times beginning in November of 1959 that Ker was selling marijuana from his apartment and that “he was possibly securing this Marijuana from Ronnie Murphy who is the alias of Roland Murphy.” In early 1960 Officer Berman had received a “mug” photograph of Ker from the Inglewood Police Department. He further testified that between May and July 27, 1960, he had received information as to Ker from one Robert Black, who had previously given information leading to at least three arrests and whose information was believed by Berman to be reliable. According to Officer Berman, Black had told him on four or five occasions after May 1960 that Ker and others, including himself, had purchased marijuana from Murphy.2 [Page 28]

Armed with the knowledge of the meeting between Ker and Murphy and with Berman's information as to Ker's dealings with Murphy, the three officers and a fourth, Officer Love, proceeded immediately to the address which they had obtained through Ker's license number. They found the automobile which they had been following — and which they had learned was Ker's — in the parking lot of the multiple-apartment building and also ascertained that there was someone in the Kers' apartment. They then went to the office of the building manager and obtained from him a passkey to the apartment. Officer Markman was stationed outside the window to intercept any evidence which might be ejected, and the other three officers entered the apartment. Officer Berman unlocked and opened the door, proceeding quietly, he testified, in order to prevent the destruction of evidence,3 and found petitioner George Ker sitting in the living room. Just as he identified himself, stating that “We are Sheriff's Narcotics Officers, conducting a narcotics investigation,” petitioner Diane Ker emerged from the kitchen. Berman testified that he repeated his identification to her and immediately walked to the kitchen. Without entering, he observed through the open doorway a small scale atop the kitchen sink, upon which lay a “brick-like — brick-shaped package containing the green leafy substance” which he recognized as marijuana. He beckoned the petitioners into the kitchen where, following their denial of knowledge of the contents of the two-and-two-tenths-pound package and [Page 29] failure to answer a question as to its ownership, he placed them under arrest for suspicion of violating the State Narcotic Law. Officer Markman testified that he entered the apartment approximately “a minute, minute and a half” after the other officers, at which time Officer Berman was placing the petitioners under arrest. As to this sequence of events, petitioner George Ker testified that his arrest took place immediately upon the officers' entry and before they saw the brick of marijuana in the kitchen.

Subsequent to the arrest and the petitioners' denial of possession of any other narcotics, the officers, proceeding without search warrants, found a half-ounce package of marijuana in the kitchen cupboard and another atop the bedroom dresser. Petitioners were asked if they had any automobile other than the one observed by the officers, and George Ker replied in the negative, while Diane remained silent. On the next day, having learned that an automobile was registered in the name of Diane Ker, Officer Warthen searched this car without a warrant, finding marijuana and marijuana seeds in the glove compartment and under the rear seat. The marijuana found on the kitchen scale, that found in the kitchen cupboard and in the bedroom, and that found in Diane Ker's automobile4 were all introduced into evidence against the petitioners.

The California District Court of Appeal in affirming the convictions found that there was probable cause for the arrests; that the entry into the apartment was for the purpose of arrest and was not unlawful; and that the search being incident to the arrests was likewise lawful and its fruits admissible in evidence against petitioners. These conclusions were essential to the affirmance, since the California Supreme Court in 1955 had held that evidence [Page 30] obtained by means of unlawful searches and seizures was inadmissible in criminal trials. People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905. The court concluded that in view of its findings and the implied findings of the trial court, this Court's intervening decision in Mapp v. Ohio, supra, did “not justify a change in our original conclusion.” 195 Cal. App. 2d, at 257, 15 Cal. Rptr., at 773.

I.

In Mapp v. Ohio, at 646-647, 657, we followed Boyd v. United States, 116 U.S. 616, 630 (1886), which held that the Fourth Amendment,5 implemented by the self-incrimination clause of the Fifth,6 forbids the Federal Government to convict a man of crime by using testimony or papers obtained from him by unreasonable searches and seizures as defined in the Fourth Amendment. We specifically held in Mapp that this constitutional prohibition is enforceable against the States through the Fourteenth Amendment.7 This means, as we said in Mapp, that the Fourth Amendment “is enforceable against them [the states] by the same sanction of exclusion as is used against the Federal Government,” by the application of the same constitutional standard prohibiting “unreasonable [Page 31] searches and seizures.” 367 U.S., at 655. We now face the specific question as to whether Mapp requires the exclusion of evidence in this case which the California District Court of Appeal has held to be lawfully seized. It is perhaps ironic that the initial test under the Mapp holding comes from California, whose decision voluntarily to adopt the exclusionary rule in 1955 has been commended by us previously. See Mapp v. Ohio, supra, at 651-652; Elkins v. United States, 364 U.S. 206, 220 (1960).

Preliminary to our examination of the search and seizures involved here, it might be helpful for us to indicate what was not decided in Mapp. First, it must be recognized that the “principles governing the admissibility of evidence in federal criminal trials have not been restricted . . . to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts . . . this Court has . . . formulated rules of evidence to be applied in federal criminal prosecutions.” McNabb v. United States, 318 U.S. 332, 341 (1943); cf. Miller v. United States, 357 U.S. 301 (1958); Nardone v. United States, 302 U.S. 379 (1937). Mapp, however, established no assumption by this Court of supervisory authority over state courts, cf. Cleary v. Bolger, 371 U.S. 392, 401 (1963), and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, supra, at 221, that “a healthy federalism depends upon the avoidance of needless conflict between state and federal courts” by itself urging that “[f]ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.” 367 U.S., at 658. (Emphasis added.) Second, Mapp did not attempt the impossible task of laying [Page 32] down a “fixed formula” for the application in specific cases of the constitutional prohibition against unreasonable searches and seizures; it recognized that we would be “met with ‘recurring questions of the reasonableness of searches’” and that, “at any rate, ‘[r]easonableness is in the first instance for the [trial court] . . . to determine,’” id., at 653, thus indicating that the usual weight be given to findings of trial courts.

Mapp, of course, did not lend itself to a detailed explication of standards, since the search involved there was clearly unreasonable and bore no stamp of legality even from the Ohio Supreme Court. Id., at 643-645. This is true also of Elkins v. United States, where all of the courts assumed the unreasonableness of the search in question and this Court “invoked” its “supervisory power over the administration of criminal justice in the federal courts,” 364 U.S., at 216, in declaring that the evidence so seized by state officers was inadmissible in a federal prosecution. The prosecution being in a federal court, this Court of course announced that “[t]he test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Id., at 224. Significant in the Elkins holding is the statement, apposite here, that “it can fairly be said that in applying the Fourth Amendment this Court has seldom shown itself unaware of the practical demands of effective criminal investigation and law enforcement.” Id., at 222.

Implicit in the Fourth Amendment's protection from unreasonable searches and seizures is its recognition of individual freedom. That safeguard has been declared to be “as of the very essence of constitutional liberty” the guaranty of which “is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen . . . .” Gouled v. United States, 255 U.S. 298, 304 (1921); cf. Powell v. Alabama, 287 U.S. 45, [Page 33] 65-68 (1932). While the language of the Amendment is “general,” it “forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made . . . .” Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931). Mr. Justice Butler there stated for the Court that “[t]he Amendment is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted.” Ibid. He also recognized that “[t]here is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.” Ibid.; see United States v. Rabinowitz, 339 U.S. 56, 63 (1950); Rios v. United States, 364 U.S. 253, 255 (1960).

This Court's long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application is carried forward when that Amendment's proscriptions are enforced against the States through the Fourteenth Amendment. And, although the standard of reasonableness is the same under the Fourth and Fourteenth Amendments, the demands of our federal system compel us to distinguish between evidence held inadmissible because of our supervisory powers over federal courts and that held inadmissible because prohibited by the United States Constitution. We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the “fundamental criteria” laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. As we have stated above and in other cases involving [Page 34] federal constitutional rights, findings of state courts are by no means insulated against examination here. See, e.g., Spano v. New York, 360 U.S. 315, 316 (1959); Thomas v. Arizona, 356 U.S. 390, 393 (1958); Pierre v. Louisiana, 306 U.S. 354, 358 (1939). While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental — i.e., constitutional — criteria established by this Court have been respected. The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet “the practical demands of effective criminal investigation and law enforcement” in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. See Jones v. United States, 362 U.S. 257 (1960). Such a standard implies no derogation of uniformity in applying federal constitutional guarantees but is only a recognition that conditions and circumstances vary just as do investigative and enforcement techniques.

Applying this federal constitutional standard we proceed to examine the entire record including the findings of California's courts to determine whether the evidence seized from petitioners was constitutionally admissible under the circumstances of this case.

II.

The evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon [Page 35] probable cause, which exists “where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-176 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162 (1925); accord, People v. Fischer, 49 Cal. 2d 442, 317 P.2d 967 (1957); Bompensiero v. Superior Court, 44 Cal. 2d 178, 281 P.2d 250 (1955). The information within the knowledge of the officers at the time they arrived at the Kers' apartment, as California's courts specifically found, clearly furnished grounds for a reasonable belief that petitioner George Ker had committed and was committing the offense of possession of marijuana. Officers Markman and Warthen observed a rendezvous between Murphy and Ker on the evening of the arrest which was a virtual reenactment of the previous night's encounter between Murphy, Terrhagen and Sergeant Cook, which concluded in the sale by Murphy to Terrhagen and the Sergeant of a package of marijuana of which the latter had paid Terrhagen for one pound which he received from Terrhagen after the encounter with Murphy. To be sure, the distance and lack of light prevented the officers from seeing and they did not see any substance pass between the two men, but the virtual identity of the surrounding circumstances warranted a strong suspicion that the one remaining element — a sale of narcotics — was a part of this encounter as it was the previous night. But Ker's arrest does not depend upon this single episode with Murphy. When Ker's U-turn thwarted the officer's pursuit, they learned his name and address from the Department of Motor Vehicles and reported the occurrence to Officer Berman. Berman, in turn, revealed information from an informer whose reliability had been tested previously, as [Page 36] well as from other sources, not only that Ker had been selling marijuana from his apartment but also that his likely source of supply was Murphy himself. That this information was hearsay does not destroy its role in establishing probable cause. Brinegar v. United States, supra. In Draper v. United States, 358 U.S. 307 (1959), we held that information from a reliable informer, corroborated by the agents' observations as to the accuracy of the informer's description of the accused and of his presence at a particular place, was sufficient to establish probable cause for an arrest without warrant.8 The corroborative elements in Draper were innocuous in themselves, but here both the informer's tip and the personal observations connected Ker with specific illegal activities involving the same man, Murphy, a known marijuana dealer. To say that this coincidence of information was sufficient to support a reasonable belief of the officers that Ker was illegally in possession of marijuana is to indulge in understatement.

