E-checked

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I can only say this with the upmost emphasis and conviction.

Do not, I repeat do not, under any circumstances, at any point, allow your recorder to be removed from your posession or deactivated.

Take every precaution you can. Stay in sight of surveillancevideo cameras, carry multiple concealed and constantly running digital video recorders.

Spend the extra money, it will either end up saving you money, saving your life or saving your valuable time in court.

I am speaking from personal experience: do not allow your only means of evidence to fall out of yours hands.

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MudCamper wrote:

Perhaps it's time to start carrying 2 voice recorders. One obvious, and one hidden, or one of the various new DVR wrist watches.

Then ask them why they turn off the recorder. Ask them what they have to hide. Meanwhile record everything for later playback to their superiors in a complaint.

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If I'm going to an area where there is a possibility of a civil rights violation (here in Oregon that's up North) I carry a piece of crap recorder with horrid sound and a good one with 17 hours capability and a USB plug built in.

We have to inform we are recording here so when/ifthe crappy is found and turned off, one the good one is still running. Also have video surveillance by the wife who CC's as backup.

Standard Operating Procedure due to cops that "accidentally" deactivate a recorder while searching a law abiding citizen.

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And you can darned well bet that none of the officers deactivated THEIR voice recording devices, though!

The following information was excerpted from links posted at the thread:

California Open Carry Information
Consolidated links to information about open carry in California



Reasonable suspicion[/b] is a legal standard in United States law that a person has been, is, or is about to be engaged in criminal activity based on specific and articulable facts and inferences. It is the basis for an investigatory or Terry stop by the police and requires less evidence than probable cause, the legal requirement for arrests and warrants. Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; such suspicion is not a mere hunch[/b]. Police may also, based solely on reasonable suspicion of a threat to safety, frisk a suspect for weapons, but not for contraband like drugs. A combination of particular facts, even if each is individually innocuous, can form the basis of reasonable suspicion.


"To determine whether reasonable suspicion existed for a particular stop, the totality of the circumstances[/b], as known to the officer at the inception of the stop, [or, in this case, at the time of the continued detention,] must be considered." Arnold v. State, 601 So. 2d 145, 149 (Ala. Crim. App. 1992)


[/b]
Circumstances giving rise to a reasonable and articulate suspicion[/b] frequently involve some of the following: nervous, furtive or evasive behavior; unprovoked flight; knowledge of the site as a location of certain criminal activity; temporal and spatial proximity to the scene of a crime; physical description of suspects; knowledge of a suspects past criminal record or behavior; tips provided by identifiable subject.


Probable cause n. sufficient reason based upon known facts to believe a crime has been committed, or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant[/b], search without a warrant, or seize property in the belief the items were evidence of a crime.


We have described reasonable suspicion[/b] simply as a particularized and objective basis for suspecting the person stopped of criminal activity, and probable cause[/b] to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found. We have cautioned that these two legal principles are not “finely-tuned standards” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence.


In Terry v. Ohio, the Supreme Court ruled that a person can be stopped and frisked [/b]by a police officer based on a reasonable suspicion.

Further, a person is not required to answer any other questions (ed. note: other than name, and only if so required by state statute) during a Terry stop, and the detention must be brief.

However, reasonable suspicion may not apply merely because a person refuses to answer questions, declines to allow a voluntary search, or is of a suspected race or ethnicity.


A "Terry search[/b][/b]" (from Terry v. Ohio) is a pat-down of the subject's outer garments for weapons only, based on reasonable suspicion. Even if the officer has reasonable suspicion to conduct a Terry search, by asking for and getting consent, the officer can expand the search beyond a mere pat-down for weapons[/b].


Our "stop and frisk[/b]" decisions begin with Terry v. Ohio[/b], 392 U. S. 1 (1968). This Court held in Terry: "[W]here a police officer observes unusual conduct[/b] which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous[/b], where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."


