DrTodd
Michigan Moderator
imported post
zigziggityzoo wrote:
[align=JUSTIFY] In Freeman, supra at 493-494, the defendant was sitting in his car in a private parking lot near a darkened house. The motor was running, the parking lights were on and it was late at night. Two officers approached the defendant and “asked” him to exit his car and to produce identification and registration. The Supreme Court ruled that defendant had been seized “when the officers asked him to leave his automobile and to produce identification,” noting specifically that one of the officers testified that defendant was not free to go “until I found out who he was and why he was parked there.” Id. at 494-495 & n 3 (emphasis supplied). Because the circumstances did not provide a sufficient basis for a reasonable suspicion of criminal activity to support an investigatory stop, the stop was unwarranted. Id. at 496-497.[/align] [align=JUSTIFY] We believe that the difficulty in this case relates to the sometimes ambiguous use of the term “asked.” While this term is often used to signify a request for voluntary action, it is many times used to refer to a polite instruction to perform a mandatory action. In Freeman, there was apparently no argument about whether the defendant complied with a voluntary request or was effectively ordered or required by the police to exit his car and produce identification. The prosecution in Freeman argued rather that there was sufficient basis to support the officers’ suspicion in that case that criminal activity might be afoot. Freeman, supra at 495. It was already well established at the time of the Freeman decision that a person could waive the protection against unreasonable searches and seizures by consenting to a search. See, e.g. People v Rosales, 406 Mich 624, 629; 281 NW2d 126 (1979) (further search after a Terry protective search requires consent or probable cause).[/align] [align=JUSTIFY]Against this background, it would have made no sense for the Freeman Court to have concluded that a request for consensual production of an item constituted a “search” or “seizure” requiring objective justification. In context, we believe that the references by the Freeman Court to the officers in that case having “asked” the defendant to produce identification and exit his car reflected mandatory directions, not requests for voluntary action. Thus, Freeman, properly understood, does not require a holding that reasonable suspicion is necessary for a police officer to ask a person to voluntarily produce identification.
[/align][align=JUSTIFY]I hope this helps in understanding why I believe that a LEO simply "asking" for a voluntary action is not dependent on RAS... but I may be wrong:shock:
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zigziggityzoo wrote:
Well, actually I did read People v. Freeman but then I read People v Shankle, (1998) which states: (sorry I couldn't indent the whole section which follows)
[align=JUSTIFY] In Freeman, supra at 493-494, the defendant was sitting in his car in a private parking lot near a darkened house. The motor was running, the parking lights were on and it was late at night. Two officers approached the defendant and “asked” him to exit his car and to produce identification and registration. The Supreme Court ruled that defendant had been seized “when the officers asked him to leave his automobile and to produce identification,” noting specifically that one of the officers testified that defendant was not free to go “until I found out who he was and why he was parked there.” Id. at 494-495 & n 3 (emphasis supplied). Because the circumstances did not provide a sufficient basis for a reasonable suspicion of criminal activity to support an investigatory stop, the stop was unwarranted. Id. at 496-497.[/align] [align=JUSTIFY] We believe that the difficulty in this case relates to the sometimes ambiguous use of the term “asked.” While this term is often used to signify a request for voluntary action, it is many times used to refer to a polite instruction to perform a mandatory action. In Freeman, there was apparently no argument about whether the defendant complied with a voluntary request or was effectively ordered or required by the police to exit his car and produce identification. The prosecution in Freeman argued rather that there was sufficient basis to support the officers’ suspicion in that case that criminal activity might be afoot. Freeman, supra at 495. It was already well established at the time of the Freeman decision that a person could waive the protection against unreasonable searches and seizures by consenting to a search. See, e.g. People v Rosales, 406 Mich 624, 629; 281 NW2d 126 (1979) (further search after a Terry protective search requires consent or probable cause).[/align] [align=JUSTIFY]Against this background, it would have made no sense for the Freeman Court to have concluded that a request for consensual production of an item constituted a “search” or “seizure” requiring objective justification. In context, we believe that the references by the Freeman Court to the officers in that case having “asked” the defendant to produce identification and exit his car reflected mandatory directions, not requests for voluntary action. Thus, Freeman, properly understood, does not require a holding that reasonable suspicion is necessary for a police officer to ask a person to voluntarily produce identification.
[/align][align=JUSTIFY]I hope this helps in understanding why I believe that a LEO simply "asking" for a voluntary action is not dependent on RAS... but I may be wrong:shock:
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