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in [Page 37] a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers' belief that she was in joint possession with her husband, that fact was accompanied by the officers' information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at the time of her arrest there were not sufficient grounds for a reasonable belief that Diane Ker, as well as her husband, was committing the offense of possession of marijuana in the presence of the officers.

III.

It is contended that the lawfulness of the petitioners' arrests, even if they were based upon probable cause, was vitiated by the method of entry. This Court, in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. Miller v. United States, supra; United States v. Di Re, 332 U.S. 581 (1948); Johnson v. United States, 333 U.S. 10, 15, n. 5 (1948). A fortiori, the lawfulness of these arrests by state officers for state offenses is to be determined by California law. California Penal Code, § 844,9 permits peace officers to break into a dwelling place for the purpose of arrest after demanding admittance and explaining their purpose. Admittedly the officers did not comply with the terms of this statute since they entered quietly and without announcement, in order to prevent the destruction of contraband. The California District Court of Appeal, [Page 38] however, held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal. App. 2d 630, 304 P.2d 175 (1956); People v. Maddox, 46 Cal. 2d 301, 294 P.2d 6, cert. denied, 352 U.S. 858 (1956), and that the noncompliance was therefore lawful.

Since the petitioners' federal constitutional protection from unreasonable searches and seizures by police officers is here to be determined by whether the search was incident to a lawful arrest, we are warranted in examining that arrest to determine whether, notwithstanding its legality under state law, the method of entering the home may offend federal constitutional standards of reasonableness and therefore vitiate the legality of an accompanying search. We find no such offensiveness on the facts here. Assuming that the officers' entry by use of a key obtained from the manager is the legal equivalent of a “breaking,” see Keiningham v. United States, 109 U.S. App. D.C. 272, 276, 287 F.2d 126, 130 (C. A. D.C. Cir. 1960), it has been recognized from the early common law that such breaking is permissible in executing an arrest under certain circumstances. See Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 798, 800-806 (1924). Indeed, 18 U.S.C. § 3109,10 dealing with the execution of search warrants by federal officers, authorizes breaking of doors in words very similar to those of the California statute, both statutes including a requirement of notice of authority and purpose. In Miller v. United States, supra, this Court held unlawful an arrest, and therefore its accompanying search, on the ground that the District of [Page 39] Columbia officers before entering a dwelling did not fully satisfy the requirement of disclosing their identity and purpose. The Court stated that “the lawfulness of the arrest without warrant is to be determined by reference to state law. . . . By like reasoning the validity of the arrest of petitioner is to be determined by reference to the law of the District of Columbia.” 357 U.S., at 305-306. The parties there conceded and the Court accepted that the criteria for testing the arrest under District of Columbia law were “substantially identical” to the requirements of § 3109. Id., at 306. Here, however, the criteria under California law clearly include an exception to the notice requirement where exigent circumstances are present. Moreover, insofar as violation of a federal statute required the exclusion of evidence in Miller, the case is inapposite for state prosecutions, where admissibility is governed by constitutional standards. Finally, the basis of the judicial exception to the California statute, as expressed by Justice Traynor in People v. Maddox, 46 Cal. 2d, at 306, 294 P.2d, at 9, effectively answers the petitioners' contention:

“It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation requirements [Page 40] of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (Read v. Case, 4 Conn. 166, 170 [10 Am. Dec. 110]; see Rest., Torts, § 206, com. d.) Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.”

No such exigent circumstances as would authorize non-compliance with the California statute were argued in Miller, and the Court expressly refrained from discussing the question, citing the Maddox case without disapproval. 357 U.S., at 309.11 Here justification for the officers' failure to give notice is uniquely present. In addition to the officers' belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.12 We therefore hold that in the particular [Page 41] circumstances of this case the officers' method of entry, sanctioned by the law of California, was not unreasonable under the standards of the Fourth Amendment as applied to the States through the Fourteenth Amendment.

IV.

Having held the petitioners' arrests lawful, it remains only to consider whether the search which produced the evidence leading to their convictions was lawful as incident to those arrests. The doctrine that a search without warrant may be lawfully conducted if incident to a lawful arrest has long been recognized as consistent with the Fourth Amendment's protection against unreasonable searches and seizures. See Marron v. United States, 275 U.S. 192 (1927); Harris v. United States, 331 U.S. 145 (1947); Abel v. United States, 362 U.S. 217 (1960); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Cal. L. Rev. 474, 490-493 (1961). The cases have imposed no requirement that the arrest be under authority of an arrest warrant, but only that it be lawful. See Marron v. United States, supra, at 198-199; United States v. Rabinowitz, supra, at 61; cf. Agnello v. United States, 269 U.S. 20, 30-31 (1925). The question remains whether the officers' action here exceeded the recognized bounds of an incidental search.

Petitioners contend that the search was unreasonable in that the officers could practicably have obtained a search warrant. The practicability of obtaining a warrant is not the controlling factor when a search is sought to be justified as incident to arrest, United States v. Rabinowitz, [Page 42] supra; but we need not rest the validity of the search here on Rabinowitz, since we agree with the California court that time clearly was of the essence. The officers' observations and their corroboration, which furnished probable cause for George Ker's arrest, occurred at about 9 p. m., approximately one hour before the time of arrest. The officers had reason to act quickly because of Ker's furtive conduct and the likelihood that the marijuana would be distributed or hidden before a warrant could be obtained at that time of night.13 Thus the facts bear no resemblance to those in Trupiano v. United States, 334 U.S. 699 (1948), where federal agents for three weeks had been in possession of knowledge sufficient to secure a search warrant.

The search of the petitioners' apartment was well within the limits upheld in Harris v. United States, supra, which also concerned a private apartment dwelling. The evidence here, unlike that in Harris, was the instrumentality of the very crime for which petitioners were arrested, and the record does not indicate that the search here was as extensive in time or in area as that upheld in Harris.

The petitioners' only remaining contention is that the discovery of the brick of marijuana cannot be justified as incidental to arrest since it preceded the arrest. This contention is of course contrary to George Ker's testimony, but we reject it in any event. While an arrest may not be used merely as the pretext for a search without warrant, the California court specifically found and the record supports both that the officers entered the apartment for [Page 43] the purpose of arresting George Ker and that they had probable cause to make that arrest prior to the entry.14 We cannot say that it was unreasonable for Officer Berman, upon seeing Diane Ker emerge from the kitchen, merely to walk to the doorway of that adjacent room. We thus agree with the California court's holding that the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. United States v. Lee, 274 U.S. 559 (1927); United States v. Lefkowitz, 285 U.S. 452, 465 (1932); People v. West, 144 Cal. App. 2d 214, 300 P.2d 729 (1956). Therefore, while California law does not require that an arrest precede an incidental search as long as probable cause exists at the outset, Willson v. Superior Court, 46 Cal. 2d 291, 294 P.2d 36 (1956), the California court did not rely on that rule and we need not reach the question of its status under the Federal Constitution.

V.

The petitioners state and the record bears out that the officers searched Diane Ker's automobile on the day subsequent to her arrest. The reasonableness of that search, however, was not raised in the petition for certiorari, nor was it discussed in the brief here. Ordinarily “[w]e do not reach for constitutional questions not raised by the parties,” Mazer v. Stein, 347 U.S. 201, 206, n. 5 (1954), nor extend our review beyond those specific federal questions [Page 44] properly raised in the state court. The record gives no indication that the issue was raised in the trial court or in the District Court of Appeal, the latter court did not adjudicate it and we therefore find no reason to reach it on the record.15

For these reasons the judgment of the California District Court of Appeal is

Affirmed.

FOOTNOTES

1 This contention was initially raised prior to the trial. Section 995, California Penal Code, provides for a motion to set aside the information on the ground that the defendant has been committed without probable cause. Evidence on that issue was presented out of the presence of the jury, and, following the court's denial of the motion, the petitioners were tried and convicted by the jury.

2 During the hearing on the § 995 motion, see note 1, supra, Black testified for the defense, admitting that he knew the petitioners but denying that he gave Officer Berman information about George Ker. Black first denied but then admitted that he had met with Officer Berman and another officer in whose presence Berman said the information about Ker was given.

3 Arresting Officers Berman and Warthen had been attached to the narcotics detail of the Los Angeles County Sheriff's office for three and four years, respectively. Each had participated in hundreds of arrests involving marijuana. Warthen testified that on “many, many occasions” in his experience with narcotics arrests “persons have flushed narcotics down toilets, pushed them down drains and sinks and many other methods of getting rid of them prior to my entrance . . . .”

4 For the reasons discussed in § V of this opinion, we find that the validity of the search of the automobile is not before us and we therefore do not pass on it.

5 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

6 “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

7 Our holding as to enforceability of this federal constitutional rule against the States had its source in the following declaration in Wolf v. Colorado, 338 U.S. 25, 27-28 (1949):

“The security of one's privacy against arbitrary instrusion by the police — which is at the core of the Fourth Amendment — is . . . implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause.”

8 In Draper the arrest upon probable cause was authorized under 26 U.S.C. § 7607, authorizing narcotics agents to make an arrest without warrant if they have “reasonable grounds to believe that the person to be arrested has committed or is committing such violation.” Under § 836, California Penal Code, an officer may arrest without a warrant if he has “reasonable cause to believe that the person to be arrested has committed a felony . . . .”

9 “To make an arrest, . . . in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which . . . [he has] reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.”

