APPALACHIA — An attorney representing a town business owner is suggesting that police have the authority to stop and frisk people walking in town and arrest them if they refuse.

But town attorney Michael Abbott disagrees, saying it’s not that simple.

Residents have been complaining about drug problems in the town for months. Resident and businessman Randy Clark has asked town council to have town police stop, question and search “backpackers” who some residents suspect of selling drugs.

At council’s June 20 meeting, Clark presented a letter from his attorney, G. Joe Kincade, to council and handed copies to others in attendance.

The letter included a copy of the federal Terry v Ohio, 392 U.S. 1(1964) or “Terry Stop” decision, which read: “Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her with probable cause to arrest, if the police officer has a reasonable articulable suspicion that the person has committed or is committing a crime and has reasonable belief that the person ‘may be armed and presently dangerous.’”

Kincade wrote: “In your case, individuals with backpacks, walking around and going into the same house everyday, would be a suspicious activity and would give the officer a reasonable articulable suspicion, the officer CAN approach the individuals and ask them to consent to a search (Stop & Frisk). If they say ‘no’ or resist in any way, the officer CAN arrest them, take them into custody with the full understanding that, without probable cause, they will be released sometime in the very near future.”

The problem with the document, according to Abbott, is that Kincade’s own explanation of the law is wrong.

Arresting someone for refusing a search without probable cause or reasonable articulable suspicion “opens the municipality to civil suit for false arrest,” Abbott said. Furthermore, he said, any illegal paraphernalia found after the false arrest is inadmissible.

Abbott gave an example of articulable suspicion as stopping someone, then smelling alcohol or seeing them unsteady on their feet. The person could then be arrested for being drunk in public. Abbott also explained that a person can only be searched during a stop for officer safety, if a weapon or a bulge appearing to be a weapon can be seen on an individual.

Abbott explained that if there is no probable cause or reasonable articulable suspicion, officers will have to obtain a search warrant from the magistrate in order to search someone. “In that case, the officer would have to explain to the magistrate the reason for the search warrant.”

Abbott stated that he understands the resident’s concerns and has spoken with the police lieutenant about them; however, the police cannot target or harass individuals of the town.

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