Defendant had right to walk away from approaching Police officer

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I have much the same problem you guys do.I am not allowedto just flash them and walk away unless it is official business. So I have to stand there and take it just like you do. Of course what happens later may be a completely different matter. I like to think of it as training.

Regards

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Hawkflyer wrote:

SNIP I like to think of it as training.

Regards

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The training sensei would say, "You are not strong in your support of Liberty! You are weak! Give me fifty push-ups!"

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Tomahawk wrote:

Citizen wrote:

[stuff]....If a police officer approaches me, his personnel file is in jeopardy. Each and every mistep will be the subject of a bullet-point in a formal complaint, if not a lawsuit. If I am going to be in legal jeopardy. He is going to be in career jeopardy, or financial jeopardy, or both.

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Wow, and I thought I needed the flame-proof suit. I try hard not to come off as "cop-bashing", but when confronted with questions like the one posed above you either speak your mind or shut up, and sometimes I can't shut up. Apparently you and I will see if misery really does love company. Hawk, you bring the Scotch, I'll bring the bourbon, and Citizen, up to you what you want to drink.

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Thank you!

High praise indeed. You made my evening.

I'd never really posted the full intention before. Figuring it was maybe a little too hot.

Its really just one step beyond defensive verbal tactics in a police encounter.

It just occurred to me one day that if the police can use various sneaky conversational tactics to get me to incriminate myself, or try to get me to waive my 5A right to silence, or waive my 4A right to refuse consent,there was no reason I couldn't play that way in return.

So, instead of just invoking my rights, I plan to play along, pretend meekness, give them rope, ask them questions--meekly--to get them to confirm some illegal point.

And why not? Why not find out whether he is a good cop or not? And why not gather enough evidence that his willingness to step over the line is irrefutable, or that he in fact was stepping over the line?

For example, to expand on the ID, theme,I no longer plan to withold myID. Heh, heh, heh. Go ahead and demand it, copper. I dare you. I'll just say, "Uh, yes officer. I'll comply with your demand. I...uh...don't think I should consent to this...I don't consent to it...but you're making an official sounding demand...so, even though I don't consent...I don't want to experience you taking it forcefully...here it is." Even if he has RAS and there is a stop-and-identify ordinance in his locality, I've got him on that point. Gotcha, you son-of-a-(bleeptch). Of course, he's gonna know my name once the formal complaint or lawsuit lands, anyway. And this totally bypasses the whole issue of me having to memorize which localities have stop-and-identify ordinances. So, this little piece of pie fits the saucer very nicely.

I'm just taking it one step beyond protecting myself. I'm setting it up so I can fight back in support of rights after the encounter, not just for myself, but to make themunderstand they need to respect rights.

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I think you all need to read the last page....

[align=left]"Because the officer lacked adequate grounds to stop Jones, we hold that the trial court erred in denying Jones’ motion to suppress. Therefore, wereverse the decision of the trial court and remand for a new trial, if the Commonwealth be so advised." [/align]

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Sheriff wrote:

I think you all need to read the last page....


[align=left]"Because the officer lacked adequate grounds to stop Jones, we hold that the trial court erred in denying Jones’ motion to suppress. Therefore, wereverse the decision of the trial court and remand for a new trial, if the Commonwealth be so advised.[/align]

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"All" is a pretty comprehensive term. But, I always hate being left out, anyway.

You understand I addressed this point from another angle.

And we're trying to fit this decision's holding and rationale into 1) the bigger picture of rights, and 2) tactics during police encounters.

I personally wasn't planning to write a note to the Commonwealth advising them about a new trial, one way or another.

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Sheriff wrote:

I think you all need to read the last page....


[align=left]"Because the officer lacked adequate grounds to stop Jones, we hold that the trial court erred in denying Jones’ motion to suppress. Therefore, wereverse the decision of the trial court and remand for a new trial, if the Commonwealth be so advised." [/align]

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I might be lost too...

Isn't this a 'win' for us? Assuming you are a person like me that refuses to identify myself this is more fodder for supporting/proving the validity of the point of refusing.

The court said that we don't have to stop - we don't even have to acknowledge the officer attempting to stop us. If the officer chooses to attempt to stop you without having proper RAS then - atleast in Virginia - he could potentially be committing assault on you.

Am I missing something?

