stop and identify

so the only thing stopping me from open carrying is im a little nervous about any contact with law enforcement. if they ask who i am do i have to identify myself? i read the law but am not sure.

weston502 said:

so the only thing stopping me from open carrying is im a little nervous about any contact with law enforcement. if they ask who i am do i have to identify myself? i read the law but am not sure.

Click to expand...

What statute were you looking at?
946.41 http://docs.legis.wi.gov/statutes/statutes/946/IV/41 covers "resisting or obstructing"
From what's written, both have to be deliberate acts, actively doing something to make the cop's life difficult.
And the officer has to be "doing any act in an official capacity and with lawful authority".
Reading the citations at the end of each statute can be very informative.

Here's a WI Supreme Court decision:
No law allows officers to arrest for obstruction on a person’s refusal to give his or her name.
Mere silence is insufficient to constitute obstruction.
Henes v. Morrissey, 1995

There's also 968.24 http://docs.legis.wi.gov/statutes/statutes/968/24

Temporary questioning without arrest.
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct.
Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

Click to expand...

This section authorizes officers to demand identification only when a person is suspected of committing a crime, but does not govern the lawfulness of requests for identification in other circumstances.
WI v. Griffith (2000)

Which leads to

968.25 Search during temporary questioning.
When a law enforcement officer has stopped a person for temporary questioning pursuant to 968.24 and reasonably suspects that he or she or another is in danger of physical injury, the law enforcement officer may search such person for weapons

Click to expand...

Notice that being armed does not automatically equal other people being in danger of physical injury.

Exercising a civil right (remaining silent) is not and can never be a crime.
"The Claim and exercise of a Constitutional Right cannot be converted into a crime."
Miller v. U.S. (SCOTUS)

And from one of our courts of appeal:
"The mere presence of firearms does not create exigent circumstances."
WI v. Kiekhefer, 1997

These 3 are from different US district courts, so it's a widespread precident. Here's the Volok post talking about them.

"Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
St. John v. McColley (2009)
(also known as St. John v. Alamogordo, settled in the US district court for NM)

The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
U.S. v. Ubiles (2000)

The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
U.S. v. King (1993)

weston502 said:

so the only thing stopping me from open carrying is im a little nervous about any contact with law enforcement. if they ask who i am do i have to identify myself? i read the law but am not sure.

Click to expand...

You'll talk ... lol

Really, just tell them you'll answer any ? in court. And say bye bye and walk away.

BTW, the last part of 968.25 is something way too many officers ignore (esp. in Milwaukee, thanks to Flynn):

the law enforcement officer may take [the weapon] and keep it until the completion of the questioning, at which time the law enforcement officer shall either return it, if lawfully possessed, or arrest the person so questioned.

Click to expand...

Even if the officer decides that a LAC is a danger to their safety, & takes the gun "for officer safety" while running the serial # (an unwarranted search), unless the officer can make up some reason for an arrest, the return of property is required.
:monkey :banana:

BTW, I think it's Citizen who recommends asking "why am I being detained?" rather than "am I being detained" or "am I free to go". Because if you have to ask, you're being detained. If they don't let you walk away, you're being detained. They have to have a reason, & a crime they suspect you of.

Very good answer

I like how you answer his question backed up by court cases......thats the way to respond to a question!!


Cowboyridn

MKEgal said:

What statute were you looking at?
946.41 http://docs.legis.wi.gov/statutes/statutes/946/IV/41 covers "resisting or obstructing"
From what's written, both have to be deliberate acts, actively doing something to make the cop's life difficult.
And the officer has to be "doing any act in an official capacity and with lawful authority".
Reading the citations at the end of each statute can be very informative.

Here's a WI Supreme Court decision:
No law allows officers to arrest for obstruction on a person’s refusal to give his or her name.
Mere silence is insufficient to constitute obstruction.
Henes v. Morrissey, 1995

There's also 968.24 http://docs.legis.wi.gov/statutes/statutes/968/24

This section authorizes officers to demand identification only when a person is suspected of committing a crime, but does not govern the lawfulness of requests for identification in other circumstances.
WI v. Griffith (2000)

Which leads to

Notice that being armed does not automatically equal other people being in danger of physical injury.

