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Thread: Lawful order by leo

  1. #1
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    Lawful order by leo

    I tried looking this subject up and couldn't find anything.
    Question is,
    when is it a lawful order from a leo ??


    A police officer makes contact with you and tells you sit down on curb while he tries to identify you.

    Tells you to keep your hands out of your pockets.

    Wants to put cuffs on you or remove your weapon for his/her/your protection.

    Wants you or orders you to get out of your vehicle.

    In my opinion no officer has the right to tell me anything unless I`m being charged with a crime , now I`m not talking about if a leo telling you stay back while or something like that if he is investigating a crime scene ect.

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    Whether the have the right or not does not change that it is hazardous to your health to resist. Make your invocation of your right known, and be a little more financially secure at a later time.

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    There was recently a lawyerly discussion of this elsewhere, perhaps at FourthAmendment.com or the Volokh Conspiracy, where it was stated that a lawful order is any order that is not explicitly un-lawful.

    Probably not this, as the language is not so clear as I recall, but on point - IN: The resisting law enforcement statute has to be construed to require the order to stop be lawful and be based on RS or PC
    http://fourthamendment.com/?p=12315
    Last edited by Nightmare; 08-20-2015 at 04:08 PM.
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    Regular Member We-the-People's Avatar
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    In general....

    An officer must have RAS under Terry in order to detain you.

    Without RAS and detainment, he cannot give lawful orders such as you described. He CAN give some orders as to stay back from a stop he is making, a crime scene, etc.

    Nor can he issue orders for after you are detained...such as "you're free to go but don't touch your weapon that we unloaded and placed on the sidewalk until after we are gone." I've seen that one a lot with open carry stops, usually where they have violated the F__k out of the carrier.

    If you are in a vehicle (and not the driver), if the vehicle is LAWFULLY stopped, you as the passenger are also lawfully detained and can be issued lawful orders. HOWEVER, you do not have to provide ID (again, as a passenger) unless the officer can provide RAS that YOU have committed a crime AND you are in a "stop and ID" state. And "provide ID" doesn't mean producing a government issued document, just orally stating your name, address, and DOB is sufficient if you are in a "stop and ID" state.

    Auto stops are tricky. They must have RAS of a "crime" (violation) but it need be nothing more than "your license plate wasn't visible" or "you failed to use your turn signal". How would you ever prove otherwise unless it showed on the officers own dash cam? However, if the officer walks up and says "the reason I pulled you over is that someone said you have a gun"....well, that's probably not a legitimate traffic stop and you should refuse to cooperate...BUT NOT RESIST PHYSICALLY... from that point forward.

    I once went on a three day motorcycle trip with AR15's on the back of our sissy bars (two of us on two bikes). ALL of my identifying documents were inside a small combination safe, locked inside my saddle bags. Had we been pulled over and the officer said "because you got rifles on your bikes boys"....we'll the only ID he would have gotten was from the plate and he'd have had to release me or take me in cuffs. Because THAT would most certainly have been an unlawful stop and any orders resulting from it would also be unlawful. But as I said DO NOT RESIST PHYSICALLY. Take it to court.
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    Quote Originally Posted by We-the-People View Post
    In general....

    An officer must have RAS under Terry in order to detain you.

    Without RAS and detainment, he cannot give lawful orders such as you described. He CAN give some orders as to stay back from a stop he is making, a crime scene, etc.

    Nor can he issue orders for after you are detained...such as "you're free to go but don't touch your weapon that we unloaded and placed on the sidewalk until after we are gone." I've seen that one a lot with open carry stops, usually where they have violated the F__k out of the carrier.

    If you are in a vehicle (and not the driver), if the vehicle is LAWFULLY stopped, you as the passenger are also lawfully detained and can be issued lawful orders. HOWEVER, you do not have to provide ID (again, as a passenger) unless the officer can provide RAS that YOU have committed a crime AND you are in a "stop and ID" state. And "provide ID" doesn't mean producing a government issued document, just orally stating your name, address, and DOB is sufficient if you are in a "stop and ID" state.

    Auto stops are tricky. They must have RAS of a "crime" (violation) but it need be nothing more than "your license plate wasn't visible" or "you failed to use your turn signal". How would you ever prove otherwise unless it showed on the officers own dash cam? However, if the officer walks up and says "the reason I pulled you over is that someone said you have a gun"....well, that's probably not a legitimate traffic stop and you should refuse to cooperate...BUT NOT RESIST PHYSICALLY... from that point forward.

