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Thread: Blurred Line

  1. #1
    Founder's Club Member
    Join Date
    Nov 2006
    Fairfax Co., VA

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    The discussion about having to wait for a police backup during a traffic stopjogged something that has been percolating in the back of my mind for a while. Its only similarityis that it involves police.

    Let me frame it as a rhetorical question. When is a Terry Stop blurred to make it look like a consensual encounter--one you can walk away from?

    Knowing the law and your rights is very important.I think weshould also be alert tothe police practice of using an authoritative tone--in the military we called it command voice. It can be subtle. It doesn't have to be strong or loud, just present.Agood examplemight be the police officer who "politely asks" to see your driver's license in an authoritative tone. He includes the word "sir/ma'am," thusit is polite. He usesthewords, "may I" or "please" so it seems like he is asking. When in truth, when he uses the authoritative tone,it is not a request. It is a command. Itis a control tool. I use thetraffic stop/driver's license request only as an example to identify the tone.

    But what about police encounters like happened in Staunton, Virginia to the VCDL memberslast summer?Poor recall on my part, but I thinkthe police claim it was not a Terry Stop, that it was a consensual encounter.Was therean authoritative tone in their voice, or in other rights-violating encounters discussedin this forum?

    That toneis intended to gain compliance. Itis, by definition,an attempt tooverride the recipient's power of choice, aka consent. It alone canmakean individual feel compelled to comply.That's why they use it.

    The Virginia Court of Appeals, in Taylor vs Commonwealth, wrote:

    In Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455

    S.E.2d 744, 747 (1995), this Court summarized the three types of

    police-citizen encounters:

    Fourth Amendment jurisprudence recognizes

    three categories of police-citizen

    confrontations: (1) consensual encounters,

    (2) brief, minimally intrusive investigatory

    detentions, based upon specific, articulable

    facts, commonly referred to as Terry stops,

    and (3) highly intrusive arrests and searches

    founded on probable cause.

    A Terry stop occurs "only if, in view of all of the circumstances

    surrounding the incident, a reasonable person would have believed

    that he was not free to leave." United States v. Mendenhall, 446

    U.S. 544, 554 (1980). "As long as the person to whom questions

    are put remains free to disregard the questions and walk away,

    there has been no intrusion upon that person's liberty or privacy

    as would under the Constitution require some particularized and

    objective justification." Id.

    Comparethe wording about "believed he was free to leave" and "remains free to disregard" with the purpose of an authoritative tone of voice. Its calculated to make youcomply, notgive youthe impression you can walk away or disregard.

    See how this works: use politewords, butsend them with an authoritative tone, even a subtle one,and you can claim it was arequest.The other fellow then isin theposition of having to say somethinginarticulate like, "Well,I didn't feel like he was asking."

    In a video on the Internet,police repeatedly commandeda parole violatorto laydown and then Tasered him when he didn't comply.He had just driven his pick-up truck through his girlfriend's fence, thus violating a protective order to stay away.However, in the background was a newscaster's voicesayingthepolicereportedtheyTasered him because he refused repeated requests to lay down.

    Count on the police saying they "requested" something from you. "Oh no, Your Honor,the poor citizen accusing us of aninappropriateTerry Stop was requested to show us ID. We onlyasked if we could talk tohim. He was free to go." I very much suspect they will leave out any reference to using an authoritative or commanding tone in their voice.

    Granted, there are professionals who know when to turn on the authoritative tone,and when not to.

    We would do well torecognize when one of them has got it backwards. You are going to feel pressured to comply. Just know that it is the authoritative tone that is making you feelpressured. Its that command tone, subtle or strong.Some may say its because we've been trained to obey police.Try this: substitute everyday, normalspeaking voice, but leave in the uniform. Nowyou've got a person just talking to you. You might be nervous, but you're not being controlled. Imagine a police officer addressing you with an authoritative tone. How much power of choice do you feel you have? Now imagine a police officer addressing you in anormal speaking voice.Which one leaves you with a stronger sense of power of choice?

    Their authoritative tone may work more automatically because we've been trained to obey police, but its the tone that isdoing theworking.

    Know your rights.And know when a control method is beingused on you to override your power of choice.

    Does anybody have more information?Legal, subjective, procedural, or in regards to other rights-violating encounters?

    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.

  2. #2
    Regular Member
    Join Date
    Dec 2006
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    Is there more than arrest, Terry, and freedom?

    I recently ran into a situation at a living quarter where I was never told I was under arrest or to be cited, and after waiting a considerable amount of time where I was not being suspected of anything or even bothered with that I had absolutely no interest in being in this quarter any longer, almost reaching the dooring after announcing that 'I do not believe I can be detained here and I wish to leave', only to have a police officer assault me and repeatedly push me back, continuing effort to block the exit path afterward.

    I believe I tried to leave again in another 5-10 minutes, with the same result, being told I could leave after 'the investigation'. This 'investigation' took considerable time and there was no warrant to be on this premises (I believe that the resident responded to a knock and the officers consequently barged in.)

    I don't see this as exactly inline with what you're asking, but I consider it a blur between custodial detention for licit reasons and a 'free to go situation'. I made to make physical effort to resist this detainment having read case law in the past that meakly saying 'no' in situations like 'roadside search' is not sometimes legally considered 'considerable resistance' or some hogwash (I'll have to find some court cases to qualify if 'no' was enough for rape in sex, but not for raping our rights...)

    (Edit: Maybe I'm being retarded right now...Terry is just for weapons frisks, I thought it had broader implications, blah. No searches or request for searches of my person were made. So is there a 'temporarily dentention without freedom to go' that's called something else?)

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