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/docs/pdf/9/2015/2015-Ohio-2931.pdf

I found out about it here: http://fourthamendment.com/

There was a case in Washington I do not remember its name, the courts ruled flight alone does not justify a detention.

Well,,,

sudden valley gunner said:

There was a case in Washington I do not remember its name, the courts ruled flight alone does not justify a detention.

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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...

1245A Defender said:

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...

Click to expand...

Thank you.


LOL....yes they do act like predators.

sudden valley gunner said:

Thank you.


LOL....yes they do act like predators.

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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.

1245A Defender said:

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...

Click to expand...

Cite please.....

Citizen said:

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.

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Yes. Thank you for the clarification. I have read that book , good advice in it.

color of law said:

Cite please.....

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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 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.

Be careful? Explain, many things can be seen when one is out and about in a public setting.

OC for ME said:

Be careful? Explain, many things can be seen when one is out and about in a public setting.

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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

O2HeN2 said:

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

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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/us/amendment-04/20-plain-view.html

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... 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/us/amendment-04/13-stop-and-frisk.html

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Obviously, the former friend will be forced to justify his acts in front of a judge.

O2HeN2 said:

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

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Anything he "claims" to see in plain sight.














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