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Thread: Am I being detained?

  1. #1
    Regular Member Obi Wan's Avatar
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    Am I being detained?

    Something has bothered me for quite some time.
    Let's see if I have this right...

    Most of the advice on this forum advocates that upon a law enforcement initiated encounter, the open carrier should immediately present the question: "Am I being detained?".

    This seems rather confrontational, and unnecessarily legalistic.

    But, there may be a very good reason to establish 'detainment' at the outset of an encounter.
    According to this news article, one can be arrested for not answering an officer's questions.

    http://news.thelaw.tv/2013/07/22/5-s...d-you-in-jail/

    "Crazy as it sounds, NOT answering a police officer’s questions could land you in jail for resisting an officer. Even though our Constitution says that you have a right to remain silent, that right only applies once you’ve been arrested. If a police officer is investigating a crime and asks you questions, you could get arrested if you refuse to cooperate with an investigation."

    Although I never trust news articles, this one seems to have some merit:

    RCW 66.44.370 Resisting or opposing officers in enforcement of title.

    "No person shall knowingly or willfully resist or oppose any state, county, or municipal peace officer, or liquor enforcement officer, in the discharge of his/her duties under Title 66 RCW, or aid and abet such resistance or opposition. Any person who violates this section shall be guilty of a violation of this title and subject to arrest by any such officer."


    So, the first sentence of the article, "NOT answering a police officer’s questions could land you in jail for resisting an officer", seems to be confirmed.

    Article 5 of the United States Constitution states in relevant part:
    "No person... shall be compelled in any criminal case to be a witness against himself..."

    And so, the first part of the second sentence, "Even though our Constitution says that you have a right to remain silent", seems to be confirmed.


    However, the second phrase of the second sentence, "that right only applies once you’ve been arrested", seems to have an internal conflict.

    If this is true, it would seem that one may be put in a position of being compelled to answer a question in violation of the 5th amendment, which provides a defense to self-incrimination.

    A recent decision of United States Supreme Court, Salinas v. Texas, indicates that remaining silent during pre-arrest questioning cannot be used as an indication of guilt.

    If it is acceptable to remain silent during pre-arrest, pre-custody questioning, to avoid self-incrimination, it does not follow that "that right [to remain silent] only applies once you’ve been arrested".

    Additionally, the courts are mixed on whether detainment qualifies as arrest.

    Courts have stated that '[i]n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)).

    Also, an arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88));

    Even so, the police are allowed to perform investigatory detainments in the pursuit of their activities, without formally arresting the detainee, and without advising the detainee of their right to remain silent. Berkemer v. McCarty, 468 U.S. 420 (1984).

    Therefore, it is indeed best to determine if one is being detained at the outset of an encounter.
    If it is determined that you are not being detained, since pre-arrest and pre-custody comments can be self-incriminating, the best advice is to immediately leave the encounter, without speaking another word.

    If it is determined that one is being detained, at the very least you should refuse to answer any questions.
    Unless, of course, you are required by law to identify yourself in that jurisdiction.

    But in any case, according to http://www.youtube.com/watch?v=6wXkI4t7nuc
    you should never agree to be interviewed by the police.

    Do I have this about right?

    Obi Wan

  2. #2
    Regular Member Vitaeus's Avatar
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    Good resource for research into where the RCWs and court cases apply...

    Best part is this is an official website with actual guiding opinions for Washington LEOs

    https://fortress.wa.gov/cjtc/www/ind...=137&Itemid=80

    Good article on contact...

    https://fortress.wa.gov/cjtc/www/ima...%2001%2013.pdf

  3. #3
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    Quote Originally Posted by Obi Wan View Post
    According to this news article, one can be arrested for not answering an officer's questions.
    One can be arrested for most anything the officer wills.

    Fortunately the officer and his department only recommend charges for the preliminary/probable cause hearing to sustain or substitute other charges or release without charge. But, unfortunately, as a local apologist has well taught us, "You may beat the rap, but you will not beat the ride." "Rap" as in rap sheet, "ride" as in the extra-legal harassment/punishment in the back-seat of the patrol car (remember the Black Maria?)
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Obi Wan View Post
    Something has bothered me for quite some time.
    Let's see if I have this right...

    Most of the advice on this forum advocates that upon a law enforcement initiated encounter, the open carrier should immediately present the question: "Am I being detained?".

    This seems rather confrontational, and unnecessarily legalistic.

    But, there may be a very good reason to establish 'detainment' at the outset of an encounter.
    According to this news article, one can be arrested for not answering an officer's questions.

    http://news.thelaw.tv/2013/07/22/5-s...d-you-in-jail/

    "Crazy as it sounds, NOT answering a police officer’s questions could land you in jail for resisting an officer. Even though our Constitution says that you have a right to remain silent, that right only applies once you’ve been arrested. If a police officer is investigating a crime and asks you questions, you could get arrested if you refuse to cooperate with an investigation."