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Citizen wrote:

I personally wasn't planning to write a note to the Commonwealth advising them about a new trial, one way or another.

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The commonwealth will never roll over and play dead. They will hear the case again just to cost the guy more in attorney fees. As in, "We might not beat you, but we're going to make you pay to play!"I've seen it1,000 times and have even heard a commonwealth attorney make the remark.

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Repeater wrote:

Citizen wrote:

TFred wrote:

SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.

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Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.

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I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?

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That is the way it is supposed to be. We are the highest level of authority in the nation. We are the sovereign. Funny how few people neither understand nor acknowledge this fact.

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I am guessing that Citizen already knows that "if the Commonwealth be so advised.", is a term of art in law that means if the lawyer for the commonwealth decides to go forward.

I only mention this to be certain that no one get the idea that anyone has to ask for the new trial beyond the prosecution in the case.

And Sheriff is correct, They will try it again to bleed this guy. But if he wins he can file an rather large civil suit, to try to get his money back.

Regards

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Hawkflyer wrote:

Well I for one do not think you kids should talk to strangers.

But this is an interesting opinion as it does remove a great deal of authority from a LEO, and place is squarely in the hands of the citizen. How could that have happened in our courts?

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Not sure if your mind has changed on this point as the thread discussion has progressed. So, I'll take up the discussion point, for exercise if nothing else.

I am not a lawyer. (seque into next point) But my somewhat extensive study--for an everyday citizen--leads me to believe that this decision really doesn't change anything.

The point about refusing to cooperate, without something more, not furnishing RAS for a Terry Stop, while new to me (I'd never seen it in writing), seems to be from an older case, in that this case, Jones, is quoting an earlier case. And really, they're just saying that exercising a right carries no taint. Not too dissimilar from saying exercising the 5th cannot be construed to indicate guilt.

The really difficult point is that nobody but me--meaning the court in this case--seems to ever point out that a citizen can't really know at the time of the encounter whether the officer has RAS that a court has already recognized, or will likely recognize.

So, the citizen really has very little power during a police encounter once an officer does something to give a reasonable person reason to believe he cannot or shouldn't disregard the officer's inquiry.

I think they are just applying existing principles to the this case.

Well, that and maybe clearing up that briskly walking away didn't constitute headlong flight, thus his refusal to cooperate, in taking the form of briskly walking away, was not recognized by the courts asRASby itself.

The cop didn't have RAS in the first place. So, the refusal to cooperate had no bearing on the outcome. Except maybe that if he had hung around, and upon being asked had consented to a patdown, thenthe gun would have been admissable.

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Well the short answer is that the Officer can say what he wants after the fact to justify his actions. So his RAS can be something he thinks of later. Without sharpening the pencil any more lest I attract moths to this flame, I think you are smart enough to catch my drift.

But assuming an honest LEO, without a Mat Dillon complex, my original thought stands.

I am certain that in practical application it would unfold very close to my earlier post. How far you push it depends on your threshold of risk.

Regards

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Xeni wrote:

I might be lost too...

Isn't this a 'win' for us?

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Its a win for rights, but only to the extent that there is no additional infringement beyond those previously established.

(Full disclosure: I'm not dumb enough to think that the courts are the authors of our rights. They can only decide whether, which, and to what extent the government does or doesn't recognize a given right. Also, just because a court comes along and says, "Thou hast this aspect of this right, but not that one,"I'm no longergullible enough to believe I no longer have that one. In the final analysis, its really just the government telling itself it doesn't have to recognize this or that right.)

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Xeni wrote:

SNIP Assuming you are a person like me that refuses to identify myself this is more fodder for supporting/proving the validity of the point of refusing.

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I am not a lawyer.

This is very important. There is a difference between identifying yourself, and providing ID.

The main difference is identifying yourself can be done verbally. Providing ID means handing over some sort of documentation--say a drivers license or DMV-issued ID card.

Here is why its important. Some localities may have an ordinance requiring you to identify yourself to a police officer.

There are court cases regarding whether states may require a person to carry ID. Kollander, I think is one. There is at least one court case about whethera police officer can demand a person identify himself, and whether the officer must first have genuine RAS before he can make the demand stick in court.

I recommend learning these cases. Mike is much better at the identification thing since he is also a privacy advocate. You could ask him for some cites. (If you get them, please PM them to me as I'm a little foggy on which case says what, myself.)

