Citizen
Founder's Club Member
This is intended as a reference thread. Please limit comments and questions to things very directly on point. If you want to copy and repost this first post in your state sub-forum because of law specific to your state, feel free. Please just link back to this original post/thread so others can come find this one if they are from another state but find it first in your state forum.
I am posting this because the subject came up again recently. And, as you are about to read, it is kinda lengthy if one wants to be comprehensive. Thus, whenever this subject comes up, I have to type and type and type. So, I decided to just do a thorough write-up once. And, from here on out, whenever the subject comes up again, I can just link back to here.
Can You Correctly Guess Whether the Cop has RAS?
I am not a lawyer. You will want to verify the information that follows by research or consulting an attorney. If you use the information, you are assuming full responsibility.
RAS means reasonable articulable suspicion, sometimes called just reasonable suspicion. It is a legal term having to do with the threshold for when a cop is legally allowed to involuntarily detain someone while the cop investigates that person. See Terry v Ohio[SUP]1[/SUP]for the beginnings of RAS and the threshold of suspicion the cop needs to meet. Basically, a police officer must have reasonable articulable suspicion that a crime was, is, or is about to be committed before he can temporarily detain that person involuntarily fo rfurther investigation, using reasonable force if necessary to control that person’s movement. The suspicion must be reasonable. It must be based on articulable facts, no hunches allowed. And, the cop can use his experience as a cop to inform his decision to detain someone; meaning, things that might not be suspicious to you and I might be suspicious to him since he deals with criminal behavior regularly.
From time to time you will read some version of, “If the cop doesn’t have RAS, he can’t detain you, and you can ignore him and walk off.” While true from a theoretical standpoint, there are a few problems for the OCer who would just walk away from a police detention after deciding the cops do not have the required RAS. If an OCer walks away from a cop who means to detain him, the consequences can be rough. He may be proned-out and handcuffed. Obstruction may be charged.
The trouble starts with who gets to decide legally whether the cop has RAS. The last paragraph of Terry v Ohio makes it clear that it is the courts who decide whether the cop had RAS. Meaning, it is decided after the detention is over. By the courts. Not the detainee during the detention.
There is another angle to RAS. The Terry court recognized that the circumstances observed by the cop that led him to detain someone will be different from the circusmstances giving rise to another detention. In the last paragraph of Terry, the court said each situation will have to be judged on its own set of circumstances as to whether genuine RAS existed. Since Terry was written, appellate courts have been churning out decisions as to whether this set of circumstances or that set of circumstances observed by a cop amounted to genuine RAS. There are numerous decisions at both the state and federal level.
And, those court decisions are only the ones that were appealed. Each trial judge gets to make his own determination if the question is raised during a pre-trial hearing. And, unless overturned on appeal, the trial judge’s decision about whether the cop had genuine RAS is the one that will count for the OCer who ends up in court.
Another problem for the OCer is that the cop is not required to inform the detainee ofhis RAS. I’ve never seen a court decision that requires the cop to inform the detainee of the circumstances that led the cop to be suspicious.[SUP]2[/SUP] A related problem is that cops are allowed to lie. Look up permissible deception. And, I know of no reason why a cop couldn’t tell an OCer only part of the RAS, not all of it, for example to see if the detainee will say something that is contradicted by something the cop already observed.
Thus, if an OCer wants to just up and walk away from a detention because he thinks the cop does not have RAS, the OCer has to correctly:
Sounds like a pretty tall order to me.
However, some might argue, “Well, what if the circumstances are all known to the OCer and are fairly straightforward?” For example, the OCer is walking his dog in a park where OC is legal, and cop on patrol notices the OCer and decides to pester the OCer a bit? The OCer can see all the same things the cop could see—guy walking his dog in a park where OC is legal during daylight. No big deal, right? But, what if there was a 911 call and radio dispatch about a man with a gun and a dog in a park? A 911 call that was just a little bit hysterical or ambiguous? Or, maybe contained some embellishment or exaggeration? Or, maybe the dispatcher misreports by honest mistake to the cop. (Its what the cop observes or is told by dispatch, not what the OCer thinks).
I’m not saying the situation can never occur where the OCer knows all the RAS during the detention, and can correctly figure out whether the circumstances are genuine RAS. I am saying the probability is rather low. Certainly, a lot less likely than might be thought by the guy who tells you, “If the cop doesn’t have RAS he can’t detain you and you can just walk away.”
And, with all that said, there may be law that prevents the OCer walking away, even if he guessed correctly. For example, in VA we have a court decision, Commonwealth vs Christian, that says in so many words that the right to resist a false arrest does not extend to an unlawful temporary investigative detention. So, in VA, even if the OCer gets it right and starts to walk away, if the cop grabs him, and the OCer fights back to free himself from an unlawful detention, he still gets charged and probably convicted for assaulting a police officer. Even though the detention was illegal (not based on genuine RAS)! Other states may have similar.
So, keep the foregoing in mind when somebody writes, “If the cop doesn’t have RAS, you can…”
Citizen 8/7/12
1. Terry v Ohio: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
2. Recently a West VA appeals court decision was quoted on the forum that said a person could not be charged with obstruction for refusing to identify himself during a detention unless the cop informed him why the cop was demanding identity as part of his official duties. This implies that maybe in WV a cop does have to tell a person the RAS if the cop wants to be able to charge obstruction. If you are from WV and want to know more, see post #89 at this thread: http://ww.opencarry.org/forums/showthread.php?104664-Produce-ID-for-the-police/page4&
I am posting this because the subject came up again recently. And, as you are about to read, it is kinda lengthy if one wants to be comprehensive. Thus, whenever this subject comes up, I have to type and type and type. So, I decided to just do a thorough write-up once. And, from here on out, whenever the subject comes up again, I can just link back to here.