Exercising a civil right (remaining silent) is not and can never be a crime.
"The Claim and exercise of a Constitutional Right cannot be converted into a crime."
Miller v. U.S. (SCOTUS)

And from one of our courts of appeal:
"The mere presence of firearms does not create exigent circumstances."
WI v. Kiekhefer, 1997

These 3 are from different US district courts, so it's a widespread precident. Here's the Volok post talking about them.

"Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
St. John v. McColley (2009)
(also known as St. John v. Alamogordo, settled in the US district court for NM)

The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
U.S. v. Ubiles (2000)

The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
U.S. v. King (1993)

Click to expand...

I'll walk with you

Anytime you want to open carry I'd be happy to go with you, leave your ID at home though becasue if we are stopped and you don't have an ID on you then you can't provide one, which brings up a good point, if you have it on you, and a LEO asked for your ID you can't say no........well you could, but then if he detaines you and searches you and finds you have a ID on you thats being untruthful to a LEO which if I'm not mistaken the LEO could then charge you for perhaps obstruction, or interfering with a investigation or whatever he or she can dream up, LEO can do what they want to you when they want, however its likely the LEO will end up in civil court as a result.

There is large argument about whether the subjects should show the officers a ID when asked. In a situation such as this, where there is no stop and ID law, where there is no reasonable suspicion of any crime being or about to be committed, it is important that you NOT show ID to the officer during the initial encounter. Here is why:

Using the Culver case referenced as an example, the first determination in court will be whether or not the subjects were actually formally detained by the officers or whether it was a consensual encounter. IF it is determined that the initial encounter was consensual - that the subjects agreed to talk to the officers - their case becomes more difficult. IF it is determined that the initial encounter was a "Terry Stop", then the next question becomes if the officers had reasonable suspicion to justify a Terry Stop.

So, if the officer asks you for ID and you immediately show it to him - now it is your word against his/her whether or not the encounter was consensual. It is up to you to prove that you were being detained. You now have the burden of proof. You will have to show, by a combination of circumstances/actions that the officer detained you and that you a (reasonable person) did not feel free to leave ie number of officers, where they were standing, handcuffs, weapons drawn, etc. will all be a basis for determining if they were detaining you or the encounter was consensual.

If the officer asks you for ID and you refuse to show it, now the officers next actions will demonstrate, with no doubt, whether or not you were detained. The officer can let you go on your way and it's done OR the officer can keep you there - after you have obviously made it clear you do not desire to interact with the officer and, thus, it pretty much removes all doubt that you were detained. Now the burden of proof switches to the officer. The officer must prove he had reasonable suspicion to justify detaining you. If there is no stop and ID statute (Wisconsin does not have one), refusal to show ID in now way indicates guilt or deception. It is the mere exercise of 4th amendment rights - just like remaining silent is the mere exercise of 5th amendment rights.

Whenever an interaction occurs with a police officer, there is the possibility the situation will end up in civil court. It is important to realize this and to make sure, right from the beginning, that things are as much in your favor as possible. You need to take the action necessary to place the burden of proof onto the officer not on yourself.

Terry vs. Ohio was pertaining to a beat cop patrolling on foot. His experience and knowledge gave him reasonable suspicion that 3 subjects appeared to be casing a property, he approached them and ID'd himself as a cop, and was given identification by the three. The main source of reasonable suspicion in that case was the LEO could see bulges under the coats of the 3 subjects, AND those bulges could have been either tools of burglary and/or weapons. That followed was a "pat down" to determine if the bulges were tools/weapons. A "search" is when you are asked to remove outer garments like coats/hats/gloves/shoes, and your pockets are checked for weapons/sharps. The LEO in Terry vs. Ohio case found tools and a pistol to be on those persons. Now....

Traffic stops are MUCH different; A so-called "Terry Stop" on a vehicle would stereotypically be a scenario such as this: LEO on vehicle patrol spots a car driving around a warehouse at 3 AM, when there is no business going on. Reasonable suspicion that they are up to illegal activity gives the LEO legal grounds to make a stop and ask for your ID (drivers license)

weston502 said:

so the only thing stopping me from open carrying is im a little nervous about any contact with law enforcement. if they ask who i am do i have to identify myself? i read the law but am not sure.