I strongly recommend being very careful about refusing to identify yourself unless you know beyond a shadow of a doubt that the locality in which you are having your police foot encounter does NOT have a stop-and-identify ordinance. You may be opening yourself to a citation by your refusal to verbally identify yourself.

If the officer says, "I need to see some ID" that's one thing.

If the officer says, "Who are you and where do you live?"itspotentially a whole different kettle of fish.

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Xeni wrote:

The court said that we don't have to stop - we don't even have to acknowledge the officer attempting to stop us.

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(I am not a lawyer.)

That's close to what they said, but not quite what they said.

One has to read court opinions in full context. Meaning, the whole thing tells you what the court is thinking. Also, the courts giveonly so much analysis expressly--they only write outonly so much analysis. You might have to do some yourself.

Also, one thing that makes it tricky is the court, in these types of cases,is not really deciding what youor I can do. What they are really deciding is the correctness ofa lower court's decision to admit into evidence or throw out any given piece of evidence found and seized by the police without a warrant. That's really what they are deciding. Not so much what you or I are allowed to do. It kinda skews things a little. So, you have totake that into account as part of it.

As far as this case, Jones, goes, lets start with a pertinent quote. But keep in mind, its not the full context. Its just this one quote.

"However, citizens who are not under arrest or otherwise detained have every right to refuse or ignore requests from law enforcement officers.

OK, lets look at what I believe is the keypart:

"...have every right to refuse or ignore requests from law enforcement officers."

Requests. Not demands. Requests. The word request carries the meaning that its optional, and the requester is recognizing your sovereign right to honor the request or not.

So, we're not talking in this quote about a demand. Just requests. Lets look at the next sentence in the opinion:

"When an officer,without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business."

The problem here is, how the heck can you safely and surely know whether the officer has reasonable suspicion? You would have to know: which little circumstances here and there across the years have been judged by the courts to furnish reasonable suspicion, which little circumstances have been expressly refused by the courts as furnishing reasonable suspicion, AND, since the courts reserve the authority to judge whether any given set of circumstances, including yours in the police encounter that is just starting, you would have to know with some degree of certainty how the court is going to judge the circumstances surrounding the encounter that is happening to you right now, including any combination of circumstances they maybe haven't judged yet. And,you would have to know which circumstances furnishing reasonable suspicion the police officer observed,and which he didn't. And, on top of all that, you would also have to knowwhat the 911 dispatcher told the cop. There ain't no way in heck even a lawyer can know all that, or discover it, such that hecan decide whether to ignore the officer whenthe officer first says, "Hey, you! C'mere." It just ain't fducking possible. (yeah, that's my new word. It was a typo, but it struck me humorously, so I'm keeping it)

So, you can't possibly have any idea whether you can safelyignore the very initial contact. Even though, in theory, you have the right to.I've believed this for some time,not because the court said or didn't say something in the case under discussion--Jones.What I mean is that its not like I figured out that whole last big paragraph just from reading Jones.

Now, separately from all that,in US vs Mendenhall the US Supreme Court said,

We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. (Explanatory Note by Citizen: a detention/stop/Terry Stop is a seizure under the 4A. See Terry vs Ohio.)

Note those words, "show of authority".

Mendenahall also says:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment 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.[suP] [n6][/suP] Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Note those words, "...the use of language or tone of voice indicating compliance with the officer's request might be compelled."

Also, note that "indicating compliance...might be compelled" means we're not really talking about a request anymore. We're talking about a demand.

OK, now compare what Jones said about requests to what Mendenhall said about demands.

You get it?

The rest of this is my opinion. I am not a lawyer. I'm saying itsmy opinion so I don't have to go dig up a bunch more cites for court cases.

I believe, for all practical purposes,when theinitial contact is entirely verbal, it depends on whether a demand is made.

If you receive only a request, it is still consensual, voluntary.

If you receive a demand, it is no longer consensual.

Now, Hawkflyer has a good point a few posts above. You can just initially ignorethe officer,demand or request,until he grabs your arm--in my opinion (to avoid having to cite)grabbing your armis going to count as, without regard towhether its legitimate,a seizure, an involuntary thing, a non-consensual thing, a detention/stop/Terry Stop, at least.

