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Thread: Court: Being polite to cop made consent 'voluntary'

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    Regular Member Repeater's Avatar
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    Court: Being polite to cop made consent 'voluntary'

    Be careful out there! Always make your refusal to consent clear and unambiguous, as this case illustrates:

    Defendant's merely respecting officer's asking questions still made it voluntary

    The officer’s request to talk to the defendant was nonthreatening and noncoercive. The fact the defendant was respecting the officer’s wanting to ask questions and not feeling like he should just walk away was enough to make it consent. United States v. House, 2010 U.S. Dist. LEXIS 110740 (D. Utah October 18, 2010):

    Although defense counsel argues that Officer Daley made a “show of force” by issuing commands at the defendant, the evidence presented at the hearing does not support this conclusion. In fact, the defendant’s own testimony demonstrates that Officer Daley’s request to speak with him was presented in a non-intrusive, non-aggressive manner. For example, when defense counsel asked the defendant, “Did you feel like you were free to leave at that point and walk away?” the defendant responded, “Well, sure, but I ain’t going to walk away from an officer trying to ask me questions.” (Tr. at 52.) Similarly, when defense counsel attempted to clarify the officer’s alleged “commands” by stating: “So [the officer] asked you to get off the phone? Or he’s making some indication you need to get off the phone?” The defendant responded, “No. He says, can I ask you a few questions. I told him, hold on, because I was talking to somebody at that point.” (Tr. at 52.) There is simply no evidence that Officer Daley used a commanding or threatening manner or tone of voice. Finally, the consensual nature of the encounter is not undermined by Officer Daley’s failure to expressly tell the defendant he was free to leave. voice. Finally, the consensual nature of the encounter is not undermined by Officer Daley's failure to expressly tell the defendant he was free to leave. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”); ...
    Update: This is addressed in my CLE presentation on societal understandings and vehicle stops, next at NORML Key West.

    Our societal understanding is that we do not walk off from police officers; we at least show the courtesy of talking to them, and the police exploit that. My point is that the courts must respect that understanding. Otherwise, does this mean that citizens need to exercise their right to be discourteous to avoid the confrontation? As to our societal understandings underlying Katz's reasonable expectation of privacy, see, e.g., Minnesota v. Olson, 495 U.S. 91, 100 (1990):

    Because respondent’s expectation of privacy in the Bergstrom home was rooted in “understandings that are recognized and permitted by society,” Rakas, supra, at 144, n. 12, it was legitimate, and respondent can claim the protection of the Fourth Amendment.
    What is expected of the “reasonable person” v. reasonable police officer?

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    Regular Member Jack House's Avatar
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    Officer Daley?

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    Key point: "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”

    One can be very polite and still refuse to answer questions without being confrontational. "I have nothing to say" is an appropriate and acceptable response.

    "May I go, now?" is also acceptable.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    Regular Member Deanimator's Avatar
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    Quote Originally Posted by since9 View Post
    Key point: "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”

    One can be very polite and still refuse to answer questions without being confrontational. "I have nothing to say" is an appropriate and acceptable response.

    "May I go, now?" is also acceptable.
    Say whatever is REQUIRED and only REQUIRED by law, such as in Ohio, informing when carrying concealed. Then:
    "Officer, am I free to leave?" Keep asking until you receive an explicit yes or no.
    If yes, leave.
    If no, "Officer I have nothing to say without benefit of counsel." Shut up until your lawyer is present and follow his directions. Do NOT speak without benefit of counsel regardless of ANY inducements or threats.

    A sane, non-criminal cop will eventually give up. Talking to a deranged or criminal cop will not help you in ANY way. Any threats will either be impotent or likely to result in the cop's subsequent inability to support his family.

    And where lawful, ALWAYS carry and use a voice recorder.

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    Quote Originally Posted by Deanimator View Post
    And where lawful, ALWAYS carry and use a voice recorder.
    There was a court ruling of of Virginia (I think; it was wherever the motor cyclist was stopped by a cop and recorded the interaction, prompting a charge of illegal recording) that said that official interactions are not private conversations and may be recorded.

    That ruling would not be controlling in any other State. But, in any jurisdiction where non-private conversations may be recorded, this case should be considered and persuasive.

