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Thread: Am I being detained? Yes! Now what?

  1. #1
    Regular Member MyWifeSaidYes's Avatar
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    Am I being detained? Yes! Now what?

    I keep seeing suggestions on how to act when stopped by a LEO for open carrying.

    Every seems to agree on the "Am I being detained?" question - if they say 'No' or do not answer, ask "Can I go now?", then leave if they say 'Yes' or do not answer. If they say 'No', repeat this whole process. Great. I can handle that.

    But what if they say 'Yes, you are being detained." Then what?
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

  2. #2
    Activist Member N605TW's Avatar
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    Quote Originally Posted by MyWifeSaidYes View Post
    But what if they say 'Yes, you are being detained." Then what?
    Shut up. Any thing you say can ,and only, be used against you. In Ohio you must identify your self to the officer if/when you are arrested. So the only thing you are required to say after you are arrested is your name, current address and date of birth.

  3. #3
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by N605TW View Post
    Shut up. Any thing you say can ,and only, be used against you. In Ohio you must identify your self to the officer if/when you are arrested. So the only thing you are required to say after you are arrested is your name, current address and date of birth.
    NO, NO, NO!!!!

    When any of us are carrying concealed we understand that we must inform an officer of our conceal carry status and also have identification on our persons and supply that identification if requested.

    When open carrying we are not required to have any type of identification on our persons. Knowing that the Ohio legislature passed ORC 2921.29.

    Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer has wide leeway during an investigatory stop. But, that wide leeway is not unlimited. A stop under Terry is limited by the Fourth Amendment of the U.S. Constitution and also limited by Article 1 Section 14 of the Ohio Constitution. ORC §2921.29 is unconstitutional as written. ORC §2921.29(A) states in part “No person who is in a public place shall refuse to disclose the person’s name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:...” ORC §2921.29 goes well beyond the holding of Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al, 542 U.S. 177 (2004).

    The U.S. Supreme Court in Hiibel stated that:

    Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.

    The Hiibel court made it abundantly clear that, until Hiibel, an open question existed as to whether a suspect can be arrested and prosecuted for the refusal to answer questions, ie a suspect exercising their Fifth Amendment right. Through Hiibel the U.S. Supreme Court has ruled that the Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. The Court did not extend that principle beyond the giving of the suspect's name.

    ORC §2921.29 states “no person...shall refuse to disclose the person’s name, address, or date of birth.” The term “or” in Websters dictionary is a conjunction introducing an alternative. Thus, in plain English ORC §2921.29 allows a person to give one of the three alternatives. But, what if an arresting officer charges an Accused with not supplying all three because the officer treated the term “or” as if it meant “and.” According to ORC §1.02(F) (“And” may be read “or,” and “or” may be read “and” if the sense requires it.) the officer is permitted to make such interpretation. The officer's interpretation, however, would be in direct violation of ORC §1.42 which states in part “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Accordingly, the application of term “and” in ORC §2921.29(A) would then be in direct violation of Hiibel. Clearly, ORC §2921.29(A), when applied with the term “and” instead of “or”, would be beyond what the U.S. Supreme Court has allowed under the Fourth Amendment and therefore, ORC §2921.29 would be unconstitutional.

    If an Accused gave their name, but was arrested and jailed for not giving his address and date of birth, the arrest and jailing would be under the color of law and in violation of the Accused's constitutional right under the U.S. and Ohio Constitution.

  4. #4
    Regular Member sawah's Avatar
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    I agree with the poster above, know the laws and understand Hibel. But I'd also suggest, if it seems possible, to say 'Officer, am I required by law to (do this, respond, answer this question)' AND if a 2 party state have your recorder on to give you proof. Even though LEOs can lie, I don't think most LEOs will lie under color of law if asked directly if you are required to respond (depending on the person, the event and your demeanor, I suppose).