But,one need not risk angering a police officer andperhaps provoking a forceful response, perhaps provoking handcuffs where maybe otherwise you wouldn't have been cuffed.

You can just use good old, everyday listening skills. If the officer uses a pleasant, conversational tone ofvoice, he is not demanding anything. If the officer uses a commanding or authoritative tone of voice, he means business and wants your compliance. And, thanks to Mendenhall, youcan just assume you are seized. This is not to say you can't or shouldn't ask whether and why you are being detained. Who knows, you mightdevelop some very useful information, perhaps damaging to the copor beneficial to you later. I'm just addressing the first moment, that first instant where you are going to decide whether to ignore him, whether you can safely keep walking.

Here's the link to US vs Mendenhall. I really recommend everybody read it. Its a fairlyeasy read.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0446_0544_ZO.html

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Citizen wrote:

Xeni wrote:

The court said that we don't have to stop - we don't even have to acknowledge the officer attempting to stop us.

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(I am not a lawyer.)

That's close to what they said, but not quite what they said.
SNIP...

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I am not a lawyer either, and as far as I can tell Mike and John are the only ones who are.


Well thought through.

It will still boil down to a series of escalating contacts. Now obviously if the LEO shouts at you from close range, "You! Stop right there!", you turn and he is pointing at you, you have been commanded to stop. That sort of an order is predication for handcuffs and other bad stuff. You better listen.

But if the LEO is some distance away, and shouts "Hey there I want to talk to you", with no other clues, then You could reasonable keep walking. There would then follow a series (could be short, could be long) of escalations, leading up to an actual seizure of the person. The seizure could be by physical touching or by verbal order.

This is a lot like the supreme courts view on porn. You will know it when you see it.

But in my view these decisions provide support from the court against claims of failing to submit to police, when it is unclear that you have violated any law, or the LEO is not clear in his initial contacts. But again how you use this information is subject to your own individual tolerance for risk.

Regards

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Citizen wrote:

Hawkflyer wrote:

Tomahawk wrote:

Repeater wrote:

Citizen wrote:

TFred wrote:

SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.

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Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.

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I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?

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The correct answer is B: we are not truly free, we are sheeple.

From the very moment we decided government has a monopoly of force and can designate chosen members of society, give them badges, and make decisions to use force that ordinary citizens could never dream of.

I hate to say it, but the logic leads me there. Give me a minute to put my asbestos suit on, please.

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No asbestos required as you are basically correct.

However I would point out that you guys are over thinking this a bit.

There you are walking down the street in normal OC mode. A LEO shouts to you from across the street, "Hey buddy, come her I want to talk to you a minute." You ignore him and keep walking. SO now what happens.

Either the LEO will just let you go or he won't. If he decides to stop you, he is not going to just start shooting at you as he has no grounds for application of deadly force. SO if he wants to stop you he will have to approach you and probably block your path. At that point you can either go around or stop and talk. If you attempt to go around and he still wants to talk, he will have to lay hands on you or obstruct you in some way, and technically that would be an arrest. He darn well better have a charge in mind beyond "contempt of Cop" if he gets to that point according to this ruling.

In that scenario you have done nothing to obstruct or apply force the the officer, and would not be subject to a charge on those grounds.

In my view this decision lays the ground work for a lot of confrontations with LEOs unless and until they get the idea that walking away from them can be legal.

All of this is of course predicated on the concept that YOU know you have done nothing wrong and you have done nothing that a reasonable person might THINK is wrong. Now lets be real here. DO you really think Danbus is going to get away with walking away from a LEO? I did not think so.

Regards

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Good points, KungFuHawk-san.

Also, we can useour opponent'sweight against him, as any good sensei would teach the youngest pupil. That is to say, use the government's own pronouncements against its agents. While at the same time falling correctly ourselves to avoid injury. Too bad for the agents if they have neithergood sensei, norgood sense---to read the rules and learn how to use them.

Thus, when the opponent-agent first pushes, we step aside and let his weight carry him forward--we ignore his "request" (which he will surely call it later, a request).

Then we help himlean beyondhis safe balance by getting him to declare or demonstrate that it is not a request. Mendenhall gives us the tool:given the totality of the circumstances, would a reasonable person feel free to disregard the officer's inquiries and walk away? Does he use an authoritative tone of voice? When asked why we are being detained, does he say something that indicates we are?

