Jailed for Bulge in His Pocket, Tri-Cities Man Gets a Reprieve From State Supreme Court

Or are you just happy to see me?
Can you be an apparent law-abiding citizen, walking along a city street, and be arrested, essentially, for having a bulge in your pants? Yes, over in Richland, anyway.

That was the outcome of what happened to Dustin Warren Harrington around 11 p.m. Aug.13, 2005. Police Officer Scott Reiber thought Harrington looked suspicious walking through a neighborhood at night. He flipped a U-ey, and asked Harrington if they could talk.

As Reiber later explained somewhat confusingly in court, he "contact[ed]" Harrington because "[t]hat area, late at night, a gentleman walking - social contact. See what he was up to, just to talk."

Reiber asked Harrington where he was coming from. His sister's house, said Harrington, but he didn't know exactly where the house was. That made Reiber suspicious, and Harrington seemed nervous, according to court records.

Reiber then noticed bulges in Harrington's pockets. Reiber also thought it was suspicious that Harrington kept moving his hands in and out of them.

As a state trooper pulled up to assist, the Richland cop asked if he could pat down Harrington for officer safety, explaning he was not under arrest.

Harrington agreed. Reiber then "felt a hard, cylindrical object in Harrington's front right pocket," according to the record.

What's this? asked the cop.

"My glass," said Harrington. "My meth pipe."

Immediately arrested, Harrington was also carrying a baggy of meth, found during the pat down.

Harrington was later convicted of unlawful possession of a controlled substance, and appealed, claiming the evidence was seized illegally. The cop, with the trooper backing him up, he said, effectively gestapo-ed him into turning over his incriminating goods.

Today, the state Supreme Court unanimously agreed.

"We conclude," says Justice Richard Sanders, who authored today's opinion, "the officers' [cop and trooper] actions, when viewed cumulatively, impermissibly disturbed Harrington's private affairs without authority of law and therefore constituted an unlawful seizure."

Asking someone if you can pat down their body, writes Sanders, "is inconsistent with a mere social contact. If Reiber felt jittery about the bulges in Harrington's pockets, he should have terminated the encounter - which Reiber initiated - and walked back to his patrol car...

"When Reiber requested a frisk, the officers' series of actions matured into a progressive intrusion substantial enough to seize [control of] Harrington. A reasonable person would not have felt free to leave due to the officers' display of authority.

"We note this progressive intrusion, culminating in seizure, runs afoul of the language, purpose, and protections of article I, section 7. Our [state] constitution protects against disturbance of private affairs - a broad concept that encapsulates searches and seizures...

"Article I, section 7 cannot tolerate the officers' progressive intrusion into Harrington's privacy. We reverse the Court of Appeals, suppress the evidence against Harrington, and dismiss."

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