Click to expand...

cowboyridn said:

I like how you answer his question backed up by court cases......thats the way to respond to a question!!


Cowboyridn

Click to expand...

And it's kind of a forum rule around these here parts.

(5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

Temporary questioning without arrest

968.24  Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.
968.24 History History: 1993 a. 486.

968.24 Annotation Suspicious behavior of a driver and passenger justified detention. State v. Goebel, 103 Wis. 2d 203, 307 N.W.2d 915 (1981).

968.24 Annotation A defendant's flight from a police officer may, using the totality of circumstances test, justify a warrantless investigatory stop. State v. Jackson, 147 Wis. 2d 824, 434 N.W.2d 386 (1989).
968.24 Annotation Actions suggesting to a reasonable police officer that an individual is attempting to flee is adequately suspicious to support an investigatory stop. State v. Anderson, 155 Wis. 2d 77, 454 N.W.2d 763 (1990).

968.24 Annotation The Terry rule applies once a person becomes a valid suspect even though the encounter was initially consensual; if circumstances show investigation is not complete, the suspect does not have the right to terminate it. State v. Goyer, 157 Wis. 2d 532, 460 N.W.2d 424 (Ct. App. 1990).

968.24 Annotation When a person's activity may constitute either a civil forfeiture or crime, an investigative stop may be performed. State v. Krier, 165 Wis. 2d 673, 478 N.W.2d 63 (Ct. App. 1991).

968.24 Annotation A "showup" where police present a single suspect to a witness for identification, often at or near a crime scene shortly after the crime occurs, is suggestive but not impermissibly suggestive per se. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996), 96-0168.

968.24 Annotation Detaining a person at his home, then transporting him about one mile to the scene of an accident in which he was involved, was an investigative stop and a reasonable part of an ongoing accident investigation. State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997), 97-0695.

968.24 Annotation That the defendant is detained in a temporary Terry stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant's position would have considered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998), 96-2588.

968.24 Annotation This section authorizes officers to demand identification only when a person is suspected of committing a crime, but does not govern the lawfulness of requests for identification in other circumstances. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, 98-0931.

968.24 Annotation A police officer performing a Terry stop and requesting identification could perform a limited search for identifying papers when: 1) the information received by the officer was not confirmed by police records; 2) the intrusion on the suspect was minimal; 3) the officer observed that the suspect's pockets were bulging; and 4) the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, 99-1686.

968.24 Annotation Under Florida v. J.L., an anonymous tip giving rise to reasonable suspicion must bear indicia of reliability. That the tipster's anonymity is placed at risk indicates that the informant is genuinely concerned and not a fallacious prankster. Corroborated aspects of the tip also lend credibility; the corroborated actions of the suspect need be inherently criminal in and of themselves. State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106, 96-1821.

968.24 Annotation An anonymous tip regarding erratic driving from another driver calling from a cell phone contained sufficient indicia of reliability to justify an investigative stop when: 1) the informant was exposed to possible identification, and therefore possible arrest if the tip proved false; 2) the tip reported contemporaneous and verifiable observations regarding the driving, location, and vehicle; and 3) the officer verified many of the details in the tip. That the tip reasonably suggested intoxicated driving created an exigency strongly in favor of immediate police investigation without the necessity that the officer personally observe erratic driving. State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, 98-3541.

968.24 Annotation When a caller identifies himself or herself by name, placing his or her anonymity at risk, and the totality of the circumstances establishes a reasonable suspicion that criminal activity may be afoot, the police may execute a lawful investigative stop. Whether the caller gave correct identifying information, or whether the police ultimately could have verified the information, the caller, by providing the information, risked that his or her identity would be discovered and cannot be considered anonymous. State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877, 00-2614.

968.24 Annotation It was reasonable to conduct a Terry search of a person who knocked on the door of a house while it was being searched for drugs pursuant to a warrant. State v. Kolp, 2002 WI App 17, 250 Wis. 2d 296, 640 N.W.2d 551, 01-0549.

968.24 Annotation Terry and this section apply to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. Reasonable suspicion is not a prerequisite to an officer's seeking consent to enter a private dwelling. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641 N.W.2d 474, 01-0904.