    NOW, they can fudge and obfuscate and say 'If you don't want to ride down to the station in cuffs you should reply', then that is not a 'yes' answer but an attempt to intimidate. I'd re-ask the question and have your lawyer on speed dial. LEOs are expert at getting you riled, trumping up charges, making you do a 'contempt of cop' and their main or really only job is to arrest someone. I think then I'd say 'may I call MY lawyer and have him appear here and will you call your sergeant and have him come to the scene', depending on how much you have to push it.

    FWIW
    A firearm is a tool of convenience, not effectiveness - Clint Smith, Thunder Ranch

  5. #5
    Regular Member Deanimator's Avatar
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    1. If carrying concealed, IMMEDIATELY inform as required by law. SHOUT OVER THE COP if necessary to do so. There are AT LEAST two documented cases of cops ordering people to be silent then charging them with "failure to promptly notify", in one instance after a ***53 second*** delay caused by the victim being ORDERED AT GUNPOINT TO REMAIN SILENT.
    2. ALWAYS carry and use a voice recorder when carrying a firearm, whether concealed or openly. It is a given that when cops err or intentionally misbehave, they LIE just as any other offender will.
    3. When carrying concealed, you must have BOTH your Ohio CHL (or recognized equivalent) AND a second form of ID, such as a driver's license. When open carrying, you need have NO ID AT ALL.
    4. When stopped (after notifying, if required) ask, "Am I free to leave?" That cuts through any obfuscation or dissimulation on the cop's part.
    5. If free to leave, do so, QUICKLY. Do not prolong the encounter unnecessarily with smalltalk. Cops don't do smalltalk. They do questioning, sometimes in the guise of smalltalk.
    6. If told that you are NOT free to leave, tell the cop, "I have nothing further to say to you without a lawyer present." ID yourself ONLY as required by law. Do NOT consent to ANY searches. Comply if subject to physical coercion. Verbally register your non-consent so that it is recorded. Then SHUT UP.


    When you're not free to leave, the cops are not your friends. They're not trying to help you. Save the "witty banter" for "Law & Order" reruns.

  6. #6
    Regular Member Deanimator's Avatar
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    Quote Originally Posted by sawah View Post
    I agree with the poster above, know the laws and understand Hibel. But I'd also suggest, if it seems possible, to say 'Officer, am I required by law to (do this, respond, answer this question)' AND if a 2 party state have your recorder on to give you proof. Even though LEOs can lie, I don't think most LEOs will lie under color of law if asked directly if you are required to respond (depending on the person, the event and your demeanor, I suppose).
    KNOW the law. ABSOLUTELY do NOT trust a cop to know the law or to be truthful.

    Harless and Diels both lied in their written reports. Diels LIED UNDER OATH ON THE STAND at Bartlett's criminal trial.

    I would no more trust a cop who stops me to be truthful than I'd trust somebody who knocked on my door unsolicited to resurface my driveway.

  7. #7
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by MyWifeSaidYes
    Every seems to agree on the "Am I being detained?" question - if they say 'No' or do not answer, ask "Can I go now?", then leave if they say 'Yes' or do not answer. If they say 'No', repeat this whole process. Great. I can handle that.
    But what if they say 'Yes, you are being detained." Then what?
    If you've gone that route, as others have already said: shut up.
    Unless you've called them for help, or flagged down a cruiser 'cause your car broke down, they are unlikely to be there to help you.

    A slightly better alternative would be to ask from the beginning:
    "Why am I being detained?" (Thank Citizen for this one.)
    Because if you have to ask whether or not you're being detained, you are being detained.

    If they can come up with a lawful reason, notify as required by law, then shut up.
    If they know they've been caught & you know your rights & they tell you "you're not being detained", leave.
    If they're caught off-guard by the question & tell you "you're not being detained", leave.

    You can also, of course, waive your right to remain silent & your right against self-incrimination & go ahead & chat with the Nice Officers, give them your ID, hand over your pistol for them to inspect & run the serial # on.
    It's your choice.
    The problem with that approach is that it reinforces their belief that they can do the same to anyone, & when they run into someone who knows & values their rights that person will have a harder time.
    Last edited by MKEgal; 05-13-2012 at 12:39 PM.
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    Regular Member zekester's Avatar
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    Quote Originally Posted by MKEgal View Post
    If you've gone that route, as others have already said: shut up.
    Unless you've called them for help, or flagged down a cruiser 'cause your car broke down, they are unlikely to be there to help you.
    Unless your in Oklahoma!!