    Although I never trust news articles, this one seems to have some merit:

    RCW 66.44.370 Resisting or opposing officers in enforcement of title.

    "No person shall knowingly or willfully resist or oppose any state, county, or municipal peace officer, or liquor enforcement officer, in the discharge of his/her duties under Title 66 RCW, or aid and abet such resistance or opposition. Any person who violates this section shall be guilty of a violation of this title and subject to arrest by any such officer."


    So, the first sentence of the article, "NOT answering a police officer’s questions could land you in jail for resisting an officer", seems to be confirmed.

    Article 5 of the United States Constitution states in relevant part:
    "No person... shall be compelled in any criminal case to be a witness against himself..."

    And so, the first part of the second sentence, "Even though our Constitution says that you have a right to remain silent", seems to be confirmed.


    However, the second phrase of the second sentence, "that right only applies once you’ve been arrested", seems to have an internal conflict.

    If this is true, it would seem that one may be put in a position of being compelled to answer a question in violation of the 5th amendment, which provides a defense to self-incrimination.

    A recent decision of United States Supreme Court, Salinas v. Texas, indicates that remaining silent during pre-arrest questioning cannot be used as an indication of guilt.

    If it is acceptable to remain silent during pre-arrest, pre-custody questioning, to avoid self-incrimination, it does not follow that "that right [to remain silent] only applies once you’ve been arrested".

    Additionally, the courts are mixed on whether detainment qualifies as arrest.

    Courts have stated that '[i]n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)).

    Also, an arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88));

    Even so, the police are allowed to perform investigatory detainments in the pursuit of their activities, without formally arresting the detainee, and without advising the detainee of their right to remain silent. Berkemer v. McCarty, 468 U.S. 420 (1984).

    Therefore, it is indeed best to determine if one is being detained at the outset of an encounter.
    If it is determined that you are not being detained, since pre-arrest and pre-custody comments can be self-incriminating, the best advice is to immediately leave the encounter, without speaking another word.

    If it is determined that one is being detained, at the very least you should refuse to answer any questions.
    Unless, of course, you are required by law to identify yourself in that jurisdiction.

    But in any case, according to http://www.youtube.com/watch?v=6wXkI4t7nuc
    you should never agree to be interviewed by the police.

    Do I have this about right?

    Obi Wan
    A few points. First of all, under WA case law, it's very rare for there to be a charge for refusing to answer questions/speak

    WA does not have a stop and ID statute, so if you are terry stopped you are under no obligation to provide name, etc. If stopped on a traffic stop, or for a civil infraction of any sort (pedestrian violation, etc.) you are required to provide your name.

    Not answering that question could get you arrested, although a GOOD officer will give you ample warning e.g. "if you don't tell me your name, you will be arrested" or something like that. That is good practice and consistent with verbal judo principles

    Not answering a question could get you in trouble if you are for example, harboring a fugitive and refuse to say where they are at ... you could get arrested for rendering criminal assistance, and stuff like that

    You can never be compelled to answer any question that would incriminate YOU of course. For example, you have to give name, and other info if involved in a collision, but you do not have to give an account of what happened in the collision, as either a driver or a passenger. The former could incriminate you. The latter, they can get a material witness warrant, etc. subpoena etc. but in the field I don't think you could get in trouble for refusing to say what you observed.

    Personally, as a LEO I have no problemo with the "am I being detained " question. Any LEO who is bothered by that question needs to man up or get another job. I welcome that question.

    I disagree with the refusing to get interviewed by the police. First of all, if you are a witness to a crime, you can help them catch a bad guy. That's a moral obligation imo. At least if it's a real crime, and not a victimless crime like drug use.

    If you are a suspect and you are innocent and can offer alibi info or other exculpatory info imo and ime you are a moron if you refuse to divulge that stuff. In many cases, what you say will prevent an arrest. I have seen that happen copuntless times in the field. The laypublic isn'[t aware of such incidents since those incidents never become court cases (no charge or arrest) so you never hear about them.

    Depends what you mean by interview. If it's a formal interview and/or custodial interrogation, there is good reason to say "I wil give a brief account of what happened, but I want my lawyer here before I submit to formal questioning. I am willing to submit to questioning, I just want my lawyer first"

    I've had people in obvious self defense cases agree to be interviewed without an attorney (no charges preferred) and I've had some do the above mentioned thing

    "arrest" can mean many things. Under one definition, ANY seizure is an arrest. But what most people mean when they think of arrest is "formal" or "custodial" arrest which means you are going to be booked.