968.24 Annotation To perform a protective search for weapons, an officer must have reasonable suspicion that a person may be armed and dangerous. A court may consider an officer's belief that his, her, or another's safety is threatened in finding reasonable suspicion, but such a belief is not a prerequisite to a valid search. There is no per se rule justifying a search any time an individual places his or her hands in his or her pockets contrary to police orders. The defendant's hand movements must be considered under the totality of the circumstances of the case. State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, 02-1540.

968.24 Annotation The principles of Terry permit a state to require a suspect to disclose his or her name in the course of a Terry stop and allow imposing criminal penalties for failing to do so. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. 2451 (2004).

968.24 Annotation When the defendant's refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him, application of a criminal statute requiring disclosure of the person's name when the police officer reasonably suspected the person had committed a crime did not violate the protection against self-incrimination. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. 2451 (2004).

968.24 Annotation Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778.

968.24 Annotation The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578.

968.24 Annotation Cell Phone Tips of Crime and `Reasonable Suspicion.' Andregg. Wis. Law. June 2005.

968.24 Note NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.

968.25 968.25  Search during temporary questioning. When a law enforcement officer has stopped a person for temporary questioning pursuant to s. 968.24 and reasonably suspects that he or she or another is in danger of physical injury, the law enforcement officer may search such person for weapons or any instrument or article or substance readily capable of causing physical injury and of a sort not ordinarily carried in public places by law abiding persons. If the law enforcement officer finds such a weapon or instrument, or any other property possession of which the law enforcement officer reasonably believes may constitute the commission of a crime, or which may constitute a threat to his or her safety, the law enforcement officer may take it and keep it until the completion of the questioning, at which time the law enforcement officer shall either return it, if lawfully possessed, or arrest the person so questioned.

968.25 History History: 1993 a. 486.

968.25 Annotation An investigatory stop-and-frisk for the sole purpose of discovering a suspect's identity was lawful under the facts of the case. State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979).
968.25 Annotation A stop-and-frisk was not an unreasonable search and seizure. State v. Williamson, 113 Wis. 2d 389, 335 N.W.2d 814 (1983).

968.25 Annotation This section permits an officer to search the passenger compartment of a vehicle for weapons if an individual who recently occupied the vehicle is stopped under s. 968.24 and the officer "reasonably suspects that he or another is in danger of physical injury." State v. Moretto, 144 Wis. 2d 171, 423 N.W.2d 841 (1988).

968.25 Annotation Although Terry provides only for an officer to conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault him or her, under the circumstances of this case, the search was properly broadened to encompass the opening of the defendant's purse, which was essentially an extension of her person where the purse was accessible by her. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578.

weston502 said:

so the only thing stopping me from open carrying is im a little nervous about any contact with law enforcement. if they ask who i am do i have to identify myself? i read the law but am not sure.

Click to expand...

Sorry, I don't see how 345.22 relates to the discussion on stop & identify.
Enlighten me, please? It's late & I'm tired. And maybe I should eat something today.

weston502 said:

... contact with law enforcement. if they ask who i am do i have to identify myself?

Click to expand...

I think the answers kind of boil down to:
If you're doing something that requires a license (driving, or cc, or carrying either way in a place where only licensees can legally carry) you have to show the license if the officer demands it & has cause to think you're committing a crime.
How to determine that? Maybe ask "of what crime do you suspect me?".

Otherwise, generally no. Even if you're caught on video in the middle of a circle of witnesses, slicing someone up with a knife, you don't have to say a thing. (Actually, in a case like that, it's much better if you keep quiet.)

Identify yourself puny citizen

I am a meat Popsicle !

I may be mistaken, doesn't Act 35 require you to provide a law enforcement officer your CCW and drivers license if that LEO ask to see them? I do not remember any distinction between whether you are open carrying, or conceal carrying or not carrying at all. If I remember right that part was added to keep chief flynn happy.

Grizz272 said:

I may be mistaken, doesn't Act 35 require you to provide a law enforcement officer your CCW and drivers license if that LEO ask to see them? I do not remember any distinction between whether you are open carrying, or conceal carrying or not carrying at all. If I remember right that part was added to keep chief flynn happy.

Click to expand...

According to Act 35, (WI Statute 175.60(2g)(b)) you are not required to carry your CCW License unless you are actually carrying concealed.