    As MKE and Citizen has stated...always ask "WHY" am I being detained!!
    GOD gave me rights!!!....The Constitutuion just confirms it!!

  9. #9
    Accomplished Advocate BB62's Avatar
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    Bottom line: you are not required, by Hiibel or by the ORC to supply any identifying information unless certain circumstances apply.

    ORC 2921.29 says:
    (A) No person who is in a public place shall refuse to disclose the person’s name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:

    (1) The person is committing, has committed, or is about to commit a criminal offense. (sounds like the requirements for a legal Terry stop, eh?)
    (2) The person witnessed any of the following:
    (a) An offense of violence that would constitute a felony under the laws of this state;
    (b) A felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property;
    (c) Any attempt or conspiracy to commit, or complicity in committing, any offense identified in division (A)(2)(a) or (b) of this section;
    (d) Any conduct reasonably indicating that any offense identified in division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or complicity described in division (A)(2)(c) of this section has been, is being, or is about to be committed

    http://codes.ohio.gov/orc/2921.29

    Just because your information/ID is requested/demanded doesn't mean that you must supply it. The next time I'm stopped for OCing, I will supply nothing - and I'll let you all know the results.

    Let's put this notion to rest that you have to supply something. You don't.
    Last edited by BB62; 05-13-2012 at 01:35 PM.

  10. #10
    Accomplished Advocate color of law's Avatar
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    "WHY" am I being detained?????
    That is a little better than: What's your probable cause officer?????

    Both those questions will push the officers buttons. In other words, both questions are confrontational.

    I suggest a better way to ask the question is: What seems to be the problem officer????
    The officer has to articulate that he believes that there is some sort of crime about to be committed. And asking with sincerity what the problem is should not raise the red flags.

    Or you can ask: Is there a problem officer????

    Cop: You have a gun in a holster on your hip.

    Citizen: So.... Officer you have powdered sugar stains on your hands and mouth, and there is a strong smell of coffee on your breath. Again officer, is there a problem?????

    Do you see where this is leading?????

    My point is that you don't want to tick-off the cop - you want the cop to tell his life story....

    I'm just sayin.....
    Last edited by color of law; 05-13-2012 at 02:24 PM.

  11. #11
    Regular Member Deanimator's Avatar
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    Quote Originally Posted by color of law View Post
    My point is that you don't want to tick-off the cop - you want the cop to tell his life story....

    I'm just sayin.....
    If he's aggressively fishing, merely failing to fawningly submit will "tick-off the cop".

    I don't want ANYTHING to do with the cops. I sure don't want to play "Twenty Questions" or "What's My Line" with them by the side of the road.

    "Am I free to leave? No? I have nothing further to say without my attorney present."

    If that "ticks" him off, sucks to be him.

    It REALLY sucks to be him if he violates my rights while he's being recorded/streamed to the internet and recorded.

  12. #12
    Regular Member F350's Avatar
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    Quote Originally Posted by color of law View Post
    That is a little better than: What's your probable cause officer?????

    Both those questions will push the officers buttons. In other words, both questions are confrontational.
    I don't give frog spit about pushing a cops buttons, he has just push mine if he demands ID and I am doing nothing illegal.

    My plan is this...
    cop} "May/Can I see some ID"?
    me} "May/Can I hear some RAS"? then shut up, if he persists in demanding ID without stating RAS my next statement will be "You have just opened the door to a Chapter 42 US Code 1983 Civil Rights Law Suit, would care to walk on through the doorway or am I free to go"?


    As it is summer and I am almost exclusively OCing I'll let y'all know how it works out if stopped.