Handcuffing does not equal arrest. Handcuffing in a Terry (articulable reasonable suspicion) situation will be judged by the standard of objective reasonableness based on the Supreme Court's Graham v. Connor decision. Therefore, although you cannot handcuff everyone in investigative detentions, the handcuffing of persons under suspicion of committing crimes does not automatically equal an arrest. If reasonable suspicion exists to suspect the subject has committed a crime, handcuffing may be reasonable.


[/b]
Once the suspect poses no risk to the officer, the detention by handcuffs turns into an arrest (a de facto arrest) that must be supported by probable cause.[/b] See Melendez v. Sheriff of Palm Beach County, 743 So. 2d 1145, 1148 (Fla. 4th DCA 1999).


Handcuffing a suspect after a temporary detention (Terry Stop) is generally considered an arrest unless exceptional circumstances exist[/b][/b]. Bradley v. State, 494 So.2d 750 (Ala. Cr. App., 1985), affirmed 494 So. 2d 772 (Ala. 1986). The test for arrest is whether or not a reasonable person, in the suspect's position, would have understood that he was under arrest Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984).


This is particularly so when the officer testifies that the suspect was not under arrest but that he was handcuffed, with no reason given for the handcuffing. Lamar v. State, 578 So. 2d 1382 (Ala. Cr. App., 1991). This will be ruled an arrest every time.


This does not mean, however, that an arrest takes place every time an officer handcuffs a suspect he has placed under temporary detention. Examples where courts have held no arrest are as follows:


1. The suspect voluntarily accompanied the officer to the police station and was placed in handcuffs because of departmental policy, Darden v. State, 571 So. 2d 1272 (Ala. Cr. App., 1990). This was a close call and the court made it clear that departmental policy should not be used as an excuse - there generally must be more.


2. Handcuffing after the suspect had disobeyed an order to raise his hands and had made furtive gestures, U.S. v. Taylor, 716 F. 2d 701 (9th Cir., 1983).


3. Handcuffing of two men suspected of armed bank robbery where a third man was suspected to be in the vicinity and the suspects appeared extremely nervous, U.S. v. Bautista, 684 F. 2d 1286 (9th Cir., 1982).


4. Handcuffing in light of the suspect's flight and the violent nature of the suspected crime: rape, State v. Friederick, 663 P. 2d 122 (1983).


5. Handcuffing where the officer was informed that the suspect had threatened to kill someone and the officer verified the suspect's violent behavior, U.S. v. Merkley, 988 F. 2d 1062 (10th Cir., 1993).


6. Handcuffing of an armed robbery suspect where the officer feared that an accomplice might be hiding in the suspect's car, U.S. v. Saffeels, 982 F. 2d 1199 (8th Cir., 1992).


7. Handcuffing where the officer could reasonably anticipate he might have to go to the aid of his fellow officers, U.S. v. Crittendon, 883 F. 2d 326 (4th Cir., 1989).


Even if handcuffs are properly used on a suspect during a temporary detention, they should be removed as soon as it is safe to do so. A recent Florida case held that the continued use of handcuffs after the suspect had received a pat-down and no weapons were found was illegal. [/b]The court stressed that the suspect had offered no resistance, did not make any threats and was not particularly belligerent, Reynolds v. State, 592 So. 2d 1082 (Fla., 1992).

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Sans RAS, it seems pretty obvious our friend here got stepped on pretty hard.

Is someone arguing that?

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" He patted me down and found my voice recorder, and conveniently turned it off.. :?"

I've never had the pleasure of being stopped while OC'ing, but I do have a mini digital recorder and figured as much. I plan on getting one of those that is disguised as an ink pen and sits in your shirt pocket. Still keep the other one as a red herring.

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"Do not, I repeat do not, under any circumstances, at any point, allow your recorder to be removed from your posession or deactivated."


And how do you suggest you do this when you are detained and a cop with a gun pointed at you?

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Subterfuge is an unfortunate necessity when exercising your rights in California.

The recording applications are nice for cellphones because they require a password to access or modify the recordings, obvious tape recorders are easy to turn off and because they are usually bulkier, easier to forget. You are definetely on the right track with the incognito recorder.

I purchased one of these a few days ago: http://www.brickhousesecurity.com/dp4802.html

I'll let you know how it works.