10 “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

11 Nor has the Court rejected the proposition that noncompliance may be reasonable in exigent circumstances subsequent to Miller. In Wong Sun v. United States, 371 U.S. 471 (1963), the Court held that federal officers had not complied with § 3109 in executing an arrest. There the Court noted that in Miller it had reserved the question of an exception in exigent circumstances and stated that “[h]ere, as in Miller, the Government claims no extraordinary circumstances — such as the imminent destruction of vital evidence, or the need to rescue a victim in peril — . . . which excused the officer's failure truthfully to state his mission before he broke in.” Id., at 483-484.

12 A search of the record with the aid of hindsight may lend some support to the conclusion that, contra the reasonable belief of the officers, petitioners may not have been prepared for an imminent visit from the police. It goes without saying that in determining the lawfulness of entry and the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry. Johnson v. United States, 333 U.S. 10, 17 (1948). As the Court said in United States v. Di Re, 332 U.S. 581, 595 (1948), “a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from” what is dug up subsequently. (Emphasis added.)

13 In cases in which a search could not be regarded as incident to arrest because the petitioner was not present at the time of the entry and search, the absence of compelling circumstances, such as the threat of destruction of evidence, supported the Court's holding that searches without warrants were unconstitutional. See Chapman v. United States, 365 U.S. 610, 615 (1961); United States v. Jeffers, 342 U.S. 48, 52 (1951); Taylor v. United States, 286 U.S. 1, 5 (1932).

14 Compare Johnson v. United States, note 12, supra, at 40. There the Court held that a search could not be justified as incident to arrest since the officers, prior to their entry into a hotel room, had no probable cause for the arrest of the occupant. The Court stated that “[a]n officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion.” Here, of course, probable cause for the arrest of petitioner George Ker provided that valid basis.

15 The record shows that petitioners made no objection to the admission of any of the evidence, thus failing to observe a state procedural requirement, People v. Brittain, 149 Cal. App. 2d 201, 308 P.2d 38 (1957); see Mapp v. Ohio, supra, at 659, n. 9. However, the District Court of Appeal passed on the issue of the narcotics seized in the apartment, presumably on the ground that petitioners preserved that question by their motion under § 995, California Penal Code, which was directed toward the principal objection to that search — the alleged lack of probable cause. While “[t]here can be no question as to the proper presentation of a federal claim when the highest state court passes on it,” Raley v. Ohio, 360 U.S. 423, 436 (1959), there is no indication in the court's opinion that it passed on the issue of the search of the automobile, nor is there any indication in the petitioners' briefs in that court that the issue was presented.

MR. JUSTICE HARLAN, concurring in the result.

Heretofore there has been a well-established line of demarcation between the constitutional principles governing the standards for state searches and seizures and those controlling federal activity of this kind. Federal searches and seizures have been subject to the requirement of “reasonableness” contained in the Fourth Amendment, as that requirement has been elaborated over the years in federal litigation. State searches and seizures, on the other hand, have been judged, and in my view properly so, by the more flexible concept of “fundamental” fairness, of rights “basic to a free society,” embraced in the Due Process Clause of the Fourteenth Amendment. [Page 45] See Wolf v. Colorado, 38 U.S. 25, 27;* cf. Rochin v. California, 342 U.S. 165; Palko v. Connecticut, 302 U.S. 319. Today this distinction in constitutional principle is abandoned. Henceforth state searches and seizures are to be judged by the same constitutional standards as apply in the federal system.

In my opinion this further extension of federal power over state criminal cases, cf. Fay v. Noia, 372 U.S. 391; Douglas v. California, 372 U.S. 353; Draper v. Washington, 372 U.S. 487 — all decided only a few weeks ago, is quite uncalled for and unwise. It is uncalled for because the States generally, and more particularly California, are increasingly evidencing concern about improving their own criminal procedures, as this Court itself has recently observed on more than one occasion (see Gideon v. Wainwright, 372 U.S. 335, 345; ante, p. 31), and because the Fourteenth Amendment's requirements of fundamental fairness stand as a bulwark against serious local shortcomings in this field. The rule is unwise because the States, with their differing law enforcement problems, should not be put in a constitutional strait jacket, and also because the States, more likely than not, will be placed in an atmosphere of uncertainty since this Court's decisions in the realm of search and seizure are hardly notable for their predictability. Cf. Harris v. United States, 331 U.S. 145, 175-181 (Appendix to dissenting opinion of Mr. Justice Frankfurter). (The latter point is indeed forcefully illustrated by the fact that in the first application of its new constitutional rule the majority finds itself equally divided.) And if the Court is prepared to relax Fourth Amendment standards in order to avoid unduly fettering the States, this would be in [Page 46] derogation of law enforcement standards in the federal system — unless the Fourth Amendment is to mean one thing for the States and something else for the Federal Government.

I can see no good coming from this constitutional adventure. In judging state searches and seizures I would continue to adhere to established Fourteenth Amendment concepts of fundamental fairness. So judging this case, I concur in the result.

FOOTNOTES

* Mapp v. Ohio, 367 U.S. 643, did not purport to change the standards by which state searches and seizures were to be judged; rather it held only that the “exclusionary” rule of Weeks v. United States, 232 U.S. 383, was applicable to the States.

MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR. JUSTICE GOLDBERG join.

I join Part I of MR. JUSTICE CLARK'S opinion and the holding therein that “as we said in Mapp. . . the Fourth Amendment ‘is enforceable against . . . [the States] by the same sanction of exclusion as is used against the Federal Government,’ by the application of the same constitutional standard prohibiting ‘unreasonable searches and seizures.’” Only our Brother HARLAN dissents from that holding; he would judge state searches and seizures “by the more flexible concept of ‘fundamental’ fairness, of rights ‘basic to a free society,’ embraced in the Due Process Clause of the Fourteenth Amendment.”

However, MR. JUSTICE CLARK, MR. JUSTICE BLACK, MR. JUSTICE STEWART and MR. JUSTICE WHITE do not believe that the federal requirement of reasonableness contained in the Fourth Amendment was violated in this case. THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE GOLDBERG and I have the contrary view. For even on the premise that there was probable cause by federal standards for the arrest of George Ker, the arrests of these petitioners were nevertheless illegal, because the unannounced intrusion of the arresting officers into their apartment violated the Fourth Amendment. Since the [Page 47] arrests were illegal, Mapp v. Ohio, 367 U.S. 643, requires the exclusion of the evidence which was the product of the search incident to those arrests.

Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers' authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.

I.

It was firmly established long before the adoption of the Bill of Rights that the fundamental liberty of the individual includes protection against unannounced police entries.

“[T]he Fourth Amendment did but embody a principle of English liberty, a principle old, yet newly won, that finds another expression in the maxim ‘every man's home is his castle.’”

Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361, 365 (1921); Frank v. Maryland, 359 U.S. 360, 376-382 (dissenting opinion). As early as Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (1603), it was declared that

“[i]n all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors. . . .”

(Emphasis supplied.) Over a century later the leading commentators upon the English criminal law affirmed the continuing vitality of [Page 48] that principle. 1 Hale, Pleas of the Crown (1736), 583; see also 2 Hawkins, Pleas of the Crown (6th ed. 1787), c. 14, § 1; Foster, Crown Law (1762), 320-321.1 Perhaps its most emphatic confirmation was supplied only 35 years before the ratification of the Bill of Rights. In Curtis' Case, Fost. 135, 168 Eng. Rep. 67, decided in 1756, the defendant, on trial for the murder of a Crown officer who was attempting an entry to serve an arrest warrant, pleaded that because the officer had failed adequately to announce himself and his mission before breaking the doors, forceful resistance to his entry was justified and the killing was therefore justifiable homicide. In recognizing the defense the court repeated the principle that

“peace-officers, having a legal warrant to arrest for a breach of the peace, may break open doors, after having demanded admittance and given due notice of their warrant”;

the court continued that “no precise form of words is required in a case of this kind” because “[i]t is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority . . . .” Fost., at 136-137, 168 Eng. Rep., at 68. (Emphasis supplied.) The principle was again confirmed not long after the Fourth Amendment became part of our Constitution. Abbott, C. J., said in Launock v. Brown, 2 B. & Ald. 592, 593-594, 106 Eng. Rep. 482, 483 (1819):

“. . . I am clearly of opinion that, in the case of a misdemeanour, such previous demand is requisite . . . . It is reasonable that the law should be so; for if no [Page 49] previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost.”2

The protections of individual freedom carried into the Fourth Amendment, Boyd v. United States, 116 U.S. 616, 630, undoubtedly included this firmly established requirement of an announcement by police officers of purpose and authority before breaking into an individual's home. The requirement is no mere procedural nicety or formality attendant upon the service of a warrant. Decisions in both the federal and state courts have recognized, as did the English courts, that the requirement is of the essence of the substantive protections which safeguard individual liberty.3 The Court of Appeals for the District of Columbia Circuit has said:

“. . . there is no division of opinion among the learned authors . . . that even where an officer may [Page 50] have power to break open a door without a warrant, he cannot lawfully do so unless he first notifies the occupants as to the purpose of his demand for entry.” Accarino v. United States, 85 U.S. App. D.C. 394, 400, 179 F.2d 456, 462.

Similarly, the Supreme Judicial Court of Massachusetts declared in 1852:

“The maxim of law that every man's house is his castle . . . has not the effect to restrain an officer of the law from breaking and entering a dwelling-house for the purpose of serving a criminal process upon the occupant. In such case the house of the party is no sanctuary for him, and the same may be forcibly entered by such officer after a proper notification of the purpose of the entry, and a demand upon the inmates to open the house, and a refusal by them to do so.” Barnard v. Bartlett, 10 Cush. (Mass.) 501, 502-503; cf. State v. Smith, 1 N. H. 346.