    For the purpose of miranda, where custody and interrogation require miranda, a lot less than a formal custodial arrest can trigger miranda requirements. For example, unecessary display of weapons (like in a shoplifting investigation or other nonviolent crime), excessive # of officers on the scene and all kinds of stuff can turn an investigative seizure into an arrest FOR THE PURPOSES OF MIRANDA requirements even though it's not a formal arrest. The basic metric is a reasonable person would have to believe there liberty is being restrained TO THE EXTENT consistent with a formal arrest.

    I've had my miranda and choice not to miranda challenged in literally scores of motion hearings and I've never lost ONE (in WA. I lost one in HI), so I am "arguing from authoritah" . I know my WA miranda law inside and out. Sadly, some district and municipal court judges DO NOT, but ime superior court judges always do. For example, miranda is only supposed to be required for testimonial evidence, but I have seen one judge who believes it's required if the person is arrested and taken to the station and then asked to do FST's. Since FST's aren't testimonial, it shouldn't require miranda, but in misdemeanor court, you take what you can get and err on the side of caution imo

    I know a LOT of officers who "over mirandize" (miranda when not necessary) because they'd rather err on the side of caution and miranda when not required, then screw up and not miranda WHEN required and lose a bunch of evidence. Fair enuf

    I went into a long wank on miranda, excuse me for that

    Remaining silent can never be used as an indicator of guilt or in most cases EVEN MENTIONED to the jury.

    However, IN THE FIELD, remaining silent and/or for example refusing to do FST's *can* be used to help establish PC. That's a nuance many people miss. WHat is admissible to develop PC is MUCH broader than what is admissible as direct evidence (or rebuttal evidence) in court.

    A classic obvious example is if I catch a guy trying to break into a car. That's RAS not PC because he may have locked himself out of his own car (and I've had that exact scenario). If I ask him "whose car is this?" and he remains silent, that can add to PC (that he doesn't know whose car it is so he has no permission), whereas if it's his girlfriend's car he borrowed and he locked himself out (had that scenario) an innocent would divulge that and give me her phone # so I can confirm his story (had that happen too)

    I am confident most people here WILL say never agree to an intervbiew (or interrogation) with the police. I once had a DEFENSE ATTORNEY not only agree to an interrogation after arrest, but he provided a formal written statement. Because of that statement, I did not arrest him (it provided substantial doubt that he was guilty) and when I got the formal decline from the prosecutor's office, they cited the information divulged in his statement as their reason for not preferring charges. So clearly it benefitied him, and he's a lawyer, exactly the person who would CLAIM never agree to an interview w/o a lawyer present. Clearly he knew better

    I've never had a problem with cops in WA while OCing, but my understanding is in some jurisdictions where it's legal, cops can be a major hassle.

    I always recommend recording encounters with cops, whether audio or audio and video. WA is two party consent, but that only refers to "private conversations" and interaction with a LEO in any sort of official capacity is clearly not private conversation and doesn't require notification

    Case law is clear they do not have a right to seize the recording OR the recording device nor do cops have any right to refuse your right to record them.

    PERIOD

    cheers

  5. #5
    Regular Member Alpine's Avatar
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    If you are a suspect and you are innocent and can offer alibi info or other exculpatory info imo and ime you are a moron if you refuse to divulge that stuff. In many cases, what you say will prevent an arrest. I have seen that happen copuntless times in the field. The laypublic isn'[t aware of such incidents since those incidents never become court cases (no charge or arrest) so you never hear about them.
    http://www.youtube.com/watch?v=6wXkI4t7nuc

    This law professor and this police officer vehemently disagree that ever talking to the police can ever help you, unless you are the ones that called them.

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    Quote Originally Posted by Alpine View Post
    http://www.youtube.com/watch?v=6wXkI4t7nuc

    This law professor and this police officer vehemently disagree that ever talking to the police can ever help you, unless you are the ones that called them.
    They are wrong. I have seen that video cited before. I really don't care if people believe me or don't believe me. I know when I was stopped by the police and I was innocent it helped me. I know that literally dozens of times in the field and at the station house, it has helped people.

    For example, it got that lawyer out of both arrest and charges.

    I have discussed this with defense attorneys before and the last one admitted that he always tells his clients never to talk but admitted that if he KNEW his client was innocent AND his client was smart enough not to say somethijhng stupid that could get him in trouble (most of his clients he admits are morons) that it would be ok to talk to police. He also admitted his clients are almost always guilty. lol. ime, I love defense attorneys and get them out of court and they are salt of the earth and quite honest. I also love them IN court and I have never been treated unfairly by a defense attorney. Total respect for what they do

    Again, I'll give you the most obvious example. Your gf loans you her car. You lock yourself out. You are in the process of coat hangering your way back in when a cop detains you for RAS that you are prowling the car. Do you say nothing? If so, you are a moron and will likely be arrested, unless he can find some phone # for the RO (unlikely since cell phones aren't listed #'s).