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    Quote Originally Posted by F350 View Post
    "You have just opened the door to a Chapter 42 US Code 1983 Civil Rights Law Suit, would care to walk on through the doorway or am I free to go"?
    That is BAD ASS!

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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by bhclark View Post
    That is BAD ASS!
    The few times I have had an encounter, no cuffs, no confiscation of firearm, not even asked for my CCL.

    So Deanimator and F350 how has that bad a$$ attitude worked out for you?

  15. #15
    Regular Member MyWifeSaidYes's Avatar
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    I open carry, so I don't have need to notify.

    To date, I have not been stopped, but the majority of my OC activity is in and around Logan, OH. We're pretty rural down here and firearms are simply a fact of life.

    I'm spending a lot more time in central Ohio and I'm sure it's only a matter of time before I'm stopped. Loading and unloading has already gotten a few odd looks, but apparently no MWAG calls.

    I'm always recording when I leave the house.

    My 'plan' is along the "Is there a problem, officer?" approach that COL mentioned.

    If pressed, I doubt threatening the LEO with a lawsuit is going to do anything. They probably have (or think they have) immunity for 'doing their job. They will not only open that door, they will push you through it.

    Once things get to "Yes, you are being detained", my 'plan' is to ask fo my attorney and shut up. I just wanted to find out what others were thinking.
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

  16. #16
    Regular Member Deanimator's Avatar
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    Quote Originally Posted by color of law View Post
    The few times I have had an encounter, no cuffs, no confiscation of firearm, not even asked for my CCL.

    So Deanimator and F350 how has that bad a$$ attitude worked out for you?
    Just fine. I've got a good lawyer who's trained me well in dealing with the police.

  17. #17
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    "officer I have nothing further to say until I have secured counsil" Asking the cop for your attourney is rediculous because its not his job to get him for you.

  18. #18
    Regular Member OC for ME's Avatar
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    Cop: Can I see some ID?
    You: Maybe, can I see some ID?
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

  19. #19
    Regular Member MyWifeSaidYes's Avatar
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    Quote Originally Posted by Ken56 View Post
    "officer I have nothing further to say until I have secured counsil" Asking the cop for your attourney is rediculous because its not his job to get him for you.
    You are correct. I wouldn't be asking the LEO for anything. Working through the scenario in my mind, my comment would be something like: "I need to contact my attorney."
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

  20. #20
    Regular Member MyWifeSaidYes's Avatar
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    Quote Originally Posted by OC for ME View Post
    Cop: Can I see some ID?
    You: Maybe, can I see some ID?
    And when the cop shows you his ID, then what?
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

  21. #21
    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by OC for ME View Post
    Cop: Can I see some ID?
    You: Maybe, can I see some ID?
    Quote Originally Posted by MyWifeSaidYes View Post
    And when the cop shows you his ID, then what?
    "No, Officer Friendly, not your department ID, I want to see a State Issued ID, just like you want me to show you."
    Seriously, most department ID's could be done better by Office Despot, or a HS sophomore during a lunch break.
    (What are the chances of Ofc Friendly showing you a state issued ID? Not a snowballs.... lol)

  22. #22
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by Deanimator View Post
    Just fine. I've got a good lawyer who's trained me well in dealing with the police.
    That nice, but I got a good attorney who I trained quite well in dealing with the police.

  23. #23
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    Quote Originally Posted by color of law View Post
    That nice, but I got a good attorney who I trained quite well in dealing with the police.
    Gary, I've been laughing for about 5 minutes now. I'd trust your advice,(and have), over some lawyer that won't return calls anyday. I look forward to seeing you in June supporting Harley (Bill) in Court.
    Last edited by JSlack7851; 05-16-2012 at 11:50 AM. Reason: sp.

  24. #24
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by JSlack7851 View Post
    Gary, I've been laughing for about 5 minutes now. I'd trust your advice,(and have), over some lawyer that won't return calls anyday. I look forward to seeing you in June supporting Harley (Bill) in Court.
    The plans are that I will be in Waverley June 8, 2012.

    The hardiest part about training an attorney is getting them to go on the paper.

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