Courts of the frontier States also enforced the requirement. For example, Tennessee's high court recognized that a police officer might break into a home to serve an arrest warrant only “after demand for admittance and notice of his purpose,” McCaslin v. McCord, 116 Tenn. 690, 708, 94 S.W. 79, 83; cf. Hawkins v. Commonwealth, 53 Ky. 395. Indeed, a majority of the States have enacted the requirement in statutes substantially similar to California Penal Code § 844 and the federal statute, 18 U.S.C. § 3109.4 [Page 51]

Moreover, in addition to carrying forward the protections already afforded by English law, the Framers also meant by the Fourth Amendment to eliminate once and for all the odious practice of searches under general warrants and writs of assistance against which English law had generally left them helpless. The colonial experience under the writs was unmistakably “fresh in the memories of those who achieved our independence and established our form of government.”5 Boyd v. United States, supra, at 625. The problem of entry under a general warrant was not, of course, exactly that of unannounced intrusion to arrest with a warrant or upon probable cause, but the two practices clearly invited common abuses. One of the grounds of James Otis' eloquent indictment of the writs bears repetition here:

“Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well [Page 52] guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way: and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient.” Tudor, Life of James Otis (1823), 66-67.

Similar, if not the same, dangers to individual liberty are involved in unannounced intrusions of the police into the homes of citizens. Indeed in two respects such intrusions are even more offensive to the sanctity and privacy of the home. In the first place service of the general warrants and writs of assistance was usually preceded at least by some form of notice or demand for admission. In the second place the writs of assistance by their very terms might be served only during daylight hours.6 By significant contrast, the unannounced entry of the Ker apartment occurred after dark, and such timing appears to be common police practice, at least in California.7 [Page 53]

It is much too late in the day to deny that a lawful entry is as essential to vindication of the protections of the Fourth Amendment as, for example, probable cause to arrest or a search warrant for a search not incidental to an arrest. This Court settled in Gouled v. United States, 255 U.S. 298, 305-306, that a lawful entry is the indispensable predicate of a reasonable search. We held there that a search would violate the Fourth Amendment if the entry were illegal whether accomplished “by force or by an illegal threat or show of force” or “obtained by stealth instead of by force or coercion.” Similarly, rigid restrictions upon unannounced entries are essential if the Fourth Amendment's prohibition against invasion of the security and privacy of the home is to have any meaning.

It is true, of course, that the only decision of this Court which forbids federal officers to arrest and search after an unannounced entry, Miller v. United States, 357 U.S. 301, did not rest upon constitutional doctrine but rather upon an exercise of this Court's supervisory powers. But that disposition in no way implied that the same result was not compelled by the Fourth Amendment. Miller is simply an instance of the usual practice of the Court not to decide constitutional questions when a nonconstitutional basis for decision is available. See International Assn. of Machinists v. Street, 367 U.S. 740, 749-750. The result there drew upon analogy to a federal statute, similar in its terms to § 844, with which the federal officers concededly had not complied in entering to make an arrest. Nothing we said in Miller so much as intimated that, without such a basis for decision, the Fourth Amendment would not have required the same result. The implication, indeed, is quite to the contrary. For the history adduced in Miller in support of the nonconstitutional ground persuasively demonstrates that the Fourth Amendment's protections include the security of the householder against unannounced invasions by the police. [Page 54]

II.

The command of the Fourth Amendment reflects the lesson of history that “the breaking an outer door is, in general, so violent, obnoxious and dangerous a proceeding, that it should be adopted only in extreme cases, where an immediate arrest is requisite.” 1 Burn, Justice of the Peace (28th ed. 1837), 275-276.

I have found no English decision which clearly recognizes any exception to the requirement that the police first give notice of their authority and purpose before forcibly entering a home. Exceptions were early sanctioned in American cases, e.g., Read v. Case, 4 Conn. 166, but these were rigidly and narrowly confined to situations not within the reason and spirit of the general requirement. Specifically, exceptional circumstances have been thought to exist only when, as one element, the facts surrounding the particular entry support a finding that those within actually knew or must have known of the officer's presence and purpose to seek admission. Cf. Miller v. United States, supra, at 311-313. For example, the earliest exception seems to have been that “[i]n the case of an escape after arrest, the officer, on fresh pursuit of the offender to a house in which he takes refuge, may break the doors to recapture him, in the case of felony, without a warrant, and without notice or demand for admission to the house of the offender.”8 Wilgus, Arrest Without a [Page 55] Warrant, 22 Mich. L. Rev. 541, 798, 804 (1924). The rationale of such an exception is clear, and serves to underscore the consistency and the purpose of the general requirement of notice: Where such circumstances as an escape and hot pursuit by the arresting officer leave no doubt that the fleeing felon is aware of the officer's presence and purpose, pausing at the threshold to make the ordinarily requisite announcement and demand would be a superfluous act which the law does not require.9 But no exceptions have heretofore permitted unannounced entries in the absence of such awareness on the part of the occupants — unless possibly where the officers are justified in the belief that someone within is in immediate danger of bodily harm.

Two reasons rooted in the Constitution clearly compel the courts to refuse to recognize exceptions in other situations [Page 56] when there is no showing that those within were or had been made aware of the officers' presence. The first is that any exception not requiring a showing of such awareness necessarily implies a rejection of the inviolable presumption of innocence. The excuse for failing to knock or announce the officer's mission where the occupants are oblivious to his presence can only be an almost automatic assumption that the suspect within will resist the officer's attempt to enter peacefully, or will frustrate the arrest by an attempt to escape, or will attempt to destroy whatever possibly incriminating evidence he may have. Such assumptions do obvious violence to the presumption of innocence. Indeed, the violence is compounded by another assumption, also necessarily involved, that a suspect to whom the officer first makes known his presence will further violate the law. It need hardly be said that not every suspect is in fact guilty of the offense of which he is suspected, and that not everyone who is in fact guilty will forcibly resist arrest or attempt to escape or destroy evidence.10 [Page 57]

The second reason is that in the absence of a showing of awareness by the occupants of the officers' presence and purpose, “loud noises” or “running” within would amount, ordinarily, at least, only to ambiguous conduct. Our decisions in related contexts have held that ambiguous conduct cannot form the basis for a belief of the officers that an escape or the destruction of evidence is being attempted. Wong Sun v. United States, 371 U.S. 471, 483-484; Miller v. United States, supra, at 311.

Beyond these constitutional considerations, practical hazards of law enforcement militate strongly against any relaxation of the requirement of awareness. First, cases of mistaken identity are surely not novel in the investigation of crime. The possibility is very real that the police may be misinformed as to the name or address of a suspect, or as to other material information. That possibility is itself a good reason for holding a tight rein against judicial approval of unannounced police entries into private homes. Innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion.11 Second, the requirement [Page 58] of awareness also serves to minimize the hazards of the officers' dangerous calling. We expressly recognized in Miller v. United States, supra, at 313, n. 12, that compliance with the federal notice statute “is also a safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder.”12 Indeed, one of the principal objectives of the English requirement of announcement of authority and purpose was to protect the arresting officers from being shot as trespassers, “. . . for if no previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost.” Launock v. Brown, 2 B. & Ald. 592, 594, 106 Eng. Rep. 482, 483 (1819).

These compelling considerations underlie the constitutional barrier against recognition of exceptions not predicated on knowledge or awareness of the officers' presence. State and federal officers have the common obligation to respect this basic constitutional limitation upon their police activities. I reject the contention that the courts, in enforcing such respect on the part of all officers, state or federal, create serious obstacles to effective law enforcement. Federal officers have operated for five years under [Page 59] the Miller rule with no discernible impairment of their ability to make effective arrests and obtain important narcotics convictions. Even if it were true that state and city police are generally less experienced or less resourceful than their federal counterparts (and the experience of the very police force involved in this case, under California's general exclusionary rule adopted judicially in 1955, goes very far toward refuting any such suggestion,13 see Elkins v. United States, 364 U.S. 206, 220-221), the Fourth Amendment's protections against unlawful search and seizure do not contract or expand depending upon the relative experience and resourcefulness of different groups of law-enforcement officers. When we declared in Mapp that, because the rights of the Fourth Amendment were of no lesser dignity than those of the other liberties of the Bill of Rights absorbed in the Fourteenth, “. . . we can no longer permit . . . [them] to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend [their] . . . enjoyment,” 367 U.S., at 660 — I thought by these words we had laid to rest the very problems of constitutional dissonance which I fear the present case so soon revives.14 [Page 60]

III.

I turn now to my reasons for believing that the arrests of these petitioners were illegal. My Brother CLARK apparently recognizes that the element of the Kers' prior awareness of the officers' presence was essential, or at least highly relevant, to the validity of the officers' unannounced entry into the Ker apartment, for he says, “Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.” (Emphasis supplied.) But the test under the “fresh pursuit” exception which my Brother CLARK apparently seeks to invoke depends not, of course, upon mere conjecture whether those within “might well have been” expecting the police, but upon whether there is evidence which shows that the occupants were in fact aware that the police were about to visit them. That the Kers were wholly oblivious to the officers' presence is the only possible inference on the uncontradicted facts; the “fresh pursuit” exception is therefore clearly unavailable. When the officers let themselves in with the passkey, “proceeding quietly,” as my Brother CLARK says, George Ker was sitting in his living room reading a newspaper, and his wife was busy in the kitchen. The marijuana, moreover, was in full view on the top of the kitchen sink. More convincing evidence of the complete unawareness of an imminent police visit can hardly be imagined. Indeed, even the conjecture that the Kers “might well have been expecting the police” has no support in the record. That conjecture is made to rest entirely upon the unexplained U-turn made by Ker's car when the officers lost him after the rendezvous at the oil fields. But surely the U-turn must be disregarded as wholly ambiguous conduct; there is absolutely no proof that the driver of the Ker car knew that the officers were [Page 61] following it. Cf. Miller v. United States, supra, at 311; Wong Sun v. United States, supra, at 483-484.

My Brother CLARK invokes chiefly, however, the exception allowing an unannounced entry when officers have reason to believe that someone within is attempting to destroy evidence. But the minimal conditions for the application of that exception are not present in this case. On the uncontradicted record, not only were the Kers completely unaware of the officers' presence, but, again on the uncontradicted record, there was absolutely no activity within the apartment to justify the officers in the belief that anyone within was attempting to destroy evidence. Plainly enough, the Kers left the marijuana in full view on top of the sink because they were wholly oblivious that the police were on their trail. My Brother CLARK recognizes that there is no evidence whatever of activity in the apartment, and is thus forced to find the requisite support for this element of the exception in the officers' testimony that, in their experience in the investigation of narcotics violations, other narcotics suspects had responded to police announcements by attempting to destroy evidence. Clearly such a basis for the exception fails to meet the requirements of the Fourth Amendment; if police experience in pursuing other narcotics suspects justified an unannounced police intrusion into a home, the Fourth Amendment would afford no protection at all.