    I once went on a three day motorcycle trip with AR15's on the back of our sissy bars (two of us on two bikes). ALL of my identifying documents were inside a small combination safe, locked inside my saddle bags. Had we been pulled over and the officer said "because you got rifles on your bikes boys"....we'll the only ID he would have gotten was from the plate and he'd have had to release me or take me in cuffs. Because THAT would most certainly have been an unlawful stop and any orders resulting from it would also be unlawful. But as I said DO NOT RESIST PHYSICALLY. Take it to court.
    Seized, not detained. Big difference...actually huge difference.

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    Regular Member We-the-People's Avatar
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    Quote Originally Posted by notalawyer View Post
    Seized, not detained. Big difference...actually huge difference.
    Yes there is a big difference between the two terms. HOWEVER, in the portion you highlighted, there is ambiguity within the law. The passenger of a vehicle is SEIZED for purposes of the Fourth amendment per US V Brendlin. However, that seizure only meets the level of DETAINMENT under Terry v Ohio.

    Any detainment of an individual, against their will, is a seizure. A seizure under Terry however, is commonly (even among the courts) referred to as a "detainment" (a brief seizure of the person). While the Brendlin case states that the passenger is seized, that seizure is or the Terry type barring any additional suspicion of the passenger by the police.
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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by We-the-People View Post
    ... if the vehicle is LAWFULLY stopped, you as the passenger are also lawfully detained and can be issued lawful orders...
    Let's say the driver was giving someone a ride home, and was only a block away when he is lawfully pulled over for a traffic violation. Does this mean that the passenger is not allowed to get out and walk home while the driver is detained?
    Last edited by MAC702; 08-20-2015 at 06:26 PM.
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    Regular Member We-the-People's Avatar
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    Quote Originally Posted by MAC702 View Post
    Let's say the driver was giving someone a ride home, and was only a block away when he is lawfully pulled over for a traffic violation. Does this mean that the passenger is not allowed to get out and walk home while the driver is detained?
    It would be up to the discretion of the officer. He has the lawful ability to detain any and all passengers for the duration of the traffic stop but he doesn't HAVE to. He could allow a passenger to walk away from the stop.
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    I can't cite the court case(s), but I've come across a couple (not necessarily in Oregon, though) that validated/approved of police controlling a person's body during a detention. From another angle, I can definitely state I've never seen a court case that said a cop couldn't.

    However, the problem is actually deeper. Lets say a cop is allowed to make a person sit on the curb, or cuff him and seat him the back of the police car on reasonable articulable suspicion (RAS).

    It is the courts who decide whether the cop had RAS. Past tense. Meaning, its decided by the court after the fact. I can say without any reservation that I've never seen a court case that said the detainee gets to decide during the detention whether the cop has sufficient information to meet the threshold for RAS.

    Somewhere I posted a thoughtful analysis of the situation. Lemme see if I can find it.

    ETA: Found it:

    http://forum.opencarry.org/forums/sh...e-Cop-has-RAS&
    Last edited by Citizen; 08-20-2015 at 08:23 PM.
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    Quote Originally Posted by We-the-People View Post
    It would be up to the discretion of the officer. He has the lawful ability to detain any and all passengers for the duration of the traffic stop but he doesn't HAVE to. He could allow a passenger to walk away from the stop.
    Please stop using incorrect terminology. The passengers are seized, not detained. There is a huge legal difference between the two. Detaining some requires that LEO have reasonable suspicion of a crime and permits them to demand identification under penalty of law, handcuff them etc. Something he cannot do with the passengers.

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    Quote Originally Posted by Citizen View Post
    I can't cite the court case(s), but I've come across a couple (not necessarily in Oregon, though) that validated/approved of police controlling a person's body during a detention. From another angle, I can definitely state I've never seen a court case that said a cop couldn't.

    However, the problem is actually deeper. Lets say a cop is allowed to make a person sit on the curb, or cuff him and seat him the back of the police car on reasonable articulable suspicion (RAS).

    It is the courts who decide whether the cop had RAS. Past tense. Meaning, its decided by the court after the fact. I can say without any reservation that I've never seen a court case that said the detainee gets to decide during the detention whether the cop has sufficient information to meet the threshold for RAS.

    Somewhere I posted a thoughtful analysis of the situation. Lemme see if I can find it.
    I seen lots of videos where the individual convinces the LEO that he does not, in fact, have RS. Not really 'deciding' more like convincing/reminding the LEO his actions are unlawful.