175.60(2g)

(b) Unless the licensee or out-of-state licensee is carrying a concealed weapon in a manner described under s. 941.23 (2) (e), a licensee shall have with him or her his or her license document and photographic identification card and an out-of-state licensee shall have with him or her his or her out-of-state license and photographic identification card at all times during which he or she is carrying a concealed weapon.
175.60(2g)(c) (c) Unless the licensee or out-of-state licensee is carrying a concealed weapon in a manner described under s. 941.23 (2) (e), a licensee who is carrying a concealed weapon shall display his or her license document and photographic identification card and an out-of-state licensee who is carrying a concealed weapon shall display his or her out-of-state license and photographic identification card to a law enforcement officer upon the request of the law enforcement officer while the law enforcement officer is acting in an official capacity and with lawful authority.

Click to expand...

Grizz272 said:

I may be mistaken, doesn't Act 35 require you to provide a law enforcement officer your CCW and drivers license if that LEO ask to see them? I do not remember any distinction between whether you are open carrying, or conceal carrying or not carrying at all. If I remember right that part was added to keep chief flynn happy.

Click to expand...

Interceptor_Knight said:

According to Act 35, (WI Statute 175.60(2g)(b)) you are not required to carry your CCW License unless you are actually carrying concealed.

Click to expand...

As well as having a RAS. They can't just walk up to you and demand to see your CCL.

All OCers are suspected of nefarious intent, they are visibly armed. Now, it must be remembered that the above cited law re "stop and ID" is specific to a cop believing that you have nefarious intent. Otherwise you were caught in the act of knocking over a candy store, or the cop has PC that you knocked over a candy store. So, if the law is not clear on your legal behavior then the default option should be to make sure your recorder is functioning properly and let the cop do all the talking.

"Am I free to leave?" Anything other than a yes from the cop means that he is detaining you and the situation requires you to clam up. The cop will dig the hole deeper.

It is unfortunate that your "consensual encounter" may occur in a restaurant where you must choose to stay and finish your meal, or leave and have your meal ruined by a cop.

protias said:

As well as having a RAS. They can't just walk up to you and demand to see your CCL.

Click to expand...

If you are printing or the LEO otherwise sees that you are carrying concealed, that is enough justification.

Interceptor_Knight said:

If you are printing or the LEO otherwise sees that you are carrying concealed, that is enough justification.

Click to expand...

Cite, please.

For example, in VA I am pretty sure there is a court case where a moped rider was seized because the cop saw a bulge under his shirt and took it to be a gun--the court said it wasn't enough to justify the seizure if I recall. I estimate that sort of thing has come up in other states. In any event, you've made a declaration about the law on RAS/probable cause/licensed activity in your state, so a citation is appropriate.

Interceptor_Knight said:

If you are printing or the LEO otherwise sees that you are carrying concealed, that is enough justification.

Click to expand...

True, but that printing could just be a weird fold in the shirt. Of course, how many criminals use holsters or don't carry in the right front waist band?

cowboyridn said:

SNIP ...the first determination in court will be whether or not the subjects were actually formally detained by the officers or whether it was a consensual encounter. IF it is determined that the initial encounter was consensual - that the subjects agreed to talk to the officers - their case becomes more difficult. IF it is determined that the initial encounter was a "Terry Stop", then the next question becomes if the officers had reasonable suspicion to justify a Terry Stop...

So, if the officer asks you for ID and you immediately show it to him - now it is your word against his/her whether or not the encounter was consensual.

Click to expand...

A fast easy way to get more weight on your side is to just politely declare, "No offense, officer, I know you are just doing your job; but I do not consent to an ecounter with you." If this is the first thing an OCer says, it immediately establishes the nature of the encounter as non-consensual.

I got that idea from a VA court case. That appellate court wrote to the effect that 4th Amendment (search and seizure) case law recognized three types of police-citizen encounters: 1) consensual encounters, 2) brief minimally intrusive investigatory detentions based on articulable facts (Terry Stops), and 3) highly intrusive custodial arrests. I just applied logic that already existed. It is already understood that a person can refuse consent to a search or seizure during an encounter. It is no leap at all to apply consent to the encounter itself. If you refuse consent to the encounter at the very beginning, it cannot possibly be a consensual encounter from that moment forward.