The recognition of exceptions to great principles always creates, of course, the hazard that the exceptions will devour the rule. If mere police experience that some offenders have attempted to destroy contraband justifies unannounced entry in any case, and cures the total absence of evidence not only of awareness of the officers' presence but even of such an attempt in the particular case, I perceive no logical basis for distinguishing unannounced police entries into homes to make [Page 62] arrests for any crime involving evidence of a kind which police experience indicates might be quickly destroyed or jettisoned. Moreover, if such experience, without more, completely excuses the failure of arresting officers before entry, at any hour of the day or night, either to announce their purpose at the threshold or to ascertain that the occupant already knows of their presence, then there is likewise no logical ground for distinguishing between the stealthy manner in which the entry in this case was effected, and the more violent manner usually associated with totalitarian police of breaking down the door or smashing the lock.15

My Brother CLARK correctly states that only when state law “is not violative of the Federal Constitution” may we defer to state law in gauging the validity of an arrest under the Fourth Amendment. Since the California [Page 63] law of arrest here called in question patently violates the Fourth Amendment, that law cannot constitutionally provide the basis for affirming these convictions. This is not a case of conflicting testimony pro and con the existence of the elements requisite for finding a basis for the application of the exception. I agree that we should ordinarily be constrained to accept the state fact-finder's resolution of such factual conflicts. Here, however, the facts are uncontradicted: the Kers were completely oblivious of the presence of the officers and were engaged in no activity of any kind indicating that they were attempting to destroy narcotics. Our duty then is only to decide whether the officers' testimony — that in their general experience narcotics suspects destroy evidence when forewarned of the officers' presence — satisfies the constitutional test for application of the exception. Manifestly we should hold that such testimony does not satisfy the constitutional test. The subjective judgment of the police officers cannot constitutionally be a substitute for what has always been considered a necessarily objective inquiry,16 namely, whether circumstances exist in the particular case which allow an unannounced police entry.17 [Page 64]

We have no occasion here to decide how many of the situations in which, by the exercise of our supervisory power over the conduct of federal officers, we would exclude evidence, are also situations which would require the exclusion of evidence from state criminal proceedings under the constitutional principles extended to the States by Mapp. But where the conduct effecting an arrest so clearly transgresses those rights guaranteed by the Fourth Amendment as does the conduct which brought about the arrest of these petitioners, we would surely reverse the judgment if this were a federal prosecution involving federal officers. Since our decision in Mapp has made the guarantees of the Fourteenth Amendment coextensive with those of the Fourth we should pronounce precisely the same judgment upon the conduct of these state officers.

FOOTNOTES

1 Hale's view was representative: “A man, that arrests upon suspicion of felony, may break open doors, if the party refuse upon demand to open them . . . .” 1 Hale, Pleas of the Crown (1736), 583. See generally Miller v. United States, 357 U.S. 301, 306-310; Accarino v. United States, 85 U.S. App. D.C. 394, 398-402, 179 F.2d 456, 460-464; Thomas, The Execution of Warrants of Arrest, [1962] Crim. L. Rev. 520, 597, 601-604.

2 Compare also the statement of Bayley, J., in Burdett v. Abbot, 14 East. 1, 162-163, 104 Eng. Rep. 501, 563 (1811):

“Now in every breach of the peace the public are considered as interested, and the execution of process against the offender is the assertion of a public right: and in all such cases, I apprehend that the officer has a right to break open the outer door, provided there is a request of admission first made for the purpose, and a denial of the parties who are within.”

See also Ratcliffe v. Burton, 3 Bos. & Pul. 223, 127 Eng. Rep. 123 (1802); Kerbey v. Denby, 1 M. & W. 336, 150 Eng. Rep. 463 (1836); cf. Park v. Evans, Hob. 62, 80 Eng. Rep. 211; Penton v. Brown, 1 Keble 698, 83 Eng. Rep. 1193; Percival v. Stamp. 9 Ex. 167, 156 Eng. Rep. 71 (1853).

3 See generally Gatewood v. United States, 93 U.S. App. D.C. 226,229, 209 F.2d 789, 791; 1 Bishop, New Criminal Procedure (2d ed. 1913), § 201: 1 Varon, Searches, Seizures and Immunities (1961), 399-401; Day and Berkman, Search and Seizure and the Exclusionary Rule: A Re-Examination in the Wake of Mapp v. Ohio, 13 West. Res. L. Rev. 56, 79-80 (1961).

4 Ala. Code, Tit. 15, § 155; Ariz. Rev. Stat. Ann. § 13-1411; Deering's Cal. Penal Code § 844; Fla. Stat. Ann. § 901.19 (1); Idaho Code § 19-611; Burns' Ind. Ann. Stat. § 9-1009; Iowa Code Ann. § 755.9; Kan. Gen. Stat. § 62-1819; Ky. Rev. Stat. § 70.078; Dart's La. Crim. Code, Art. 72; Mich. Stat. Ann. § 28.880; Minn. Stat. Ann. § 629.34; Miss. Code § 2471; Mo. Rev. Stat. § 544.200; Mont. Rev. Code § 94-6011; Neb. Rev. Stat. § 29-411; Nev. Rev. Stat. § 171.275; McKinney's N.Y. Crim. Code § 178; N.C. Gen. Stat. § 15-44; Page's Ohio Rev. Code Ann. § 2935.15; Okla. Stat. Ann., Tit. 22, § 194; Ore. Rev. Stat. § 133.320; S. C. Code § 53-198; S. D. Code § 34.1606; Tenn. Code Ann. § 40-807; Utah Code Ann. 77-13-12; Wash. Rev. Code § 10.31.040; Wyo. Comp. Stat. § 10-309.

Compare Code of Crim. Proc., American Law Institute, Official Draft (1930), § 28:

“Right of officer to break into building. An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, as provided in section 21, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.”

5 See also Henry v. United States, 361 U.S. 98, 100-101; Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937), c. II; Barrett, Personal Rights, Property Rights, and the Fourth Amendment, 1960 Supreme Court Review 46, 70-71; Comment, Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U. of Chi. L. Rev. 664, 678-679 (1961). Compare East-India Co. v. Skinner, Comb. 342, 90 Eng. Rep. 516.

6 Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937), 54.

7 In these two respects, the practice of unannounced police entries by night is also considerably more offensive to the rights protected by the Fourth Amendment than the use of health-inspection and other administrative powers of entry, concerning the constitutionality of which this Court has divided sharply, Frank v. Maryland, supra; Ohio ex rel. Eaton v. Price, 364 U.S. 263. Since my Brother CLARK does not rely upon either of those decisions, I have no occasion to discuss further the applicability of either to the case at bar. For further consideration of problems raised by those cases, see generally, Waters, Rights of Entry in Administrative Officers, 27 U. of Chi. L. Rev. 79 (1959); Comment, State Health Inspections and “Unreasonable Search”: The Frank Exclusion of Civil Searches, 44 Minn. L. Rev. 513 (1960).

8 It is not clear whether the English law ever recognized such an exception to the requirement of notice or awareness. See, e.g., Genner v. Sparks, 6 Mod. 173, 87 Eng. Rep. 928. It is stated in an English annotator's note to Semayne's Case, supra, that “if a man being legally arrested, escapeth from the officer, and taketh shelter though in his own house, the officer may upon fresh suit break open doors in order to retake him, having first given due notice of his business and demanded admission, and been refused.” 77 Eng. Rep., at 196. The views of other commentators are ambiguous on this point. See, e.g., 2 Hawkins, Pleas of the Crown (6th ed. 1787), c. 14, § 8. Blackstone's view was that “in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue . . . [a constable] may upon probable suspicion arrest the felon; and for that purpose is authorized (as upon a justice's warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken . . . .” 4 Commentaries 292.

9 See Professor Wilgus' comment: “Before doors are broken, there must be a necessity for so doing, and notice of the authority and purpose to make the arrest must be given and a demand and refusal of admission must be made, unless this is already understood, or the peril would be increased.” Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 798, 802 (1924). (Emphasis supplied.) Cf. Accarino v. United States, 85 U.S. App. D.C. 394, 398-402, 179 F.2d 456, 460-464.

Compare Lord Mansfield's statement, in 1774, of the rationale for the requirement of announcement and demand for admission: “The ground of it is this; that otherwise the consequences would be fatal: for it would leave the family within, naked and exposed to thieves and robbers. It is much better therefore, says the law, that you should wait for another opportunity, than do an act of violence, which may probably be attended with such dangerous consequences.” Lee v. Gansel, 1 Cowp. 1, 6-7, 98 Eng. Rep. 935, 938.

10 The comment of Rooke, J., in Ratcliffe v. Burton, 3 Bos. & Pul. 223, 230, 127 Eng. Rep. 123, 127 (1802), is relevant here: “What a privilege will be allowed to sheriffs' officers if they are permitted to effect their search by violence, without making that demand which possibly will be complied with, and consequently violence be rendered unnecessary!” This view of the requirement of notice or awareness has its parallel in the historic English requirement that an arresting officer must give notice of his authority and purpose to one whom he is about to arrest. In the absence of such notice, unless the person being arrested already knew of the officer's authority and mission, he was justified in resisting by force, and might not be charged with an additional crime if injury to the officer resulted. The origin of this doctrine appears to be Mackalley's Case, 9 Co. Rep. 65b, 69a, 77 Eng. Rep. 828, 835. See also Rex v. George, [1935] 2 D. L. R. 516 (B. C. Ct. App.); Regina v. Beaudette, 118 Can. Crim. Cases 295 (Ont. Ct. App.). Compare, e.g., People v. Potter, 144 Cal. App. 2d 350, 300 P.2d 889, in which noncompliance with § 844 was excused because the defendant was known to have been convicted of three previous robberies and was suspected of a fourth — though in fact, upon entering his hotel room unannounced and by means of a key obtained from the manager, the officers found the defendant in bed, with the lights off, and unarmed. The entry occurred after midnight.

