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Thread: OCers and Consensual Stops--More Devil in the Details

  1. #1
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    OCers and Consensual Stops--More Devil in the Details

    Regarding police encounters with OCers and the Fourth Amendment, the devil is in the details.

    In Ohio, police testimony in a certain case emphasized the defendant was trying to evade them. The prosecutor argued the stop was consensual. The trial court refused to suppress the marihuana found. The Ohio Court of Appeals was having none of it. Think about it--the police are saying the guy was trying to avoid them, then want to claim it was a consensual encounter. Huh?? What could be more clear that the guy didn't want to have an encounter than the fact that he was avoiding the police??? Trying to have their cake and eat it, too?

    On a quick skim, I did not see a prosecution claim that evasion/avoidance constitutes reasonable suspicion. I've seen a few cases where flight from police is itself sufficient for reasonable suspicion for the police to detain someone.

    Thus my comment about the devil being in the details. Part of the police testimony in this case is that the defendant would have been running from the police during a certain period he was out of sight behind buildings. But, unless I missed it, the prosecution did not try the flight-suspicion argument.

    So, the overall lesson for OCers may be that you may be able to reinforce your position that the encounter was not consensual by trying to avoid the encounter in the first place. This could be a little tricky. I'm not a big advocate of walking away from a cop who is engaging me--too many reports of cops pretending a consensual encounter when they meant to detain; I don't wanta give them an excuse to grab me and prone me out by walking away from them once the encounter has begun.

    But, if I can clearly demonstrate avoiding or walking away from them before contact, I may be able to reinforce the nonconsensual nature of the encounter.

    pdf of the decision: http://www.supremecourt.ohio.gov/rod...-Ohio-2931.pdf

    I found out about it here: http://fourthamendment.com/
    Last edited by Citizen; 07-26-2015 at 12:58 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Regular Member sudden valley gunner's Avatar
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    There was a case in Washington I do not remember its name, the courts ruled flight alone does not justify a detention.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  3. #3
    Regular Member 1245A Defender's Avatar
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    Well,,,

    Quote Originally Posted by sudden valley gunner View Post
    There was a case in Washington I do not remember its name, the courts ruled flight alone does not justify a detention.
    State V. Black


    cops often act like dogs,,, they like to think that trying to aviod them,
    or that running away from cops is automatic proof of RAS,,,
    they just dont know of What crime they have RAS Of...
    Sooo they chase and stop evaders and runners as SOP.

    Black was a felon, with drugs, and a gun,,, but the cops didnt know that,,
    Until,, he was caught and searched!
    Illegally!
    The search was tossed out by the court, all charges dropped...
    Last edited by 1245A Defender; 07-27-2015 at 02:44 AM.
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

  4. #4
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by 1245A Defender View Post
    State V. Black


    cops often act like dogs,,, they like to think that trying to aviod them,
    or that running away from cops is automatic proof of RAS,,,
    they just dont know of What crime they have RAS Of...
    Sooo they chase and stop evaders and runners as SOP.

    Black was a felon, with drugs, and a gun,,, but the cops didnt know that,,
    Until,, he was caught and searched!
    Illegally!
    The search was tossed out by the court, all charges dropped...
    Thank you.


    LOL....yes they do act like predators.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    Thank you.


    LOL....yes they do act like predators.
    Hunters. Dale Carson, former cop, in his book Arrest Proof Yourself, explains that many cops are like hunters.

    So, if an OCer wants to avoid a consensual encounter with a cop, he or she will want to avoid triggering a hunting or chase instinct. For example, walk, don't run.

    And, for heaven's sake, don't act startled or surprised when you first see the cop. That's what the police testified the defendant did in the case in the OP. The cops testified the defendant, upon seeing them, got wide-eyed before turning and walking (quickly?) away. Don't do that.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  6. #6
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by 1245A Defender View Post
    State V. Black


    cops often act like dogs,,, they like to think that trying to aviod them,
    or that running away from cops is automatic proof of RAS,,,
    they just dont know of What crime they have RAS Of...
    Sooo they chase and stop evaders and runners as SOP.

    Black was a felon, with drugs, and a gun,,, but the cops didnt know that,,
    Until,, he was caught and searched!
    Illegally!
    The search was tossed out by the court, all charges dropped...
    Cite please.....

  7. #7
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Citizen View Post
    Hunters. Dale Carson, former cop, in his book Arrest Proof Yourself, explains that many cops are like hunters.

    So, if an OCer wants to avoid a consensual encounter with a cop, he or she will want to avoid triggering a hunting or chase instinct. For example, walk, don't run.