    Answer that question. Would you say anything?

    In the case where I was terry stopped for RAS of armed robbery, at gunpoint, should I have provided exculpatory info that I had just come from taco bell (which was the opposite direction from the crime scene and I had a receipt to prove it)?

    You can believe what you want. I already conceded most people here would not agree with me on that point. I know from personal experience n=hundreds that it's simply not true, that in some cases talking can help you. Another example is when you are guilty as hell, but you are smart enough to allay suspicion. I can think of a serial killer that did exactly that.

    There;s also a third scenario... where admitting to something means the cop cuts you a break and gives you a verbal warning. Some cops, myself included, will reward honesty. I have had cases (minor crimes) where I have cut people a break BECAUSE they were honest and contrarily cited people with ample PC when they were full of poop

    Regardless, I'm not interested in arguing this point further, because it always results in endless internet debates that accomplish nothing. I *know* in certain circs I will talk to police, and I *know* that doing the same has helped countless people avoid arrest, charges, a cite or whatever.

    Here's my final say on this topic. It's an individual choice. If *you* don't think you should do it, then don;'t do it,. It;'s entirely your decision. You make your decision and you reap your rewards or pay your cost. Either way, think for yourself and do what you think is right!

    cheers

  7. #7
    Regular Member Alpine's Avatar
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    In your experience have you ever had someone talk themselves into being arrested?

    The other thing I see as very valid is that people will get nervous and get a detail wrong or remember things incorrectly which may trigger RAS or PC.

    Not trying to be confrontational, just curious.

  8. #8
    Regular Member Fallschirmjäger's Avatar
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    You noticed right off two rather glaring errors, 1) that you were required to answer any and all questions before arrest and that the right to not testify against yourself only applies after arrest, and 2) "Resist or oppose" is Not the same as 'not cooperating'.


    1) If the right not to testify only applied after being arrested then all an officer would have to do is Not arrest a suspect until he had completed his investigation and interrogation, "Did you rob that bank?" or "Did you rape that woman?" As making a false statement is a crime in almost any jurisdiction then one has only the choice of answering truthfully and admitting to a crime, or not answering at all which ... would be a crime according to the logic used. There ARE instances in which you are required to make a truthful reply, but those instances are spelled out in the law.

    2) A classic definition of resist is: To strive to fend off or offset the actions, effects, or force of. A classic definition of oppose is: To be in contention or conflict with: You will note both of these require conscious actions.
    In contrast not cooperating is: Failure or refusal to cooperate, esp. as a form of protest.
    Remember all those demonstrators that went limp when arrested by the police at various protests? Limpness or non-cooperation is not the same as resistance and therefor the (for the most part) arrestees were safe from being charged with 'resisting arrest.'

  9. #9
    Regular Member GreatWhiteLlama's Avatar
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    Quote Originally Posted by PALO View Post
    *snip*

    Personally, as a LEO I have no problemo with the "am I being detained " question. Any LEO who is bothered by that question needs to man up or get another job. I welcome that question.

    *snip again*

    I always recommend recording encounters with cops, whether audio or audio and video. WA is two party consent, but that only refers to "private conversations" and interaction with a LEO in any sort of official capacity is clearly not private conversation and doesn't require notification

    Case law is clear they do not have a right to seize the recording OR the recording device nor do cops have any right to refuse your right to record them.

    PERIOD

    cheers
    So, you're saying this isn't you: http://www.youtube.com/watch?v=BR-5V...layer_embedded

    Second part: http://bambuser.com/ Keep your phone password protected and this will record even when black-screened and locked. It will help keep your vids from being deleted 'accidentally'.

    I'm glad you're posting on here PALO. You give a lot of good insight.
    "...our media are palace eunuchs gazing avidly at the harem of power and stroking their impotent pens in time to the rape of our liberties."
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    "America is at that awkward stage; it's too late to work within the system, but too early to shoot the bastards."
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  10. #10
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    Quote Originally Posted by Alpine View Post
    In your experience have you ever had someone talk themselves into being arrested?

    The other thing I see as very valid is that people will get nervous and get a detail wrong or remember things incorrectly which may trigger RAS or PC.

    Not trying to be confrontational, just curious.
    OH, absolutely! The most obvious example was the guy I terry stopped once and of course in WA he is not legally obligated to provide his name. He refused. I said "why wouldn't you want to give me your name?". A valid question he was under no obligation to answer. he said "because I have warrants"

    duh

    NOW, I had PC. I placed him under arrest. I could book him as a john doe and wait for the fingerprint to come back or he could tell me his name. At least in the latter case, there's a CHANCE he was wrong. He thought about it and gave me his name. He had warrants.