11 The importance of this consideration was aptly expressed long ago by Health, J., in Ratcliffe v. Burton, 3 Bos. & Pul. 223, 230, 127 Eng. Rep. 123, 126-127 (1802):

“The law of England, which is founded on reason, never authorises such outrageous acts as the breaking open every door and lock in a man's house without any declaration of the authority under which it is done. Such conduct must tend to create fear and dismay, and breaches of the peace by provoking resistance. This doctrine would not only be attended with great mischief to the persons against whom process is issued, but to other persons also, since it must equally hold good in cases of process upon escape, where the party has taken refuge in the house of a stranger. Shall it be said that in such case the officer may break open the outer door of a stranger's house without declaring the authority under which he acts, or making any demand of admittance? No entry from the books of pleading has been cited in support of this justification, and Semayne's case is a direct authority against it.”

12 See also McDonald v. United States, 335 U.S. 451, 460-461 (concurring opinion) for Mr. Justice Jackson's comment: “Many homeowners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot.”

13 See, e.g., Kamisar, Public Safety v. Individual Liberties: Some “Facts” and “Theories,” 53 J. Crim. L., Criminology and Police Science 171, 188-190 (1962); Rogge, Book Review, 76 Harv. L. Rev. 1516, 1522-1523 (1963).

14 Compare Justice Traynor's recent comment:

“Nevertheless the United States Supreme Court still confronts a special new responsibility of its own. Sooner or later it must establish ground rules of unreasonableness to counter whatever local pressures there might be to spare the evidence that would spoil the exclusionary rule. Its responsibility thus to exercise a restraining influence looms as a heavy one. It is no mean task to formulate farsighted constitutional standards of what is unreasonable that lend themselves readily to nation-wide application.” Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L. J. 319, 328.

15 The problems raised by this case are certainly not novel in the history of law enforcement. One of the very earliest cases in this field, decided more than three centuries ago, involved facts strikingly similar to those of the instant case. The case of Waterhouse v. Saltmarsh, Hob. 263, 80 Eng. Rep. 409, arose out of the service by a sheriff and several bailiffs of execution upon a bankrupt. These officers, having entered the outer door of the house by means not described, “‘ran up to the chamber, where the plaintiff and his wife were in bed and the doors lockt, and knocking a little, without telling what they were, or wherefore they came, brake open the door and took him . . . .’” The sheriff was fined the substantial sum of #200 — for what the court later described in a collateral proceeding as “the unnecessary outrage and terror of this arrest, and for not signifying that he was sheriff, that the door might have been opened without violence . . . .” Hob., at 264, 80 Eng. Rep., at 409. Compare another early case involving similar problems, Park v. Evans, Hob. 62, 80 Eng. Rep. 211, in which the Star Chamber held unlawful an entry effected by force after the entering officers had knocked but failed to identify their authority or purpose. The Star Chamber concluded that “the opening of the door was occasioned by them by craft, and then used to the violence, which they intended.”

16 Any doubt concerning the scope of the California test which may have survived People v. Maddox, 46 Cal. 2d 301, 294 P.2d 6, must have been removed by the later case of People v. Hammond, 54 Cal. 2d 846, 854-855, 357 P.2d 289, 294:

“When there is reasonable cause to make an arrest, and the facts known to the arresting officer before his entry are not inconsistent with a good faith belief on his part that compliance with the formal requirements of . . . section [844] is excused, a failure to comply therewith does not invalidate the search and seizure made as an incident to the ensuing arrest.”

17 I think it is unfortunate that this Court accepts the judgment of the intermediate California appellate court on a crucial question of California law — for it is by no means certain that the Supreme Court of California, the final arbiter of questions of California law, would have condoned the willingness of the District Court of Appeal to excuse noncompliance with the California statute under the facts of this case. For the view of the California Supreme Court on the scope of the exception under § 844, see, e.g., People v. Martin, 45 Cal. 2d 755, 290 P.2d 855; People v. Carswell, 51 Cal. 2d 602, 335 P.2d 99; People v. Hammond, 54 Cal. 2d 846, 357 P.2d 289.

An examination of the California decisions which have excused noncompliance with § 844 reveals the narrow scope of the exceptions heretofore recognized — confined for the most part to cases in which officers entered in response to cries of a victim apparently in imminent danger, e.g., People v. Roberts, 47 Cal. 2d 374, 303 P.2d 721; or in which they first knocked at the door, or knew they had been seen at the door, and then actually heard or observed destruction of evidence of the very crime for which they had come to arrest the occupants, see, e.g., People v. Moore, 140 Cal. App. 2d 870, 295 P.2d 969; People v. Steinberg, 148 Cal. App. 2d 855, 307 P.2d 634; People v. Williams, 175 Cal. App. 2d 774, 1 Cal. Rptr. 44; People v. Fisher, 184 Cal. App. 2d 308, 7 Cal. Rptr. 461. See generally, for summary and discussion of California cases involving various grounds for noncompliance with § 844, Fricke, California Criminal Evidence (5th ed. 1960), 432-433; Comment, Two Years With the Cahan Rule, 9 Stan. L. Rev. 515, 528-529 (1957).

Ker v. California, 374 U.S. 23(1963)

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compilation (C) 2010 Virginia Legal Defense

P.O. Box 100, Broad Run, VA 20137
101107;

traveling on trains in virginia or other public transportation.

Have you found any law or other reference making OC banned on buses, Metro trains, or cabs? I OC on VA parts of Metro often. I have never disembarked at Pentagon or Arlington. I keep the following with me, well I used to, now I don't much anymore.


METRO/WMATA[/b]

I wanted to advise you that the Washington Metropolitan Area Transit Authority (WMATA) does not have a policy on carrying of weapons on Authority property. The Metro Transit Police Department (MTPD) enforces the laws of each of the jurisdictions. However, it is in your best
interests for your own safety not to "openly" display or carry a weapon. If you have a valid Virginia State issued permit and remain on the train in the Commonwealth of Virginia, then you are complying with the law.
You can also refer to Article 7 of the state code under 18.2-308 for a better understanding. If you should have any further questions, you may contact me directly.

Lieutenant Ron Pavlik
Research and Planning Division
Fax (202) 962-2491
Office (202) 962-2176
E-Mail
rapavlik@wmata.com


 

Regular Member nova's Avatar
Join Date
Aug 2007
Location
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Posts
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Quote Originally Posted by American Traditional Citizens (ACT) View Post
Ok so I'm not a CPL holder as some of you might know... but do OC everywhere that is legal..... My question is, in Michigan is there a certain distance that I have to stay while OC by a School say 1000 feet? (that's what i've heard).... Here is the example: Family Video is on one corner of the street. Directly across the street is a middle school. Am I okay to OC in the Family Video/be in the parking lot?

ANSWER: The 1000ft deal is federal law. Having a permit issued by the state you're in exempts you from it.


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Regular Member
Join Date
Sep 2006
Location
Fairfax, Virginia, USA
Posts
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As I understand it, the original gun free school zone law (GFSZ) was tossed by the US Supreme Court on 10th amendment grounds in an opinion that stated the law exceeded the federal governments reach via the commerce clause of the US Constitution. There had been some arrests and prosecutions under this law, and they were tossed by this decision as well. Congress almost immediately re-enacted the GFSZ law with some language intended to address the court ruling, but as far as I know, there have been no arrests and no prosecutions under the current federal GFSZ law. I've heard some people opine that the current law would get tossed as well if it ever got to court. But who wants to be the test case?

You could get a concealed carry permit in MI and you'd be exempt from the federal law and the 1000 foot exclusion zone. Many states have gun free school zone laws of their own.

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Federal Gun Free School Zones Act School Zone armed 1000 feet.

The Federal Gun Free School Zone Act[47] limits where a person may legally carry a firearm. It does this by making it generally unlawful for an armed citizen to be within 1000 feet (extending out from the property lines) of a place that the individual knows, or has reasonable cause to believe, is a K-12 school. Although a State-issued carry permit may exempt a person from this restriction in the State that physically issued their permit, it does not exempt them in other States which recognize their permit under reciprocity agreements made with the issuing State. The law's failure to provide adequate protection to LEOSA qualified officers, licensed concealed carry permit holders, and other armed citizens, is an issue that the United States Congress so far has not addressed.


Gun-Free School Zones Act of 1990

From Wikipedia, the free encyclopedia

Page 1 of BATFE Letter Stating CCW Reciprocity Does Not Exempt A Permit Holder From GFSZA[1][2] [3][4]

Page 2 of BATFE Letter Stating CCW Reciprocity Does Not Exempt A Permit Holder From GFSZA[1][2][3][4]

The Gun-Free School Zones Act (GFSZA) was enacted as section 1702 of the Crime Control Act of 1990.[5]



Reciprocity Agreements Between States Do Not Qualify as GFSZA Exception

Although the Federal GFSZA does provide an exception for an individual licensed to carry a firearm,[7] this exception only applies in the State that physically issued the permit.[2][13][16][17] Forty-eight (48) States have provisions to issue concealed carry permits to citizens.[18] Most of these States also enter into reciprocity agreements with other States where each State agrees to recognize the other's concealed carry permits, just as they recognize an out-of-state driver's license.[18] Because the Federal GFSZA requires the permit be issued by the State in which the school zone is in, it is effectively impossible for a permit holder to travel outside their State of issuance to a reciprocating State without violating the Federal GFSZA.[2][13][16][17]



http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

GFSZA Prohibits Discharging Firearm in Self-Defense; Few exceptions

Although the GFSZA allows a citizen to discharge a firearm on private property,[7][16] it prohibits discharge on public property in the Gun Free Zones by anyone except on-duty law enforcement and school security.[16] A carry permit never exempts an individual from the GFSZA discharge restrictions, even in the State that physically issued it.[16]


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discharge of air guns and pneumatic guns allowed on private property: 

http://lis.virginia.gov/cgi-bin/legp604.exe?ses=111&typ=bil&val=sb757

http://leg1.state.va.us/cgi-bin/legp504.exe?111+sum+SB757

Pneumatic gun regulations.  Prohibits a locality from adopting an ordinance that prohibits the shooting of pneumatic guns on private property, with permission of the owner of the property, if reasonable care is taken to prevent a projectile from crossing the bounds of the property. The bill also invalidates any existing local ordinances that conflict with the provisions of the act.

