imported post
Beau wrote:
SNIP ...If you want to assert your rights don't provide anything...
No offense to Beau, fellas, but I think this isdangerous advice.
I am not a lawyer. I don't want to hold myself up as some sort of infallible expert, but I have devoted a lot of thought to this.
I consider that if a person wants to assert his rights, the best course is to
politely, verbally refuse consent while complying with orders.
During a police encounter, the advantage lies with the cop. He has thepower of the state behind him.He can lie. He can plant evidence. He can claim you said things you didn't, orthat you did things you didn't. Onissues where the law is vagueor uncertain, the court can side with the cop.A legal defense will costthe citizen money. What is the penalty for an obstruction charge?
Being polite, especially if recorded (where legal), makes you look good.
Verbally refusing consent isasserting your rights. The courts say that your consent automatically makes what would otherwise be an illegal search or seizure into a legal search or seizure. See the video linked below for more information on this.[suP]1[/suP]
If you refuse consent to the encounter itself, to seizures (of your person or property), and to searches, you are asserting your Fourth Amendment rights against unreasonable search and seizure. The burden then shifts to the cop to have all his legalities in order. If not, then he is open to your counter-attack by way of formal complaint or lawsuit.
But it is important to understand that yourcounteractions come
after the encounter, when you are out of his clutches.
During the encounter, you have no way to know for sure whether he has reasonable articulable suspicion (RAS) of a crime in orderto detain (seize) you. Remember, it is not whether
you know were doing nothing wrong; it is whether the
cop has legal grounds to suspect you are, were, or about todoing something illegal.
You have no way to know for sure that somebody did not call 911 and make an embellished or false report that gave the cop RAS. What if the cop lies to you, saying he sees your gun, but deliberately withholds that he received a report that you were making verbal threats with your hand on your gun?
Even if you did know everything reported to the cop,you would then also have to know whichkinds circumstances or sets of circumstancesthe courts have ruled are sufficient for RAS to justify a detention.
Most of the stop-and-identify statutesI have read contain some element requiring the cop to first have RAS. This arises from the Supreme Courtruling
Hiibel v
6th Judicial Court.[suP]2[/suP]The short version is that a cop may only demand you identify yourself verbally, and then only if he has RAS to detain you. But, remember how hard it is to have a high degree of certainty whether the cop does or doesn't have genuine RAS. If you guess wrong on his RAS, and there is a stop-and-identify statute, you may be open to an obstruction charge if you refuse to identify
Now, lets throw a wrench into the works. Lets say the local jurisdiction in which you are standing during your detention has a stop-and-identify
local ordinance that you did not know about. If youguesswrong about whether he has genuine RAS and refuse to identify, you open yourself to whatever is the penalty forviolating the local ordinance (if there is one.)
For myself, if a cop demands my ID, I am going to give it to him while verbally refusing consent.If I do this, I am covered against violating some stop-and-identify statute or ordinance I didn't know about.It makes me look cooperative,meaning the sheeple can't paint me as obnoxious.
COP: "Hey, you. C'mere." (firm, commanding tone)
ME: "No offense, officer. I know you are just doing your job. But I do not consent to this encounter. Am I free to go?"
COP: "Why are you carrying that gun?"
ME: "No, offense officer. I do not consent to any searches or seizures. I have nothing to say to you without my attorneys."
COP: "Lemmesee someID!" (firm commanding tone)
ME: (while reaching for wallet) "I will provide my ID, officer. I do not consent to providing it, but since you have demanded it in a tone that makes me think compliance may be compelled, I will give it you."
The same scenario can play out with a cop's demand to exhibit an LTCF.
The key point is that as long as you politely, verbally refuse consent, you are exercising your rights in a way that does not accidentally violatea legal point about which you didn't know, and you areprotecting your legal position should the encounter turn more sour. After the encounter, when you are no longer in the cop's clutches,it will be your turn to come out swinging with a formal complaint or lawsuit.
One final point. Politeness, and civility are important. If you are recording the encounter, the last thing you want is to make it a test of wills and be searched forofficer safetyor arrested and searched. If the cop's integrity is poor, the recording will likely be erased. If you simply must show some unwillingness to have your rights impinged,maybe display some mild indignation. At the most.
1.
Busted by FlexYourRights.org:
http://www.youtube.com/watch?v=yqMjMPlXzdA
2.
Hiibel: http://www.law.cornell.edu/supct/html/03-5554.ZO.html