    I don't know of any State where you may not record public interactions, but there probably are a few.

    In Alabama, record away!

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    One-party consent to surreptitious recording should be lawful everywhere

    Excellent argument for one-party consent - good read.
    http://www.renewamerica.com/columns/gaynor/091023

    I thought that the motorcyclist that recorded the LEO and got charged for it occurred in Maryland.

    EDIT: This is probably the incident to which you referred Eye:
    http://reason.com/blog/2010/05/29/ma...ay-its-illegal
    Last edited by Grapeshot; 11-05-2010 at 10:09 PM. Reason: added
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    Quote Originally Posted by Grapeshot View Post
    Excellent argument for one-party consent - good read.
    http://www.renewamerica.com/columns/gaynor/091023

    I thought that the motorcyclist that recorded the LEO and got charged for it occurred in Maryland.

    EDIT: This is probably the incident to which you referred Eye:
    http://reason.com/blog/2010/05/29/ma...ay-its-illegal
    Thanks, GS. You are right. That is the case, and it was in Maryland. Keep me straight.

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    At the risk of sounding like a broken record, I have a problem with asking if (you/I) (are/am) 'free to (go/leave)'.

    How many times have you folks watched or listened to a recorded interaction where the occifer explicitly states that the person is NOT being detained, and yet is also told they are not 'free to leave', when that question is asked.

    DO NOT ASK IF YOU ARE FREE TO GO...ESTABLISH IT AS FACT.



    Am I under arrest? Open the bid with the highest card as they must 'trump' you to retain authority. I dare say 99.9% of the time this will catch them off guard and they will respond in the negative. This does two things:
    1: If you ARE under arrest, you now know to **** to protect yourself.
    2: If you are NOT under arrest, you have established such through their own statements, and just trumped any future claims of 'resisting arrest' as you peacefully walk away (after the following).


    Am I being detained? Same as above....establish through their own statements that you are NOT being detained. If they indicate that you ARE being detained, DEMAND RAS. Do not relent. It would seem to be general consensus that they are not required to articulate their suspicion to YOU, just that they have it for the judge, but I maintain that if they truly do have RAS then it should be no problem to voice to ME it in the instant matter in order for me to know that they are not playing on (my) ignorance and trying to trick (me) into voluntarily surrendering my rights secured by the fourth and fifth.

    If they indicate that you are NOT being detained, DO NOT ASK if you are free to leave...make it a statement that you ARE leaving:

    "Thank you. Having established through your own statements (Emphasise that line!), that I am NOT under arrest NOR being detained I am terminating this encounter and departing forthwith (or 'leaving immediately' if that more natural to your speech patterns). I leave you in peace, and bid you good day."

    Then turn and WALK. Any action on their part that hinders your free movement from that point on is a direct CRIMINAL violation of 18USC sec 242. Remember....recorders are your friends.

    I have had folks say that the whole "departing forthwith" and "I leave you in peace" thing was a little over the top, but I wanted to include a formal statement to establish that I was offering no resistance to any exercise of lawful authority but simply removing myself from their presence and the olde-tyme language pattern seemed to get the point across the best.

    (caveat: do the research to determine if your state has a clearly defined 'stop and identify' statute. )

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    Your post presupposes that if a person is not under arrest and not being detained, then they are free to go.

    Not being a lawyer, I cannot say for certain that establishing that one is not under arrest and not being detained means that he is free to go.

    If you have a citation that establishes that, I'd appreciate your posting it. If not, I'd like a lawyer (or Mike) to pass on your claim.

    Until then, I'll continue to use "Am I free to go?"

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    Regular Member Deanimator's Avatar
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    Quote Originally Posted by Phssthpok View Post
    At the risk of sounding like a broken record, I have a problem with asking if (you/I) (are/am) 'free to (go/leave)'.

    How many times have you folks watched or listened to a recorded interaction where the occifer explicitly states that the person is NOT being detained, and yet is also told they are not 'free to leave', when that question is asked.

    DO NOT ASK IF YOU ARE FREE TO GO...ESTABLISH IT AS FACT.
    If I'm not free to leave, I'm being detained, no matter WHAT the cop calls it. I don't care if he says I'm being examined by the Holy Inquisition. If I can't leave, I'm being detained and will say NOTHING to the police beyond that point.

