imported post
Here is some information I posted previously on another thread. Its mostly about the 4th Amendment, but the 5th does come into play:
You've asked some very good questions.
I am not a lawyer. However, I'm not completely unstudied on the subject.
Welcome to the 4th Amendment! Your 4th Amendment rights against
unreasonable searches and seizures are defined in court opinions by the US Supreme Court, VA Court of Appeals, andVA Supreme Court.
Literally, the more you know these court opinions, the more you will know your rights. And, the limits of your rights, as recognized by the government, and the limits of the police officer's authority.
Think of a police encounter as a negotiation.Think of it also as a modifiedversion of Newton's 3rd Law of Motion: For every action (on your part) there is going to be a reaction (on the officer's part.)
There are:
- the rules of the game
- exceptions to the rules
- advantages and disadvantages forboth sides
- the tactics both sides employ
- gray areas
The more you know, the moreyou willbe able to manuever. More importantly, the more certain you areabout the law, the better.Personal opinions gleaned from an internet forum give the wise fellow very little certainty. The wise fellow willverify by goingstraight to the horse--the 4th Amendment, VA's Constitution, and the court opinions.
Here are some starters for you.These are my opinions. My understandings from personal study. Remember the part about police reactions to your actions when reading these:
1. In VA, you may not physically resist adetention. First and most important point.
Do notphysically resist a police officer. You can always sort things outand/or file a formal complaint later, once you are out of their hands.
2. There is no statute in VA requiring you to even carry ID, much less show it upon LEO demand. Quick exception: VA law allows a police officer to arrest a person who he believes will ignore a summons. Some police use an ID refusal as evidence the person won't show up in court ona misdemeanor summons. Another exception: Drivers license when driving. Edited to add: some localities may have a stop-and-identify ordinance that requires you to identify yourself to an LEO if he demands it, although there is federal court law that requires him to have reasonable articulable suspicion in connection with a crime.
3. If an LEO demands your CHP,you must exhibit it, along with proper ID. This is not to say that you can't attempt a diversion by pointing out, "No CHP needed for OC, sir." Nor does it say that you can't leave the CHP at home when OCing.You don't need it for OC. If you don't have it with you, you can't show it.
4. Police are authorized to temporarily seize your weapon for officer safety and safety of others nearby under specific conditions given in court opinions.Whether you are cooperating is not one of theconditions, although it could have a bearing on the matter.
5. Your proper response will depend on how far you want to go and what you are willing to risk. For example, you will want to decide if during a traffic stop for speeding you are willing to risk a ticket instead of a warning by standing firm on your rights. Are you willing to be wrongfully arrested?
6.Assuming you are willing to take some risk and want to stand up for your rights, you could
politelysay, "Officer, I know you are just doing your job, but:
A."I donot consent to this encounter."
B. "I have nothing to say in the absence of my attorney."
C."I do not consent to any searches."
D. "I do not consent to seizing my gun."
E. "Am I free to go?"
Memorize these, practice them, run through scenarios in your mind. These employ your most powerful advantage--your rights.They also set the stagefor a complaint later. Or a legaldefense.
Realize there are numerous ways police can respond to the abovestatements. I say "can respond" without respect to legality or whether they have the authority for any given response.Your rights are only ink on paper. Whether the police choose to recognize them or not, willfully or from ignorance, even if you assert them verbally, isanother matter.Becompletelyprepared mentally--
don't let it shock youor surprise you—for the police to ignore your assertion of a right.Or question youabout why you areasserting itifyou supposedly are doing nothing wrong.
Again, welcome to the 4th Amendment.A good place to start learningabout your4th Amendment rights, police encounters,and guns is the landmark case
Terry vs Ohio. [url]http://tinyurl.com/2ue6hy[/url]