It is easy to let your vigilance slip, and to forget your recorder or forget to turn it on.

But you absolutely need to stay in sight of video cameras or witnesses.

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heliopolissolutions wrote:

Subterfuge is an unfortunate necessity when exercising your rights in California.

The recording applications are nice for cellphones because they require a password to access or modify the recordings, obvious tape recorders are easy to turn off and because they are usually bulkier, easier to forget. You are definetely on the right track with the incognito recorder.

I purchased one of these a few days ago: http://www.brickhousesecurity.com/dp4802.html

I'll let you know how it works.

It is easy to let your vigilance slip, and to forget your recorder or forget to turn it on.

But you absolutely need to stay in sight of video cameras or witnesses.

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Only drawback is the battery life - 2 hours.

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http://www.sandisk.com/products/sansa-music-and-video-players/sandisk-sansa-clip-mp3-players?tab=additionalInfo

this is one of the recording devices i use, ive recorded up tp 3.5 hours and still had plenty of battery life and recording space left. its small and easy to hide, and picks up audio really well.

though i havnt purchased one of these shirts, another open carrier showed it to me. it has interal pockets for hiding an audio recorder or W/E, maybe ammo or something if you wanted. the OCer that showed it to me actually kept a "decoy" recorder on his belt so if a LEO took it and turned it off, he would have a hidden backup in his shirt and still capture everything.

http://www.511tactical.com/browse/Home/All-Products/Shirts/Covert-Shirts/Covert-Dress-Shirt/D/30100/P/1:100:50000:50200:50206/I/72170

the new apple ipod nano is audio and video capable. i recorded 2.75 hrs of straight video before the battery life ran low (still wasnt dead though) its pretty small, it would have to be in an obvious position to use it for constant vidoe, and unlike the iphone, doesnt have a security code to stop recordings.

the sansa clip, ipod, and iphone all sync to your computer really easily too.

another thing i want to do (i think this was the idea of bad_ace) is to tear apart a magazine and put an audio recorder in it, but have it hold a few rounds on top so it would look like a normal mag if inspected.




ETA: the downside of using the iphone (i found out the hard way) is that if you get a phone call during a LEO encounter, your recording stops. you can turn on "airplane mode" to stop all incoming or outgoing calls/ sms/ mms/ internet use, but then its no fun. one thing great about the iphone though, is you can keep it in your pocket, and have your headphones around your neck, it looks like you might have been sitting at starbucks (the best coffee shop ever) listening to some music, but you have a recorder going. the ipod nano will also record using the same headphones/mic that the iphone comes with.

ETA again: the standard headset/mic that comes with the iphone is great, it picked up a cop yelling "hey you" from 50 ft away with my back turned to him.

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Decoligny wrote:

heliopolissolutions wrote:

Subterfuge is an unfortunate necessity when exercising your rights in California.

The recording applications are nice for cellphones because they require a password to access or modify the recordings, obvious tape recorders are easy to turn off and because they are usually bulkier, easier to forget. You are definetely on the right track with the incognito recorder.

I purchased one of these a few days ago: http://www.brickhousesecurity.com/dp4802.html

I'll let you know how it works.

It is easy to let your vigilance slip, and to forget your recorder or forget to turn it on.

But you absolutely need to stay in sight of video cameras or witnesses.

Click to expand...

Only drawback is the battery life - 2 hours.

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I've been researching these ballpoint pen/recorders. I haven't seen a good review yet. The best one I saw was one that cost $150. The $45 ones either don't work or only work for a short time with poor audio and marginal video. I saw some that were in a wrist watch, bad reviews on those too. I think the best idea is to have a friendly witness with you to use a quality vid cam. I seldom leave home without my wife. She either wants me as a driver of wants to get out of the house. She is the designated camperson.

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call the police department and talk with internal affairs. Have them launch an official investigation. Do it sooner then later.

I wonder if the FBI would investigate these types of issues with law enforcement.

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crash5150 wrote:

call the police department and talk with internal affairs. Have them launch an official investigation. Do it sooner then later.

I wonder if the FBI would investigate these types of issues with law enforcement.