04/06/11  House: Enacted, Chapter 832 (effective 7/1/11)

04/06/11  Governor: Acts of Assembly Chapter text (CHAP0832)


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CAN I CARRY OUTSIDE OF A COURTHOUSE BUILDING ON THE COURTHOUSE LAWN OR OTHER PORTIONS OF THE BUILDING THAT ARE NOT OFFICIALLY THE COURTHOUSE?

ANSWER: YES

Reply


18.2-283.1. Carrying weapon into courthouse.

It shall be unlawful for any person to possess in or transport into any courthouse in this Commonwealth any (i) gun or other weapon designed or intended to propel a missile or projectile of any kind, (ii) frame, receiver, muffler, silencer, missile, projectile or ammunition designed for use with a dangerous weapon and (iii) any other dangerous weapon, including explosives, stun weapons as defined in § 18.2-308.1, and those weapons specified in subsection A of § 18.2-308. Any such weapon shall be subject to seizure by a law-enforcement officer. A violation of this section is punishable as a Class 1 misdemeanor.

The provisions of this section shall not apply to any police officer, sheriff, law-enforcement agent or official, conservation police officer, conservator of the peace, magistrate, court officer, or judge while in the conduct of such person's official duties.

(1988, c. 615; 2004, c. 995; 2007, cc. 87, 519.)

But see the definition of "courthouse" by the Virginia Supreme Court:




722 BD. OF SUPERVISORS v. COM. OF ACCOUNTS, 215 VA. 722.


Opinion.


Richmond


THE BOARD OF SUPERVISORS OF LEE COUNTY V. EDGAR


BACON, COMMISSIONER OF ACCOUNTS


OF LEE COUNTY.


April 28, 1975.


Record No. 740711.


Present, All the Justices.

Cities, Counties and Towns — Commissioner of Accounts — Office Space

Assignment.

Commissioner of Accounts is entitled to an office in the courthouse only if space is available. Only that portion of building appointed for use of circuit court constitutes courthouse.
[emphasis added]
Board of Supervisors controls use and occupancy of all other parts of building, and Board has the statutory power and authority to relocate the office of the Commissioner.


Error to a judgment of the Circuit Court of Lee County. Hon. Glyn R. Phillips, judge designate presiding.

Reversed and final judgment

Gary Scott Bradshaw (Bradshaw & Bradshaw, on brief), for plaintiff in error.

Cecil D. Quillen (Quillen & Carter, on brief), for defendant in error.

I'Anson, C.J., delivered the opinion of the court.

On May 29, 1972, the Board of Supervisors of Lee County (Board) adopted a plan to effect eight different office changes in the county courthouse building. Under the plan Edgar Bacon, Commissioner of Accounts of Lee County (Commissioner), was to vacate the office space he occupies in the courthouse building and he was given the option of moving to space either in another part of the building or in the basement of the county jail. The Commissioner refused to move his office, and the Board instituted this action to obtain possession of the space. The Commissioner asserted in his answer that the Board was without authority to direct him to vacate his present office space because he performed quasi-judicial functions and the office had been assigned to him by an order entered by the judge of the circuit court on March 3,1958.

The record shows the parties agreed that the pleadings and exhibits filed constitute all "the evidence needed by the court in the determination of the issues." Thereupon both parties moved for summary judgment. The trial court overruled the Board's motion and entered summary judgment for the Commissioner on the ground that the order entered by the judge of the circuit court in March 1958 was valid and still in force and effect.

The sole issue before us is whether the Board possesses, the statutory power and authority to relocate the office of the Commissioner.

Code § 15.1-258, as amended, provides in part:

"The governing body of each county and city shall, if there be offices in the courthouses of the respective counties and cities available for such purposes, provide offices for the treasurer, attorney for the Commonwealth, sheriff, commissioner of the revenue, commissioner of accounts and division superintendent of schools for such county or city."

The predecessor of this statute was interpreted in Egerton v.Hopewell, 193 Va. 493, 69 S.E.2d 326 (1952).

In Egerton, the city of Hopewell constructed a municipal building which was to house a courtroom, judge's chambers, jury room, conference or witness room, and offices of the administrative agencies of the city. Egerton was the city sergeant, who performed the duties of sheriff, and he occupied an office in the building. The city directed Egerton to vacate the office and assigned him space in the city jail. He refused to move, contending that he was entitled, under the provisions of Code § 15-689 (now Code § 15.1-258, as amended) to an office, if available, in the courthouse. Egerton asserted that since the municipal building housed the courtroom, court offices and judge's chambers, the entire building was the courthouse and that, even if the entire building was not the courthouse, he was entitled to office space in the building. In affirming the judgment of the trial court directing the sergeant to vacate his office in the municipal building, we held that the building was not in its entirety the courthouse; that only that portion of the building appointed for the use of the circuit court constituted the courthouse
[emphasis added]
; and that the council of the city of Hopewell was authorized and empowered to control the use and occupancy of all other parts of the building.


The present case is controlled by our holding in Egerton. Here the undisputed facts show that the courthouse building, as in Egerton, was occupied jointly by the circuit court and various county officials and employees, and the office occupied by the Commissioner was not located in that part of the building appointed for the use and occupancy of the circuit court.

Only that part of the courthouse building necessary for the use and occupancy of the circuit court constituted the courthouse
[emphasis added]
, and the court has control over the assignment of space in such area. The governing body of the county has control of the use and occupancy of all other areas of the building. Thus, the 1958 order of the circuit court assigning office space to the Commissioner in that part of the building which did not constitute the courthouse was not binding. Moreover, to hold that the court had the authority and power to assign offices to certain county officials in the courthouse building would nullify the provisions of Code § 15.1-258, which require the governing body of the county to provide the Commissioner and other officials named in the statute with offices in the courthouse, if space is available.


Code § *15.1-258 reflects the plain intent of the legislature that the commissioner of accounts be entitled to an office in the courthouse only if space is available. If the legislature had intended that the county be required to provide an office in that part of the building constituting the courthouse for the commissioner of accounts it would have so provided in Code § 15.1-257, which mandates the governing body of every county to provide a courthouse with suitable space and facilities to accommodate their courts of record and offices for its clerks.

Dawley v. City of Norfolk, 159 F.Supp. 642 (E.D.Va. 1958), relied upon by the Commissioner and the court below, is distinguishable on its facts. There, the courthouse building was used exclusively by State courts and judges and did not house both judicial and municipal offices. Supervisors of Bedford v. Wingfield, 68 Va. (27 Graft.) 329 (1876), and Belvin v. City of Richmond, 85 Va. 574, 8 S.E. 378, 1 L.R.A. 807 (1888), cited in Dawley, supra, are also distinguishable on their facts.

The Commissioner further argues that if we hold that the trial court erred in entering summary judgment for him, the case should be remanded to permit him to present evidence that the Board abused its discretion in directing him to change the location of his office. We do not agree. That was not an issue in the court below or before us.

For the reasons stated, we hold that the Board possesses the statutory power and authority to relocate the office of the Commissioner, and that the trial court erred in not sustaining the Board's motion for summary judgment and in entering summary judgment for the Commissioner.

The judgment of the court below is reversed, and final judgment is here entered for the Board.

Reversed and final judgment.

*§ 15.2-1639. Providing offices for various officers, judges, etc.

[/quote][/size][/font]

stay safe.



skidmark

Can you carry a gun into your bank if its federally funded like FDIC in Virginia?

answer yes because it is not federal property.  

He's definitely wrong. 18 USC 930 defines a federal facility as:

"...a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties."

Simply being a "federally backed" institution (what did he even mean by that? FDIC insured?) doesn't cut it. Unless the building is owned or leased by the feds and federal employees work there, it is completely legal to carry a firearm there.

EDIT: I too carry into my bank on occasion and so far nobody has even seemed surprised by it.


when is a firearm considered concealed?


Code Section § 18.2-308. Personal protection; carrying concealed weapons; when lawful to carry.

says in part:

. . . . . . . If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material;. . . . . . . . . .

he shall be guilty of a Class 1 misdemeanor. A second violation of this section or a conviction under this section subsequent to any conviction under any substantially similar ordinance of any county, city, or town shall be punishable as a Class 6 felony, and a third or subsequent such violation shall be punishable as a Class 5 felony.

For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon's true nature.

Sounds like that if a common joe can see the gun and recognize that it is a gun, you should be OK.





FAIRFAX COUNTY

Notwithstanding the provisions of Subsections (a) through (f) of this Section, the following acts shall not be violations of this Section:

Shooting or discharge of any firearm by any law enforcement officer acting in the performance of the duties of a law enforcement agency. For the purposes of this Section the term "law enforcement officer" includes any person defined as a law enforcement officer pursuant to Virginia Code § 9.1-101 and any animal control officer acting in the performance of his or her duty.

(5)Discharge of any firearm in an entirely indoor target range, provided that adequate provisions are made to retain within the structure all projectiles discharged.

(6)Discharge of any firearm for the purpose of protecting any person from death or great bodily harm.

(7)Discharge of any firearm or starting pistol loaded with a blank cartridge, or other ammunition, not resulting in the expulsion of a projectile or projectiles.

(8)Discharge of any firearm (i) pursuant to a permit issued in accordance with Virginia Code § 29.1-529, if the discharge is on land that contains at least five acres and is zoned for agricultural use; or (ii) pursuant to authorization issued in accordance with 4 VAC 15-40-240 by the Director of the Department of Game and Inland Fisheries.