    All too often, cops don't know or care about gun laws. The situation is no better regarding 4th and 5th Amendment rights. Don't be needlessly specific.

    "Am I free to leave?" If so, leave.
    If not, "I have nothing to say without benefit of counsel." Stand on that like a rock.

    That's straight from my lawyer who's got 20+ years of dealing with these situations.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by eye95 View Post
    Your post presupposes that if a person is not under arrest and not being detained, then they are free to go.

    Not being a lawyer, I cannot say for certain that establishing that one is not under arrest and not being detained means that he is free to go.

    If you have a citation that establishes that, I'd appreciate your posting it. If not, I'd like a lawyer (or Mike) to pass on your claim.

    Until then, I'll continue to use "Am I free to go?"
    Really? You are really arguing this? If you are not being detained you are free to go bottom line. Otherwise you need to cite to support your argument.

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    Quote Originally Posted by sudden valley gunner View Post
    Really? You are really arguing this? If you are not being detained you are free to go bottom line. Otherwise you need to cite to support your argument.
    Another poster made the positive assertion that if one is not detained or arrested, he is free to go. I challenged him on his assertion. It is his responsibility to cite the law supporting his assertion. Pushing it off on the challenger does not add any credibility to his assertion.

    I am arguing nothing. Moving on until he supports his assertion or a lawyer (or Mike) addresses the issue.
    Last edited by eye95; 11-06-2010 at 09:26 PM.

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    Impossible to prove a negative

    Quote Originally Posted by eye95 View Post
    Another poster made the positive assertion that if one is not detained or arrested, he is free to go. I challenged him on his assertion. It is his responsibility to cite the law supporting his assertion. Pushing it off on the challenger does not add any credibility to his assertion.

    I am arguing nothing. Moving on until he supports his assertion or a lawyer (or Mike) addresses the issue.
    It appears to me that you are asking for a law that permits you to leave. In the US system of law, if there is no law preventing you from doing something, you are allowed to do it. Officers are allowed to arrest you or to detain you. I do not know of any other authority that they would have to restrict your movement in an ordinary situation.

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    If one is not under arrest, nor being detained, then what else remains?

    Either you are free to leave, OR you are being detained/arrested. By process of elimination it is an either/or situation.

    I simply determine the answer by asking different questions.

    1=1 is the same as 3-2.

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    Quote Originally Posted by ccwinstructor View Post
    It appears to me that you are asking for a law that permits you to leave. In the US system of law, if there is no law preventing you from doing something, you are allowed to do it. Officers are allowed to arrest you or to detain you. I do not know of any other authority that they would have to restrict your movement in an ordinary situation.
    No, the poster asserted that if one is not being arrested and one is not being detained, the he can assume that he is free to leave. I challenged that assertion.

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    Quote Originally Posted by Phssthpok View Post
    If one is not under arrest, nor being detained, then what else remains?

    Either you are free to leave, OR you are being detained/arrested. By process of elimination it is an either/or situation.

    I simply determine the answer by asking different questions.

    1=1 is the same as 3-2.
    I am challenging your assertion that there are only three possibilities: arrested, detained, or free to leave. I will not rely on your word that there is not a third possibility that could result in complicating the heck out of an encounter with a LEO because I eliminated the first two possibilities and incorrectly jumped to the conclusion that only the third possibility, being free to leave, remained.

    So, either back that assertion up with law, black-letter or case, or I will assume (pending a lawyer or Mike verifying your claim) that your claim is Bravo Sierra.

    I will continue to use the question, "Am I free to go?" to establish the lawfulness of my departure until I learn from an authoritative source that the two questions you propose can be substituted without resulting in my lawfully being cuffed (or worse).

    On edit: I would caution others to be as cautious when taking legal advice on the Internet when it isn't backed up.
    Last edited by eye95; 11-06-2010 at 10:50 PM.