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As this contact occured in public, and in their official capacity,policecan not even remotely argue "reasonable expectation of privacy" as a reason for deactivating your device.

A Terry Search allows them to perform a pat-down of your person only if they have "reasonable suspicion" that you may be concealing a weapon. Your carrying of an exposed, unloaded firearm is insufficient justification for a claim of reasonable suspicion, both to that of a concealed weapon or criminal activity.

Only identifiableweapons may be removed from your person during a pat-down.

The reason why the device was deactivated is painfully clear:In court, a LE officer's word is gold. Deactivation of the device had the effect of neutralizing an "impartial witness" who's "testimony" is platinum.

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My phone sucks. It has a recorder feature but it only records for 60 seconds at a time. Great for "notes to self" but for recording anything else it's worthless.

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A ECNALG wrote:

A Terry Search allows them to perform a pat-down of your person only if they have "reasonable suspicion" that you may be concealing a weapon.

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This is close to being correct.

A Terry stop can happen if the officer has "reasonable and articulable suspicion" that you have or are about to commit a crime. A Terry search can happen if during the Terry stop the officer perceives you as being "armed and dangerous." During a Terry search, an officer can only pat down the detainee, he can't rifle through pockets, he can't remove anything unless he perceives it as being a weapon.

Carrying a concealed weapon isn't inherently a crime in this state. If an officer knows for a fact that you are carrying a concealed weapon, that doesn't give them the ability to conduct a Terry stop or a search.

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bigtoe416 wrote:

A ECNALG wrote:

A Terry Search allows them to perform a pat-down of your person only if they have "reasonable suspicion" that you may be concealing a weapon.

Click to expand...

This is close to being correct.

A Terry stop can happen if the officer has "reasonable and articulable suspicion" that you have or are about to commit a crime. A Terry search can happen if during the Terry stop the officer perceives you as being "armed and dangerous." During a Terry search, an officer can only pat down the detainee, he can't rifle through pockets, he can't remove anything unless he perceives it as being a weapon.

Carrying a concealed weapon isn't inherently a crime in this state. If an officer knows for a fact that you are carrying a concealed weapon, that doesn't give them the ability to conduct a Terry stop or a search.

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Thank you for the correction and clarification. In my attempt to be brief, I was a bit too brief, and misstated. I should have referred back to my earlier post.

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Many similarities to my case. Fortunately when I win my appeal I will have a civil case to pursue.

Sterile carry is the answer. . . I do find it interesting that I carried unquestioned in Azusa for months and not one iota of interaction. . . I think we are reaching that point now that since the officers are informed they will make it a point to "e" check us.

I think OCDO California is reaching a critical mass where we will have to start fighting back instead of letting them pick us one at a time. Organization, fund raising and such are all things we should more seriously be considering.

If I wasn't still unemployed and practically broke I would be doing more for the movement.

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Theseus wrote:

Many similarities to my case. Fortunately when I win my appeal I will have a civil case to pursue.

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When? Can you appeal after having lived in AZ for 10 years?

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In addition to the material that I posted near the beginning of this thread (see handcuffing after Terry), I submit the following...

Abridged version of a U.S. District Court case, with emphasis in bold type:

MATTHEW A. ST. JOHN v. DAVID McCOLLEY and THE SIX UNKNOWN OFFICERS OF THE ALAMOGORDO DEPARTMENT OF PUBLIC SAFETY

http://www.nmcourt.fed.us/Drs-Web/view-file?full-path-file-name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fcadd%2F2009%2F09%2F08%2F0002561429-0000000000-08cv00994.pdf


This is a 42 U.S.C. § 1983[/b] case brought by Plaintiff Matthew St. John[/b] after he was
escorted out[/b] of the Aviator 10 Movie Theater in Alamogordo ("Theater") and patted down[/b].

No contraband or additional weapons were found on Mr. St. John and a police database check revealed that he possessed the gun lawfully.

Mr. St. John claims that he was subjected to an unreasonable seizure[/b] when Defendants removed him from the Theater and that he was subjected to an unreasonable search[/b] when Defendants patted him down.