If you think about it a little bit, it is obvious why the courts have to resort to figuring out whether a Terry Stop seizure of the person occurred by looking at how many cops, whether there was a show of authority, physical touching, tone of the cop's voice, words the cop actually said or didn't say, whether a reasonable person would feel free to leave, etc., etc., etc. The courts are using all these indirect indicators simply because the citizen did not make directly clear his consent or refusal himself.

So, the simplest thing one can do is to make these words the first thing he says, [politely], "No offense...but, I do not consent to an encounter with you, officer."

If you refuse consent to the encounter itself at the very beginning, it cannot possibly be a consensual encounter from that moment forward. This immediately throws the onus on the cop to have genuine RAS for a Terry Stop if he wants to continue the encounter. If the cop continues the encounter for even one more question or comment, just reinforce the refused consent to the encounter. For example, "I wish to be released and be on my way right this instant, officer."* And, just keep sprinkling that refusal among your other rights-exercising comments like "I wouldn't answer any questions without my attorney", or "I don't consent to any searches." Asking, "Am I free to go?" at various points along the way also helps establish that you want to leave; but its not as strong and clear.

Refusing consent to the encounter itself also undercuts and negates all the cute conversational tricks cops play on this point. For example, some OCers have asked if they were being detained and were told no. When they immediately then asked if they were free to leave they were also told no, revealing that the earlier no was designed to confuse or deceive the detainee into either talking or attempting to leave so the cop could physically grab him. If you refuse consent to the encounter, you take all that initiative out of the cop's hands.

Of course, if one wants to first find out why the cop is approaching him, the OCer can always wait a moment to hear what the cop has to say before refusing consent to the encounter. Maybe the cop is going to ask whether the OCer saw a certain child who is missing. We've never had such a reported encounter, but lets say. As soon as the OCer recognizes he is being investigated, he can refuse consent, "Oh, I see, officer. Well, sorry. I know you're just doing your job but I no longer consent to an encounter with you." In Miranda vs Arizona, the arrestee can stop answering custodial interrogation questions at any time. There is no reason an OCer's initial consent to an encounter cannot be revoked at any time.

Its important for new readers to understand that we're talking about a verbal refusal. Not a physical refusal. We're talking about consent (willingness), not enforcing that unwillingness by physical action.

Separately, I would repeatedly ask, "Am I free to leave?" But not to establish refused consent. I would ask it because I'm not giving the cops any excuses to physically grab me, throw me on the ground, and cuff me. I ain't budging until I have express permission to leave. I have read too many reports of cops playing word games during encounters and lying in pretrial hearings to risk giving them an excuse to manhandle me or arrest me for (obstruction?) if I try to leave. I'm going to assume I am seized if the cop continues the encounter for even one comment or question beyond my refused consent to the encounter.




*You never know, the cop might just hand you a Title 42 violation of rights. We recently had a report of a cop saying, "You'll be on your way as soon as you answer some questions." Yeehaw!!! Coercion to waive the Fifth Amendment right against self-incrimation/right to remain silent!! That will look real good in a formal written complaint or lawsuit, especially if you recorded the encounter.

cowboyridn said:

SNIP There is large argument about whether the subjects should show the officers a ID when asked. In a situation such as this, where there is no stop and ID law, where there is no reasonable suspicion of any crime being or about to be committed, it is important that you NOTshow ID to the officer during the initial encounter...

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Huh!?! Do you mean "its important to avoid showing ID willingly because it helps establish that you consented to the encounter"? If that is what you meant, fine. Its just that you picked a really confusing way to get that point, especially in light of the fact that RAS can be very complex, and its almost guaranteed the OCer will have no way to know for sure whether the cop has genuine RAS.

davidmcbeth said:

You'll talk ... lol

Really, just tell them you'll answer any ? in court. And say bye bye and walk away.

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This is short-sighted and selfish advice willing to get the reader into trouble without telling the reader it might get him in trouble.

Walking away from a cop who means to detain you may result in manhandling, handcuffs, and temporary seizure of your OCed gun.

McBeth knows this. He's been called out on this point before. He's all willing to see other people get into legal trouble; he's all willing to make that decision for them. At some point we have to conclude he's trying to get other people into unnecessary trouble.