    I had a case with a guy, convicted felon who had a flare gun under his seat. That's a firearm and he was thus committing VUFA. Upon questioning, he admitted it was his, and that he used it for protection. He literally made my case for me.\

    I appreciate the q\uestion

    One situation where it is often beneficial to talk to the police is DV investigations. I can't count how many times I have ended up arrested the COMPLAINANT, the person who called because the SUSPECT was able to provide PC and exonerate himself. It is not at all uncommon

    I had a case with an assualt once where a guy claimed the other guy assaulted him. The guy was able to provide paperwork that showed that he had evicted the assaultee the previous night, and thus the complainant was trespassing and he was thus allowed to use reasonable force (that otherwise would be an assault) to eject him. I would not have known that if he wouldn't have spoken up.

    The car scenario I gave actually happened.

    Tons of scenarios, probably one or two a week (at least) where people who are at least under reasonable suspciion if not PC, are able to "explain away" the suspicion and get released.

    I think a valid point is that if you are custodially arrested, and there is a mountain of evidence against you, there may be very good reason not to talk to police until you get a lawyer. What you don;'t want to do is lie. Because if you get caught in a lie , that shreds your future credibility and that can be used against you.

    But back to your original question, it is VERY common for dumbasses to talk their way INTO handcuffs when if they had just shut up shutting up (per yosemite sam) we wouldn't have jack on them and they never would have gotten arrested. THAT scenario is also exceedingly common, which is why I TOTALLY understand why a defense attorney would give the mentioned advice. He's seen one too many times his clients (who per his off record admission USUALLY are guilty) talk their way into jail and.or talk their way into a case that is provable where it never would have gone to court if they just shut the hell up

    The other argument for not talking is anything you COULD say at the scene, you can say later with an attorney but at least you'll have the opp for him to vet the testimony. that's good reason to wait. EXCEPT do you really want to get arrested when you can talk your way out of arrest, so it applies better if you've BEEN arrested and taken to the station, you are not going to get unarrested (although I've done it as in the lawyer case), so better to wait.

    Also, if suspicion points to you at the scene but there is a witness present NOW you can point the cops too who can vouch for you and provide evidence you are innocent, why would you not say anything, get arrested ,and risk the chance that witness can't be found?

    Stuff like that

    I appreciate the good faith question and again Ill say it is entirely your decision. And if you are guilty as hell, like the arsonist I didn'[t even have RAS on, but who admitted to three arsons after an hour of interrogation, then CLEARLY don't say anything!

    That much is clear!

    cheers

  11. #11
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    For those who doubt me I just point to the car prowl example, which ACTUALLY HAPPENED and thus is not some impossible scenario and ask you what would you do?

    Would you give them your explanation with your gf's name and # and NOT get arrested or would you be silent and get arrested . You wouldn't get CONVICTED because of course eventually they WOULD contact the RO and find out you weren't a perp but why spend the night in jail for no reason?

    I discussed this issue with attorney at volokh.com years back and even they, some of the top attorneys in the country conceded that;'s an example where you'd be an idjit not to talk to police

    I am NOT TALKING about where you are being booked and asked to submit to interrogation. In THAT scenario you have probably NOTHING to gain by not waiting for an attorney. We can DEFINITELY agree on that. But those aren't the scenarios presented. I'm talking about IN THE FIELD during threshold inquiry or even after field arrest but well before booking, such as the lawyer who gave the statement example,.

    Can anybody honestly answer in the car prowl example that you shouldn't talk to police? Anyone?

    Bueller?

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    Quote Originally Posted by GreatWhiteLlama View Post
    So, you're saying this isn't you: http://www.youtube.com/watch?v=BR-5V...layer_embedded

    Second part: http://bambuser.com/ Keep your phone password protected and this will record even when black-screened and locked. It will help keep your vids from being deleted 'accidentally'.

    I'm glad you're posting on here PALO. You give a lot of good insight.
    I appreciate the comment.

    People may not agree with me. That's groovy. I only lose interest when people question my credibility. I've had 20+ yrs of this stuff. Trust me, I don't have to make stuff up. 20 yrs on, you have seen almost anything you can imagine in the field.

    The best way to record is those devices/programs that automatically upload the stuff being recorded. Those are cop-proof.

    Good cops should WANT to be recorded. If you are doing the right thing, it can only protect you. I realize many cops who are doing the right thing still don't like it because ... well. they don't want to be recorded, be on youtube, etc.

    I just gotta say again. Tuff. You are a peace officer, a public officer.

    Anyways, cheers. I'm here because I advocate OC and because I know there are people here OTHER than the anticop trolls who do appreciate another pov.

    cheers

  13. #13
    Campaign Veteran skidmark's Avatar
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    RCW 66.44.370 Resisting or opposing officers in enforcement of title.