    It really helps in these situation that one actually know the law and has a really good idea of why the LEO is there (911 call, anonymous complaint, his on volition, etc.) I have no problem 'arguing' the law with LEO on the side of the road (some people consider this dangerous/stupid) when the LEO is wrong and goes into 'respect my authority' mode. In Florida, it's not unlawful to do so and is not 'resisting'.

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    Regular Member We-the-People's Avatar
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    Quote Originally Posted by Citizen View Post
    I can't cite the court case(s), but I've come across a couple (not necessarily in Oregon, though) that validated/approved of police controlling a person's body during a detention. From another angle, I can definitely state I've never seen a court case that said a cop couldn't.

    However, the problem is actually deeper. Lets say a cop is allowed to make a person sit on the curb, or cuff him and seat him the back of the police car on reasonable articulable suspicion (RAS).

    It is the courts who decide whether the cop had RAS. Past tense. Meaning, its decided by the court after the fact. I can say without any reservation that I've never seen a court case that said the detainee gets to decide during the detention whether the cop has sufficient information to meet the threshold for RAS.

    Somewhere I posted a thoughtful analysis of the situation. Lemme see if I can find it.

    ETA: Found it:

    http://forum.opencarry.org/forums/sh...e-Cop-has-RAS&
    I underestand, and agree with, your point about the detainee not getting to determine whether the officer has RAS at the scene. HOWEVER, the citizen is in the untenable position of having to make that determination on what may or may not be all of the facts.....particularly after an officer has time to go think up his RAS post stop......if he is to be able to assert his rights. Sometimes it can be done, sometimes it can't. And sometimes it's probably best to let the officer think that he's got you snowed.

    For instance, I'm riding my motorcycle down th road with my AR15 strapped to the sissy bar and officer Fife pulls me over. As he approaches he says "man we've been getting all kinds of calls about you riding around with a rifle. What are you doing"?

    Well if I have this recorded, it's going to be much harder for the officer to later claim that his stop was legitimate because I didn't use my blinker/crossed the line at the cross walk/etc. In fact, he's even less likely to make that claim if he doesn't know he's been recorded by me so....if he approaches and says "Im recording" the stare decisis is that that is sufficient notification and I don't need to inform him that I'm also recording.

    This is the reason that, when I carry a long gun on my motorcycle, I keep my documents in a locked safe, in the locked saddle bag.

    YouTube is full of officers stating, when asked "why am I being detained", saying "because you have a weapon". That's NOT RAS and when on tape is highly prejudicial to any prosecution.

    But yes, the court, in hind sight, gets to make the final determination and we know all too well how often the courts make PC, rather than LAW, based decisions.
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    Quote Originally Posted by notalawyer View Post
    Please stop using incorrect terminology. The passengers are seized, not detained. There is a huge legal difference between the two. Detaining some requires that LEO have reasonable suspicion of a crime and permits them to demand identification under penalty of law, handcuff them etc. Something he cannot do with the passengers.
    A "detainment" IS a "seizure". The terms have similar meaning with a detainment being a less intrusive FORM of seizure. ALL seizures are governed by teh Fourth Amendment and Fourth Amendment jurisprudence. In addition, STATE constitutions and state jurisprudence may be stronger than the Fourth Amendment.

    For instance, the US Supreme Court has held that suspicionless stops for DUI checkpoints are lawful (see Michigan v Sitz 496 US 444 1990).

    However, such checkpoints are unlawful in the state of Oregon as they have been held to violate our STATE Constitution.
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    The issue I see with detentions, any detentions, is that they are basically kidnappings. If they are are legal kidnappings is another question.

    I have been stopped by cops yapping nonsense .... when I say to stay away and do not try to limit my movements as I would then consider their actions to be kidnapping and be subject to citizen's arrest they have always left me be.

    Many states have laws noting that you cannot resist a lawful arrest.

    Sometimes one cannot tell at the scene if the cop has RAS or PC or not. But many times its clear enough.

    So if a cop stops you and you believe that they have no RAS or PC and you cannot go from point A to point B .. is that then a kidnapping from your perspective? Its basically the definition of kidnapping.

    And immunity and all that? It does not exist until plead in court.

    The law does not negate your rights to be free from criminal activity of anyone.

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    Quote Originally Posted by notalawyer View Post
    Please stop using incorrect terminology. The passengers are seized, not detained. There is a huge legal difference between the two. Detaining some requires that LEO have reasonable suspicion of a crime and permits them to demand identification under penalty of law, handcuff them etc. Something he cannot do with the passengers.
    Supreme court of Commifornia (S218993 The People v. Shauntrel Brown - 2015) noted that seizure occurs when the cop's roller lights are activated. So this would include all in car I assume.