And of course, we fall safely by not angering him--too much. Just enough that he makes mistakes. Says things that our voice-recorder picks up.

And, to each illegal comment, we give him more rope: "Gosh, officer. I'm sorry. I didn't know I had to give you my ID? (in a state with no stop-and-identify statute, in an encounter with no genuine RAS).

And then, after he smugly turns his back, thinking he has intimidated us and won, we launch the flying kick that takes his face off--a formal complaint or lawsuit.

I'll end here with the martial arts metaphor. And say it plainly.

If a police officer approaches me, his personnel file is in jeopardy. Each and every misstep will be the subject of a bullet-point in a formal complaint, if not a lawsuit. If I am going to be in legal jeopardy. He is going to be in career jeopardy, or financial jeopardy, or both.

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I think this is largely correct.

While I am not generally hostile to the police, I'm always wary of contact with them.

Here in the town in Ohio where I live, I have little mistrust for the police. I will engage in innocuous conversation with them if it's not inconvenient to me.

On the other hand, I spent Christmas in Chicago. ANY contact with the Chicago PD is going to begin with "Officer, am I free to leave?" THEY get NOTHING beyond name and address, or if I'm driving, the appropriate credentials. ANY other further attempts at interaction will be met with "I will not speak without an attorney present." and NOTHING else.

If you violate my rights, I won't fight you in the street. I WILL do everything humanly possible within the law to destroy your career and your finances. Attempting to hide behind your family will just provoke contemptuous laughter. If you didn't care about your family when you were entertaining yourself by violating my rights, I don't care about your family when I'm trying to put you and them out in the street.

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Alright all you, I'm-not-a-lawyers. Good discussion. I'd like to get to the meat of this for a moment.
What's wrong with:
Cop: "Sir, Wait right there. Can I talk to you for a moment?"
Me: "Sir, am I under arrest?"
Cop: "Well, no but ..."
Me: "Am I being detained?"
Cop: "Uh, no, but ..."
Me: "Good day sir."

No questioning his RAS, PC, etc. No rudeness. No sprinting.

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ufcfanvt wrote:

Alright all you, I'm-not-a-lawyers. Good discussion. I'd like to get to the meat of this for a moment.
What's wrong with:
Cop: "Sir, Wait right there. Can I talk to you for a moment?"
Me: "Sir, am I under arrest?"
Cop: "Well, no but ..."
Me: "Am I being detained?"
Cop: "Uh, no, but ..."
Me: "Good day sir."

No questioning his RAS, PC, etc. No rudeness. No sprinting.

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Pithy. Indeed, defend yourself with good words.

Alternate example:

You: "Am I free to leave?"

Cop: "Yes."

You: "Good day."

OR........

Cop: "No."

You: "Why not?"

Make certain you are in the posture of a Consentual Encounter and not something else.

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you guys kill me with this stuff.....

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ufcfanvt wrote:

Alright all you, I'm-not-a-lawyers. Good discussion. I'd like to get to the meat of this for a moment.
What's wrong with:
Cop: "Sir, Wait right there. Can I talk to you for a moment?"
Me: "Sir, am I under arrest?"
Cop: "Well, no but ..."
Me: "Am I being detained?"
Cop: "Uh, no, but ..."
Me: "Good day sir."

No questioning his RAS, PC, etc. No rudeness. No sprinting.

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Nothing wrong with this that I can see. You've answeredthe topic question by deciding torespond to the officer, rather than ignoring him. Nothing wrong with that at all.

But the thread topic is more along the lines of whether you can just ignore the cop and continue going about your business.

We're really talking about the initial moments where the officer is trying to establish contact with the OCer. Most of your script, while entirely valid, relates to a wayto exercise your rights and disengage after the contact.

I'm not sure why you mention questioning his RAS, PC, etc. If I'm off the mark with this next, let me know.

The questions about RAS and so forth help the OCer find out where he stands, andpossibly gather evidence of an illegal detention. They're not intended as a smart-mouth reply to fight back and somehow prove the cop is wrong.

Realize that if the cop is interested in you, but thinks he lacks RAS, he is going to dodge the detained question. He wants to talk to you. He wants to see if he can develop RAS.He's less likelyto just give up after the first try and let you go by openly acknowledging you are not being detained.