    "No person shall knowingly or willfully resist or oppose any state, county, or municipal peace officer, or liquor enforcement officer, in the discharge of his/her duties under Title 66 RCW, or aid and abet such resistance or opposition. Any person who violates this section shall be guilty of a violation of this title and subject to arrest by any such officer."
    Let's start with the fact that the cited law concerns liquor laws - not anything else!

    http://apps.leg.wa.gov/rcw/default.aspx?cite=66

    Title 66 RCW
    ALCOHOLIC BEVERAGE CONTROL
    RCW Dispositions
    Chapters
    66.04 Definitions.
    66.08 Liquor control board -- General provisions.
    66.12 Exemptions.
    66.16 State liquor stores.
    66.20 Liquor permits.
    66.24 Licenses -- Stamp taxes.
    66.28 Miscellaneous regulatory provisions.
    66.32 Search and seizure.
    66.36 Abatement proceedings.
    66.40 Local option.
    66.44 Enforcement -- Penalties.
    66.98 Construction
    The crimes are "resisting" or "opposing" an officer in the discharge of their duty in enforcing the Washington liquor laws. Those are active behaviors that intentionally seek to prevent the officer from discharging their duty in enforcing the Washinmgton liquor laws.

    Now let's look at resisting arrest and obstruction of justice:

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.76.040
    RCW 9A.76.040
    Resisting arrest.
    (1) A person is guilty of resisting arrest if he or she intentionally prevents or attempts to prevent a peace officer from lawfully arresting him or her.

    and

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.76.020
    RCW 9A.76.020
    Obstructing a law enforcement officer.
    (1) A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.
    For example, I can "resist" being placed in custodial arrest by running away, or by fighting so as to prevent handcuffs being applied, or struggling so as to prevent being placed in the back of a squad car. There are other examples, but we can stick with the more obious ones.

    I can "obstruct" an officer by verbally instructing/encouraging people not to disburse when the cop has told people to leave the scene. Or, at the opposite end of that spectrum, by instructing/encouraging pleople to leave when the officer says to stick around. I can "obstruct" an officer in the discharge of their duty by arguing with them regarding whether or not they have the authority under the law to do whatever it is they are doing. I can "obstruct" by placing myself in the way of an officer who is attempting to go somewhere, or get into/out of a space, or the like.

    Refusing to give my name is not resisting or obstructing an officer in the discharge of their duty. They can arrest me, carry me down to the stationhouse, and send my fingerprints off to see if they match any prints on file. While they are waiting for the results to come back I can be booked as a John Doe.* Refusing to tell an officer where certain physical items of evidence are located is not resisting or obstructing. The officer can get down on his hands and knees and look for it all he wants. I am not resisting or obstructing an officer in the discharge of his duty by refusing to point out/name a person I in fact observed do a certain action. The cops can interview others or assemble other information in order to establish the identity of the actor.

    All of these behaviors do nothing to make the cop's job easier. But I have no obligation to make a cop's job easy/easier. And they are neither resisting or obstructing.

    stay safe.

    * - Remember, the goal of the officer was to arrest me. He did that without knowing my true name.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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  14. #14
    Regular Member Obi Wan's Avatar
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    Palo:

    Thanks for your insight. It agrees with my intuition.
    Sometimes it is good to speak up.
    That might be a very small percentage of law enforcement encounters,
    but your examples provide credible situations where it is a good idea.

    Skidmark:
    Thanks for the correct cite. I had missed that.

    Obi Wan

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    Quote Originally Posted by Obi Wan View Post
    Palo:

    Thanks for your insight. It agrees with my intuition.
    Sometimes it is good to speak up.
    That might be a very small percentage of law enforcement encounters,
    but your examples provide credible situations where it is a good idea.

    Skidmark:
    Thanks for the correct cite. I had missed that.

    Obi Wan
    Thank you, Fwiw I think these encounters are actually pretty common, they just never make it beyond "the street" in almost all instances. Iow, the cop investigates, realizes it's either not a crime, or the person isn't the actor and goes on his merry way. Usually, as with most Terry Stops, there is not even a police report to document that it ever happened.

    I appreciate your comment and hope you can use the insight if you ever have to deal with the police.

  16. #16
    Regular Member SFCRetired's Avatar
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    Same thing I said in another thread: As long as law enforcement is not under the same mandate to be truthful to me as I am to be truthful to them, I have nothing to say to them other than, "Why am I being detained?" should they approach me. That does not mean that I will not exchange a cheerful "Good morning" or "Good day" with them. But very little beyond that.
    "Happiness is a warm shotgun!!"
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  17. #17
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    Quote Originally Posted by SFCRetired View Post
    Same thing I said in another thread: As long as law enforcement is not under the same mandate to be truthful to me as I am to be truthful to them, I have nothing to say to them other than, "Why am I being detained?" should they approach me. That does not mean that I will not exchange a cheerful "Good morning" or "Good day" with them. But very little beyond that.
    Imo, that's suboptimal in situations where they have PC to arrest you. Those are the specific situations I am referring to. There are many situations, such as the car prowl example where IF you talk to police you are NOT going to jail , but if you don't say anything, you ARE. Imo, I'd rather not go to jail, so I;m going to pipe up if I can help myself by doing so. Those situations are not that uncommon.