    Any stop under authority is a seizure.

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    Quote Originally Posted by We-the-People View Post
    A "detainment" IS a "seizure". The terms have similar meaning with a detainment being a less intrusive FORM of seizure. ALL seizures are governed by teh Fourth Amendment and Fourth Amendment jurisprudence. In addition, STATE constitutions and state jurisprudence may be stronger than the Fourth Amendment.

    For instance, the US Supreme Court has held that suspicionless stops for DUI checkpoints are lawful (see Michigan v Sitz 496 US 444 1990).

    However, such checkpoints are unlawful in the state of Oregon as they have been held to violate our STATE Constitution.
    The terms are not interchangeable, at all. And you have their relationship reversed. Passengers are seized when the driver is detained in a lawful traffic stop - i.e. they have RS that the driver committed a crime or infraction. LEO can handcuff the driver and pat him down for weapons, demand ID, FST, breathalyzer, etc, without further RS or PC of criminal activity, the same cannot be said for the seized passengers.
    Last edited by notalawyer; 08-20-2015 at 11:55 PM.

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    Quote Originally Posted by davidmcbeth View Post
    Supreme court of Commifornia (S218993 The People v. Shauntrel Brown - 2015) noted that seizure occurs when the cop's roller lights are activated. So this would include all in car I assume.

    Any stop under authority is a seizure.
    Correct, but only the driver is 'detained'.

  18. #18
    Regular Member We-the-People's Avatar
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    Well, being as how this is the OREGON thread, Calif Supreme Court findings and decisions don't have any weight. The SCOTUS however, has held that a seizure does NOT occur until the subject submits to the seizure. So under that jurisprudence, simply turning on the lights would not constitute a seizure until the driver pulled over.....at which time ALL occupants of the vehicle are seized.

    In order to understand this requires more than reading a single case in some state somewhere. In Brendlin the case flip flopped as it went through the appeals process with Scotus finally holding that Brendlin was seized when the vehicle was stopped and the driver detained.

    However, the statement that seizure occurs when the patrol car lights come on is incorrect. In California v Hodari 499 US 621 (1991), SCOTUS held that a person is not seized until actually submitting to the show of police authority (the patrol car lights, an order to stop while walking, etc.). In the case of a car driver, when he pulls to the side of the road and waits for the officer to approach. In the case of a passenger, if he were to flee after the car stopped, a seizure still has not occurred.

    There is additional stare decisis on this topic, generally involving suspects who flee on foot, but the above is sufficient to make the point re a vehicle stop.
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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by We-the-People View Post
    ... In the case of a passenger, if he were to flee after the car stopped, a seizure still has not occurred...
    Is that then RAS to detain him, he not being a suspect in anything?
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    Regular Member We-the-People's Avatar
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    Quote Originally Posted by MAC702 View Post
    Is that then RAS to detain him, he not being a suspect in anything?
    That certainly sounds like a catch 22 but I can tell you how the court is going to rule......want to guess?

    Remember, this is the SAME court that ruled that a warrant is not required to search the home of an occupant who has denied consent if he is subsequently detained or arrested and another occupant then grants consent. No incentive for the police to gin up some bogus charge there now is there?
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    Well,,,

    Quote Originally Posted by MAC702 View Post
    Is that then RAS to detain him, he not being a suspect in anything?
    I think NO!!!

    See US V. Black

    Running away, because you dont want to see or be stopped by cops is not RAS of a crime..




    Although,,, running from cops ,, will,, bring out the dog/chase reflex in cops to chase and catch "prey"...
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    Quote Originally Posted by Dave H. View Post
    I tried looking this subject up and couldn't find anything.
    Question is, when is it a lawful order from a leo ?? ...
    They are all lawful until a judge rules otherwise...later. Ignore/disobey at your own peril.
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    Quote Originally Posted by 1245A Defender View Post
    I think NO!!!

    See US V. Black

    Running away, because you don't want to see or be stopped by cops is not RAS of a crime...
    I suppose it could then be held against the driver for allowing the escape of his seized effects?
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    Quote Originally Posted by MAC702 View Post
    Let's say the driver was giving someone a ride home, and was only a block away when he is lawfully pulled over for a traffic violation. Does this mean that the passenger is not allowed to get out and walk home while the driver is detained?
    My understanding is the cop can claim the passenger is a witness to a "crime"? The only way for the passenger to know for sure whether there's RAS or if the cop thinks the passenger is a witness, would be for the passenger to ask the cop "am I free to leave?".

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