A seizure under the Fourth Amendment occurs when "a reasonable person would have believed that he was not free to leave."[/b] In determining whether a person has been seized, this Court employs the factors set forth by the Tenth Circuit in United States v. Hill, 199 F.3d 1143 (10th Cir. 1999). Those factors, which are non-exclusive, require the Court to consider:

1) the threatening presence of several officers;
2) the brandishing of a weapon by an officer;
3) some physical touching by an officer;
4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory;
5) prolonged retention of a person's personal effects;
6) a request to accompany the officer to the station;
7) interaction in a nonpublic place or a small, enclosed place;
8) and absence of other members of the public.

Applying the Hill factors, it is evident that Mr. St. John was seized.
[/b]
Because, from the time that Defendants approached Mr. St. John to the time when they physically released him, Mr. St. John reasonably believed that he was not free to leave, a seizure occurred.[/b]

The undisputed facts establish that Mr. St. John's seizure was unreasonable. Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime[/b].[/b] Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely "showing a gun", which is not illegal in the State of New Mexico[/b].[/b] Nor was there any reason to believe that a crime was afoot….Candidly, as the Ninth Circuit noted in a somewhat similar case, one would expect someone engaged in shady business to act in a more stealthy fashion than Mr. St. John did here.[/b] See Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377 (9th Cir. 1989). Moreover, Mr. St. John's lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention[/b]….United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000)…. In United States v. King, 990 F.2d 1552 (10th Cir. 1993) the Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed[/b] a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity[/b].

Under the community caretaker exception[/b], officers may seize an individual in order to "ensure the safety of the public and/or the individual." Such stops are permissible when "articulable facts[/b] indicate the need to assure the safety of the public or the individual being detained." U.S. v. Luginbyhl, 321 Fed.Appx. 780, 783 (10th Cir. April 16, 2009).

More broadly, Defendants' actions are not protected by the community caretaker exception because they had no basis for believing that anyone's safety was at risk[/b][/b]. Defendants simply received a report that an individual was carrying a firearm in a location where individuals could lawfully carry firearms. They received no indication that Mr. St. John was behaving suspiciously or in a threatening manner. When Defendants arrived, they found Mr. St. John sitting peaceably in the Theater preparing to watch a movie. They had no basis for believing that Mr. St. John's use of the weapon was likely to become criminal, cause a public disturbance or pose a threat to safety. Nor did anyone seem particularly alarmed by Mr. St. John's weapon.

In sum, Defendants had no reason[/b] for seizing Mr. St. John other than the fact that he was lawfully carrying a weapon in a public place[/b]. Because New Mexico law allows individuals to openly carry weapons in public—and Mr. St. John had done nothing to arouse suspicion, create tumult or endanger anyone's well-being—there were no articulable facts[/b] to indicate either criminal activity or a threat to safety. Accordingly, Defendants' seizure of Mr. St. John violated his Fourth Amendment rights[/b].

If, during the course of a valid investigatory detention, an officer has an articulable and reasonable suspicion that a suspect is armed and dangerous, the officer may conduct a limited protective search[/b]. Such a search must be reasonably related in scope to the circumstances which justified the interference in the first place, and should be limited to ensuring that the suspect is unarmed[/b]. As discussed above, Defendants' detention of Mr. St. John was not a "valid investigatory detention."[/b][/b] Defendants had no reason to suspect that Mr. St. John was involved in, or was about to become involved in, any criminal activity. Nor did they have any reason to believe that Mr. St. John posed a safety threat. Accordingly, Defendants' search of Mr. St. John was invalid[/b].

Additionally, Defendants lacked any reasonable suspicion[/b] for believing that Mr. St. John was armed and dangerous[/b], as required by Tenth Circuit jurisprudence. See Davis, 94 F.3d at 1468.

The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. See N.M. Stat. § 30-7 et seq. Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure were clearly established, and a reasonable officer is presumed to know clearly established law[/b],[/b] see, e.g., Harlow, 457 U.S. at 818-9, qualified immunity does not protect Defendants[/b].