    The other situation where I would want to talk is if I have information about a crime that just occurred. Iow, if I am a witness, I WANT them to catch the bad guy, so if I saw him run "that a way", I will say 'hey, he ran that a way'

    Seems like a good policy to me.

    I think those are two situations where it benefits you (in the former case) or society (in the latter case) to talk to them

  18. #18
    Regular Member hermannr's Avatar
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    Quote Originally Posted by PALO View Post
    I appreciate the comment.

    People may not agree with me. That's groovy. I only lose interest when people question my credibility. I've had 20+ yrs of this stuff. Trust me, I don't have to make stuff up. 20 yrs on, you have seen almost anything you can imagine in the field.

    The best way to record is those devices/programs that automatically upload the stuff being recorded. Those are cop-proof.

    Good cops should WANT to be recorded. If you are doing the right thing, it can only protect you. I realize many cops who are doing the right thing still don't like it because ... well. they don't want to be recorded, be on youtube, etc.

    I just gotta say again. Tuff. You are a peace officer, a public officer.

    Anyways, cheers. I'm here because I advocate OC and because I know there are people here OTHER than the anticop trolls who do appreciate another pov.

    cheers
    I find these discussions very interesting. I have OC for 43 + years now, and have never (not once) had an encounter that is contrary to what PALO has stated as the way it is. I have had 3 verbal encounters with LE while they were on duty, about my carry..and not one time was I ever asked my name, where I lived etc. One time you could say I was asked what I was doing when I was coming out of a grocery store, if the question "Hunting?" (the only word spoken directly to me by the deputy) fits that definition.

    My answer was "Yep" and encounter ended. If I had wanted to be confrontational, I'm sure I could have prolonged the contact.

    I do not carry a recording device, but if I were a LEO I would think it would be fine to encounter a person with one. After the fact, just listen to the recording, arguments of fact as to what transpired are there... no muss no fuss.

    Look at what Spokane wants to do. Personal recording devices on the person of all officers. Why? Well things like the Karl Thompson case would be simple if Karl had been wearing a recording device, you think? Maybe he would have thought twice before doing what he did. It's for everyone's protection, the officer and the individual encountered.

    Are their bullies out there that may try to push their weight around, but in my 65+ years of life I have yet to meet one. (and I OC all the time I am not at home)

  19. #19
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    Not sure what the Spokane's proposal is for with regards to recording devices, they only matter if you keep the recordings or put in mandatory penalties for "losing" the recordings. We saw Seattle PD "lose" over 100,000 recordings before the federal audit.

    PALO, just curious, what is the general consensus among the majority of your fellow LEOs with regard to OC? How do most of them feel about it? What is their response when encountering it? I apologize if you've answered this elsewhere on the forum, I didn't see it when looking through your other posts.
    Last edited by Alpine; 08-06-2013 at 08:05 PM.

  20. #20
    Regular Member Freedom1Man's Avatar
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    The line I, now, use is "Am I free to leave?"

    I shocked an officer when those were the first words out of my mouth to him after he stopped me for OC in Bremerton. I then asked how to legally cross the street I was on so as to not be ticketed.

    That was about the extent of the conversation other than a thanks for the info about crossing the street.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

  21. #21
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    Quote Originally Posted by Freedom1Man View Post
    The line I, now, use is "Am I free to leave?"

    I shocked an officer when those were the first words out of my mouth to him after he stopped me for OC in Bremerton. I then asked how to legally cross the street I was on so as to not be ticketed.

    That was about the extent of the conversation other than a thanks for the info about crossing the street.
    He stopped you for OC? Did he actually tell you that?

    That's messed up, if so.

    I oc in WA and the case law is crystal clear. They can't stop you for OC. I'd be contacting the chief if it happened to me.

    I think it's funny he was shocked. I get that question maybe once every coupe of weeks. Granted,I am totally kewl with it.

  22. #22
    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by PALO View Post
    He stopped you for OC? Did he actually tell you that?

    That's messed up, if so.

    I oc in WA and the case law is crystal clear. They can't stop you for OC. I'd be contacting the chief if it happened to me.

    I think it's funny he was shocked. I get that question maybe once every coupe of weeks. Granted,I am totally kewl with it.
    Yes, he was making contact for OC only. He started out claiming to support the 2nd Amendment, yada yada.... Claimed he wanted to make sure my friend and I were not some of the local known bad guys... I figured if he didn't know me then I was not a known anyone. Period.