Can You Correctly Guess Whether the Cop has RAS?
I am not a lawyer. You will want to verify the information that follows by research or consulting an attorney. If you use the information, you are assuming full responsibility.
RAS means reasonable articulable suspicion, sometimes called just reasonable suspicion. It is a legal term having to do with the threshold for when a cop is legally allowed to involuntarily detain someone while the cop investigates that person. See Terry v Ohio[SUP]1[/SUP]for the beginnings of RAS and the threshold of suspicion the cop needs to meet. Basically, a police officer must have reasonable articulable suspicion that a crime was, is, or is about to be committed before he can temporarily detain that person involuntarily fo rfurther investigation, using reasonable force if necessary to control that person’s movement. The suspicion must be reasonable. It must be based on articulable facts, no hunches allowed. And, the cop can use his experience as a cop to inform his decision to detain someone; meaning, things that might not be suspicious to you and I might be suspicious to him since he deals with criminal behavior regularly.
From time to time you will read some version of, “If the cop doesn’t have RAS, he can’t detain you, and you can ignore him and walk off.” While true from a theoretical standpoint, there are a few problems for the OCer who would just walk away from a police detention after deciding the cops do not have the required RAS. If an OCer walks away from a cop who means to detain him, the consequences can be rough. He may be proned-out and handcuffed. Obstruction may be charged.
The trouble starts with who gets to decide legally whether the cop has RAS. The last paragraph of Terry v Ohio makes it clear that it is the courts who decide whether the cop had RAS. Meaning, it is decided after the detention is over. By the courts. Not the detainee during the detention.
There is another angle to RAS. The Terry court recognized that the circumstances observed by the cop that led him to detain someone will be different from the circusmstances giving rise to another detention. In the last paragraph of Terry, the court said each situation will have to be judged on its own set of circumstances as to whether genuine RAS existed. Since Terry was written, appellate courts have been churning out decisions as to whether this set of circumstances or that set of circumstances observed by a cop amounted to genuine RAS. There are numerous decisions at both the state and federal level.
And, those court decisions are only the ones that were appealed. Each trial judge gets to make his own determination if the question is raised during a pre-trial hearing. And, unless overturned on appeal, the trial judge’s decision about whether the cop had genuine RAS is the one that will count for the OCer who ends up in court.
Another problem for the OCer is that the cop is not required to inform the detainee ofhis RAS. I’ve never seen a court decision that requires the cop to inform the detainee of the circumstances that led the cop to be suspicious.[SUP]2[/SUP] A related problem is that cops are allowed to lie. Look up permissible deception. And, I know of no reason why a cop couldn’t tell an OCer only part of the RAS, not all of it, for example to see if the detainee will say something that is contradicted by something the cop already observed.
Thus, if an OCer wants to just up and walk away from a detention because he thinks the cop does not have RAS, the OCer has to correctly:
- Remember whether his circumstances have been ruled as RAS or not RAS by an appeals court in his jurisdiction.
- Guess how his trial judge will rule on the circumstances that made the cop suspicious of the OCer.
- Guess whether the cop honestly told him all the circumstances behind the cop’s RAS.
- Guess whether there is something in the cop’s experience with criminals that allows him to be suspicious of the OCer.
Sounds like a pretty tall order to me.
However, some might argue, “Well, what if the circumstances are all known to the OCer and are fairly straightforward?” For example, the OCer is walking his dog in a park where OC is legal, and cop on patrol notices the OCer and decides to pester the OCer a bit? The OCer can see all the same things the cop could see—guy walking his dog in a park where OC is legal during daylight. No big deal, right? But, what if there was a 911 call and radio dispatch about a man with a gun and a dog in a park? A 911 call that was just a little bit hysterical or ambiguous? Or, maybe contained some embellishment or exaggeration? Or, maybe the dispatcher misreports by honest mistake to the cop. (Its what the cop observes or is told by dispatch, not what the OCer thinks).
I’m not saying the situation can never occur where the OCer knows all the RAS during the detention, and can correctly figure out whether the circumstances are genuine RAS. I am saying the probability is rather low. Certainly, a lot less likely than might be thought by the guy who tells you, “If the cop doesn’t have RAS he can’t detain you and you can just walk away.”
And, with all that said, there may be law that prevents the OCer walking away, even if he guessed correctly. For example, in VA we have a court decision, Commonwealth vs Christian, that says in so many words that the right to resist a false arrest does not extend to an unlawful temporary investigative detention. So, in VA, even if the OCer gets it right and starts to walk away, if the cop grabs him, and the OCer fights back to free himself from an unlawful detention, he still gets charged and probably convicted for assaulting a police officer. Even though the detention was illegal (not based on genuine RAS)! Other states may have similar.
So, keep the foregoing in mind when somebody writes, “If the cop doesn’t have RAS, you can…”
Citizen 8/7/12
1. Terry v Ohio: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
2. Recently a West VA appeals court decision was quoted on the forum that said a person could not be charged with obstruction for refusing to identify himself during a detention unless the cop informed him why the cop was demanding identity as part of his official duties. This implies that maybe in WV a cop does have to tell a person the RAS if the cop wants to be able to charge obstruction. If you are from WV and want to know more, see post #89 at this thread: http://ww.opencarry.org/forums/showthread.php?104664-Produce-ID-for-the-police/page4&
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