    And, for heaven's sake, don't act startled or surprised when you first see the cop. That's what the police testified the defendant did in the case in the OP. The cops testified the defendant, upon seeing them, got wide-eyed before turning and walking (quickly?) away. Don't do that.
    Yes. Thank you for the clarification. I have read that book , good advice in it.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by color of law View Post
    Cite please.....
    I can't provide the cite(s), but I too have read cases where headlong flight is itself considered RAS by some courts.

    Which is really just a slide down the slippery slope started by Terry v Ohio. You see, in that case, the court said in so many words that if a cop has reasonable suspicion a crime was about to be committed, it was constitutional for the cop to involuntarily detain the suspect while he investigated further. But, the detective in that case had tons of observations on Mr. Terry to suspect a robbery of a jewelry store was being planned. So, the cop, a Detective McFadden, had a particular crime of which he suspected the men he soon after detained.

    Now, headlong flight aside, in every other case I've ever read, the police had a particular crime in mind. Burglary, drug dealing, drug trafficking, what-have-you. There was always a particular crime to which the law enforcement people could point that, based on their experience as cops, indicated the suspect might be involved.

    Then a few years ago I noticed a shift. Now, maybe that shift happened long before I noticed it, but I noticed it, say 3-5 years ago. The shift I noticed was away from a particular offense towards a general suspiciousness. Now, that is a deliciously vague characterization. Somebody calls 911 and reports a "suspicious person". Oh, yeah? That's a judgment pretending to be a fact. Facts are what the guy is doing. Suspiciousness involves a judgment about those facts. I even remarked on this in the comments section of a law blog, asking for clarification--can police just stop somebody who is "suspicious", or must they be able to point to a particular offense of which they suspect the person? Noooobody answered.

    So, along come the courts and say headlong flight is in and of itself reasonable articulable suspicion (RAS). RAS of what? Being scared of police? In this day and age? Really? Or, is it just an excuse for a fishing expedition by police? Certainly, the police have no particular offense in mind when they chase and detain the person who runs at the mere sight of police.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  9. #9
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    "I do not consent to this encounter."

    Does a cop then get his nickers in a bunch cuz we is being rude when all he wanted is to ask you is when the next batch of doughnuts were to be ready. Not my problem.

    A cop approaches you he is looking at you, place the burden of following the law on him right out of the gate. If I need a cop for a friend I'll invite one over for a burger and a beer.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

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

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    Quote Originally Posted by OC for ME View Post
    [ ... ] If I need a cop for a friend I'll invite one over for a burger and a beer.
    Be careful of the plain sight thing.
    Last edited by Nightmare; 07-28-2015 at 08:41 AM.
    I am responsible for my writing, not your understanding of it.

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    Regular Member OC for ME's Avatar
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    Be careful? Explain, many things can be seen when one is out and about in a public setting.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

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

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    Regular Member O2HeN2's Avatar
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    Quote Originally Posted by OC for ME View Post
    Be careful? Explain, many things can be seen when one is out and about in a public setting.
    I believe what the poster above you was pointing out is if you invite a cop over to your house for a burger and a beer, anything he sees in plain sight is free game.

    So if your wife had gone to the neighbors for a cup of flour and it's sitting on the kitchen counter in a baggie, you might be in for a wold of hurt.

    O2
    Last edited by O2HeN2; 07-29-2015 at 04:08 PM.
    When seconds count, the police are mere minutes away...
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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by O2HeN2 View Post
    I believe what the poster above you was pointing out is if you invite a cop over to your house for a burger and a beer, anything he sees in plain sight is free game.

    So if your wife had gone to the neighbors for a cup of flour and it's sitting on the kitchen counter in a baggie, you might be in for a wold of hurt.

    Ow2
    Maybe...
    The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them.

    http://law.justia.com/constitution/u...lain-view.html
    ... In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, "plain touch" reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object. The Court viewed the situation as analogous to that covered by the "plain view" doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.

    http://law.justia.com/constitution/u...and-frisk.html
    Obviously, the former friend will be forced to justify his acts in front of a judge.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

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

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    Quote Originally Posted by OC for ME View Post
    Maybe...Obviously, the former friend [ ... ].
    Begging the question, modus ponens, of just what is a friend.

    I believe that it is a generational thing. I tried to teach my child that not everyone is a friend, not all of her acquaintances are also friend. As we are known by the company that we keep, keep your friend standards high. A friend is one that we are better for knowing than not.

    No cop per se is friend. A neighbor may be a friend and a cop.
    I am responsible for my writing, not your understanding of it.

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    Regular Member Dave_pro2a's Avatar
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    Quote Originally Posted by O2HeN2 View Post
    I believe what the poster above you was pointing out is if you invite a cop over to your house for a burger and a beer, anything he sees in plain sight is free game
    Anything he "claims" to see in plain sight.














    In other words, any drugs he stuffs under your sofa cushions.
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