(9)Shooting or discharge of a firearm by any representative of the Virginia Department of Game and Inland Fisheries in the performance of duty for scientific collection or wildlife management purposes. (5-19-60, § 2; 9-14-60; 9-5-62; 9-7-66; 10-26-66; 6-25-69; 8-4-71; 1961 Code, § 28-2; 2-74-28; 8-83-6; 43-93-6, § 1; 21-94-6; 39-96-6, § 1; 24-04-6; 20-11-6.) 

alexandria

Sec. 13-2-3 - Discharge of firearms.permanent link to this piece of content

Any person who willfully discharges or causes to be discharged any firearm in the city shall be guilty of a class 1 misdemeanor; provided that this section shall not apply to any law enforcement officer in the performance of his official duties, or to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property or is otherwise specifically authorized by law. (Code 1963, Sec. 41-3; Ord. No. 2826, 6/28/83, Sec. 29; Ord. No. 3333, 10/15/88, Sec. 1)


Manassas

This section shall not apply to any law enforcement officer in the performance of his official duties or to any other person whose willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law. 

Manassas park

Sec. 26-3. - Discharging of firearms.permanent link to this piece of content

(a)It shall be unlawful for any person in the city to discharge any firearm, except in a shooting gallery constructed and operated in accordance with the regulations of the National Rifle Association.

(b)This section shall not apply to any law enforcement officer in the discharge of his duties nor to any other person whose discharge of a firearm is justifiable or excusable at law in the protection of his life or property or in otherwise specifically authorized by law.

Prince William county

Sec. 31-27. - Same—Exceptions.permanent link to this piece of content

Notwithstanding any other provision of this article, firearms may be used in any restricted area in the following circumstances, provided that nothing herein shall be deemed to permit hunting with a firearm other than one authorized by law:

(1)The discharge of guns on any target, trap or skeet range or hunting preserve lawfully existing upon the date of adoption of this article or hereafter established in compliance with all other provisions of this Code or other county ordinances or state law;

(2)The discharge of guns on any target or rifle established and operated by the police or law enforcement department;

(3)The discharge of guns in a private basement or cellar target range;

(4)The discharge of guns in defense of one's life or to kill any dangerous or destructive wild animal;


===================================================================================================================


Places Where Carrying Concealed is Prohibited
NOTE: In most locations where concealed carry (CC) is prohibited, open carry (OC) is also prohibited.
- Federal facilities (buildings) (18USC § 930)
- Many federal agency lands (various federal regs, e.g., USPS, but not National Parks) 
- National Forests: OC prohibited except where hunting is allowed (4VAC15-40-60)
- General Assembly Buildings except for CHP holders (Joint Rules Committee Rule)
- State Parks: OC prohibited except where hunting is allowed (4VAC5-30-200)
- Hog Island Wildlife Management Area (4VAC15-40-120)
- Virginia Commonwealth University  (8VAC90-10-50)
- George Mason University buildings (8VAC35-60-20)
- Courthouses  (§18.2-283.1)
- Detention Facilities  (§15.2-915)
- K-12 school grounds (CHP holders exempted for CC while in a vehicle; handgun secured in a container or compartment in a vehicle also exempted.) (§18.2-308.1)
- K-12 school buses.  (§18.2-308.1)
- Property used exclusively for K-12 school-sponsored functions  (§18.2-308.1)
- Air carrier airport terminal buildings  (§18.2-287.01)
- Places of worship while a meeting for religious purposes is being held "without good and sufficient reason"  (§18.2-283)
- CC on private property when prohibited by owner (§18.2-308.0)

*** Carry this information with you by printing your own VCDL Carry Card! ***
!
IS IT ILLEGAL TO CARRY A FIREARM WHEN ITS POSTED BY THE OWNER? YES

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§ 18.2-119. Trespass after having been forbidden to do so; penalties.

If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by or at the direction of such persons or the agent of any such person or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of §§ 18.2-132 through 18.2-136.

(Code 1950, § 18.1-173; 1960, c. 358; 1975, cc. 14, 15; 1982, c. 169; 1987, cc. 625, 705; 1991, c. 534; 1998, cc. 569, 684; 2011, c. 195.)



 

http://ashburn.patch.com/articles/ask-a-deputy-open-carry-weapons#comment_3998918 NOTE THIS ROUGHLY 90% ACCURATE LAW INFORMATION

Ask a Deputy: Open Carry Firearms

A readers asks about Virginia's laws on carrying a weapon in public.

Got a question you've always wanted to ask someone in law enforcement? Trying asking a member of the Loudoun County Sheriff's Office through Ask a Deputy. Readers submit questions and the LCSO responds. Send questions to dusty@patch.com or submit them below.

Get daily (or weekly) updates about news in the community by subscribing to the Ashburn Patch Newsletter.

Q: My best friend, retired military from the Florida Panhandle is coming to visit here in Virginia. He openly carries a side arm in Florida. He’s asking is that lawful in Virginia, not concealed. He has a permit. Can you help please?

Thanks,
John C.


A: Thank you for the question John. In general, one may openly carry a sidearm in plain sight in Virginia. The restrictions to openly carrying are divided into two broad categories, locations where you may not carry and persons who are not permitted to possess and/or transport a firearm. Locations where firearms may not be carried include:

  • Federal facilities
  • Federal agency lands
  • National Forests except where hunting is permitted
  • General Assembly buildings
  • Hog Island Wildlife Management Area
  • Virginia Commonwealth University
  • George Mason University
  • Courthouses
  • Detention Facilities
  • K-12 school grounds
  • K-12 school buses
  • Property used exclusively for K-12 school sponsored functions
  • Air carrier airport terminals
  • Places of worship while a meeting for religious purposes is being held without good and sufficient reason

Additionally in Loudoun County, one may not carry in public areas a loaded firearm that meets one of the following conditions (with exceptions):

  1. A semi-automatic rifle or pistol with a loaded, inserted magazine capable of holding more than 20 rounds of ammunition
  2. A semi-automatic rifle or pistol designed by the manufacturer to accommodate a silencer
  3. A semi-automatic rifle or pistol equipped with a folding stock
  4. A shotgun with a magazine that will hold more than 7 rounds of ammunition

Persons not permitted to possess and/or transport firearms under §18.2-308 include:

  • Persons acquitted by reason of insanity of any felony or Class I or II misdemeanor
  • Persons adjudicated incompetent or mentally incapacitated
  • Persons involuntarily committed or ordered to outpatient treatment
  • Persons subject to a protective order
  • Persons convicted of certain drug offenses
  • Convicted felons
  • While possessing certain controlled substances

 

ed
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MWAA Police Chief responds to my letter about Open Carrier questioned..


Dear Chief -

I last had communication with you in 2008 with regard to the legal Open Carry of Firearms at both Dulles and National airports. The fact that we have not really had an issue in the past five years is a testament to both of us educating out troops.

Last week however, I heard from a citizen, that was "deeply" questioned when he stepped out of his car in front of the DCA terminal to retrieve a bag for the person he was dropping off. he was openly carrying a holstered firearm on his right hip. He was surprised that the officer that approached him (and it may have been a parking enforcement member and not a sworn officer) sounded off with about ten questions about the firearm, and from what I was told, in a pretty aggressive tone. The citizen did not feel he was "detained" and a complaint was not filed. he did however send a query to me on what should have happened, and what should he have said or done differently.

I explained to this citizen and others, that current law (§ 18.2-287.01) prevents carry into the Terminal building(s) (unless cased and unloaded for travel) at any of Virginia's nine air carrier airports (CHO, IAD, DCA, LYH, PHF, ORF, RIC, ROA, SHD), therefore carry on landside, non-terminal building or secure areas is legal openly or concealed with a permit (to include access, egress, service roads, parking lots, and garages, etc.)

Each year I print up thousands of business card sized information cards with some notes and the Virginia Code section on them. I would be happy to send you a few hundred for your agency or a handful for your review.

I am trying to keep safety and education at the top of our lists so that legally armed, law abiding citizens, and MWAA Police and Operations can peacefully coexist without any problems/situations.

Thanks very much,

Ed Levine
Virginia Open Carry
Box 16143
Washington DC 20041-6143


- - - -
September 12, 2013

Mr. Ed Levine
Founder, Virginia Open Carry
P.O. Box 16143
Washington, DC 20041-6143


Dear Mr. Levine:

Thank you for taking the time to make me aware of the encounter a citizen had with one of our officers while picking up a passenger at Ronald Reagan Washington National Airport (Reagan Airport). In your letter dated August 12, 2013, you mentioned that a citizen was openly carrying a holstered firearm when he was “deeply” questioned as he stepped out of his car in front of the Reagan Airport terminal to retrieve a bag for his passenger. The citizen was surprised by the officer’s questions about his firearm, but did not feel “detained”.

I assure you that the Metropolitan Washington Airports Authority Police Department has taken great strides to educate our personnel about the laws pertaining to “open carry” to ensure we do not infringe upon the rights of citizens who choose to carry a firearm in compliance with the laws of Virginia. The information you referenced pertaining to Virginia State Code 18.2-287.01 is accurate and, as you are aware, does not prohibit a person from openly carrying a firearm in the manner in which you described in your letter. The informational cards you provided will help us to convey this to our officers and will be posted in our roll call rooms.

There is one other area we solicit your assistance. Our officers frequently respond to calls for “ammunition at the checkpoints.” This is illegal, but we rarely charge anyone with this offense. It is, however, an inconvenience to the passenger who is delayed while our officers gather the necessary information to document the incident. It would be most helpful if you would assist us in communicating a message to the community to remember to check all of their belongings (bags, pockets, jackets, etc.) for loose rounds of ammunition prior to traveling to the airport to take a flight.

Thanks, again, for bringing this matter to my attention. Be assured that we will continue to instruct our officers regarding the laws of open and concealed carry to ensure that we continue to provide quality customer service to all who use our Airports.

Sincerely,

Stephen L. Holl
Chief of Police
SLH:ehm
Carry On.

Ed

VirginiaOpenCarry.Org (Coins, Shirts and Patches)
- - - -
For VA Open Carry Cards send a S.A.2S.E. to: Ed's OC cards, Box 16143, Wash DC 20041-6143 (they are free but some folks enclose a couple bucks too)

http://forum.opencarry.org/forums/showthread.php?117274-MWAA-Police-Chief-responds-to-my-letter-about-Open-Carrier-questioned&s=a9cf779589758f07436b3d2646771349
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