    I was arrested by Snohomish County Deputies for OC. They wanted to know who I was and I asked them to cite a law requiring me to answer their questions.
    I was then charged with obstruction of an officer or obstructing an officer. The public pretender implied that she wanted me to take plea deal. I told her not only no but hell no and that she had better do her job. A few, too many, court visits later and the charges were dropped.

    PALO, I still think we could talk, it would be nice to have a positive encounter even with an off duty cop.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

  23. #23
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    Quote Originally Posted by Freedom1Man View Post
    Yes, he was making contact for OC only. He started out claiming to support the 2nd Amendment, yada yada.... Claimed he wanted to make sure my friend and I were not some of the local known bad guys... I figured if he didn't know me then I was not a known anyone. Period.


    I was arrested by Snohomish County Deputies for OC. They wanted to know who I was and I asked them to cite a law requiring me to answer their questions.
    I was then charged with obstruction of an officer or obstructing an officer. The public pretender implied that she wanted me to take plea deal. I told her not only no but hell no and that she had better do her job. A few, too many, court visits later and the charges were dropped.

    PALO, I still think we could talk, it would be nice to have a positive encounter even with an off duty cop.
    Well, imo he may support the 2nd amendment but he's ignorant as heck on how it applies ... because we both know you can't stop somebody to SEE if you are a bad guy. That kind of comes BEFORE the stop,. nu?

    The idea is pretty ridiculous too. In my entire career I've never seen a convicted felon or anybody else legally prohibited from carrying a firearm who was carrying openly. That would be, as we say in Rhode Island, Wicked Retahded. Seriously. If you see a guy OC'ing, you can be about 99 9/10 certain that they are NOT a bad guy. It's about as certain an indicator of law abidingness as if he's a 70 yr old retired mormon accountant.

    And the Sno county thang is obviously messed up too, but at least you stuck to your guns, no pun intended. How long ago was the Sno County thing? Ime, cops are a LOT better on OC now than they were even a few years ago - roll call training, etc.

    That's why I recommend if your local PD doesn't have a policy or training vis a vis open carriers, recommend they get some or volunteer to come in and do the training yourself. No PD in WA state has any excuse in August of 2013 to not know the law on OC'ing.

    Talking is cool. I've been known to talk
    Cheers

  24. #24
    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by PALO View Post
    Well, imo he may support the 2nd amendment but he's ignorant as heck on how it applies ... because we both know you can't stop somebody to SEE if you are a bad guy. That kind of comes BEFORE the stop,. nu?

    The idea is pretty ridiculous too. In my entire career I've never seen a convicted felon or anybody else legally prohibited from carrying a firearm who was carrying openly. That would be, as we say in Rhode Island, Wicked Retahded. Seriously. If you see a guy OC'ing, you can be about 99 9/10 certain that they are NOT a bad guy. It's about as certain an indicator of law abidingness as if he's a 70 yr old retired mormon accountant.

    And the Sno county thang is obviously messed up too, but at least you stuck to your guns, no pun intended. How long ago was the Sno County thing? Ime, cops are a LOT better on OC now than they were even a few years ago - roll call training, etc.

    That's why I recommend if your local PD doesn't have a policy or training vis a vis open carriers, recommend they get some or volunteer to come in and do the training yourself. No PD in WA state has any excuse in August of 2013 to not know the law on OC'ing.

    Talking is cool. I've been known to talk
    Cheers
    Sno. Co. Was just about 16 months ago.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

  25. #25
    Regular Member hermannr's Avatar
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    Quote Originally Posted by PALO View Post
    Well, imo he may support the 2nd amendment but he's ignorant as heck on how it applies ... because we both know you can't stop somebody to SEE if you are a bad guy. That kind of comes BEFORE the stop,. nu?

    The idea is pretty ridiculous too. In my entire career I've never seen a convicted felon or anybody else legally prohibited from carrying a firearm who was carrying openly. That would be, as we say in Rhode Island, Wicked Retahded. Seriously. If you see a guy OC'ing, you can be about 99 9/10 certain that they are NOT a bad guy. It's about as certain an indicator of law abidingness as if he's a 70 yr old retired mormon accountant.

    And the Sno county thang is obviously messed up too, but at least you stuck to your guns, no pun intended. How long ago was the Sno County thing? Ime, cops are a LOT better on OC now than they were even a few years ago - roll call training, etc.

    That's why I recommend if your local PD doesn't have a policy or training vis a vis open carriers, recommend they get some or volunteer to come in and do the training yourself. No PD in WA state has any excuse in August of 2013 to not know the law on OC'ing.

    Talking is cool. I've been known to talk
    Cheers
    FBI did a study a few years back that said exactly that: Those with ill intent do not openly carry their weapons until they wish to use them illegally.

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