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    Quote Originally Posted by eye95 View Post
    SNIP Your post presupposes that if a person is not under arrest and not being detained, then they are free to go.
    Quote Originally Posted by eye95 View Post
    Another poster made the positive assertion that if one is not detained or arrested, he is free to go. I challenged him on his assertion. It is his responsibility to cite the law supporting his assertion. Pushing it off on the challenger does not add any credibility to his assertion.
    Quote Originally Posted by ccwinstructor View Post
    It appears to me that you are asking for a law that permits you to leave. In the US system of law, if there is no law preventing you from doing something, you are allowed to do it.
    I think part of the problem here is the terminology. If we look towards the top of the logic chain, we find the 4th Amendment guarantee against unreasonable search and seizure. Thus, if one is not being searched or seized, then he therefore must be free--his normal condition.

    The word "detain" enters into the picture with Terry v Ohio. Terry is very clear that briefly restricting someone's freedom while conducting an investigation is a seizure for the purposes of the 4th Amendment. Thus, a detention is a type of seizure. If one is not seized, he is unseized/free.

    Terry v Ohio:

    Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant...

    It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

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    Quote Originally Posted by Citizen View Post
    I think part of the problem here is the terminology. If we look towards the top of the logic chain, we find the 4th Amendment guarantee against unreasonable search and seizure. Thus, if one is not being searched or seized, then he therefore must be free--his normal condition.

    The word "detain" enters into the picture with Terry v Ohio. Terry is very clear that briefly restricting someone's freedom while conducting an investigation is a seizure for the purposes of the 4th Amendment. Thus, a detention is a type of seizure. If one is not seized, he is unseized/free.

    Terry v Ohio:

    Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant...

    It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
    Quote Originally Posted by eye95 View Post
    I am challenging your assertion that there are only three possibilities: arrested, detained, or free to leave. I will not rely on your word that there is not a third possibility that could result in complicating the heck out of an encounter with a LEO because I eliminated the first two possibilities and incorrectly jumped to the conclusion that only the third possibility, being free to leave, remained.

    So, either back that assertion up with law, black-letter or case, or I will assume (pending a lawyer or Mike verifying your claim) that your claim is Bravo Sierra.

    I will continue to use the question, "Am I free to go?" to establish the lawfulness of my departure until I learn from an authoritative source that the two questions you propose can be substituted without resulting in my lawfully being cuffed (or worse).

    On edit: I would caution others to be as cautious when taking legal advice on the Internet when it isn't backed up.
    So again what else is left? I won't ask if I am free to go I am going to go or dismiss the LEO if I am not detained I don't need their permission to go about my activities, look at Citizens post and quote from Terry that is enough to support it.

    From my last encounter which was over the phone I am not going to talk to LEO on the phone when they call any more either.

    It's about training LEO not to violate 4th amendment rights.

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    All the quibbling about "detained" versus "arrested" versus "custodial" versus "investigatory" totally miss the point. The Fourth Amendment say doesn't use any of those terms; it says we are to be free from "unreasonable searches and seizures".

    The word to focus on is "seizure". And what is a seizure? Well, SCOTUS defined it quite nicely for us in United States v. Mendenhall (1980):

    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."

    That is the current controlling definition in the United States. If you reasonably believe that you are not free to leave, then you have been "seized". It doesn't matter if they call it an arrest, a detention, an investigation, or just a conversation: if by the words, actions, or intimidating presence of multiple officers, you reasonably believe you are not free to leave, then ****!

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    Those words come from court decisions on the meaning and implementation of the Fourth Amendment. Thank you showing us the opinion from which those important words "free to leave" get their importance.

    I guess, rather than say, "Have I been seized?" (which would cause a LEO to stare and blink), we should use the plain language, "Am I free to leave?" because the court has set up being free to leave as the opposite of a person being seized.

    Again, are being arrested or being detained the only other legal alternatives to being free to leave. In other words, has a court made being arrested or being detained the legal equivalent of being seized just as the made being free to leave the legal opposite?

    Until someone bothers to support the legal equation of arrest or detention as the only ways to seize a person (they may well be, but we are big on supporting our contentions in law at OCDO), I will stick with asking, "Am I free to leave (or go)?" and will others to do the same, any rants to the contrary notwithstanding.

    On OCDO (and on any intellectually honest site) those who make assertions are expected to back them up, and not put the onus on the challenger. Specifically on OCDO, assertions made regarding law require, by rule, a citation.

    Still waiting.

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    Well said.

    Quote Originally Posted by kbcraig View Post
    it doesn't matter if they call it an arrest, a detention, an investigation, or just a conversation: If by the words, actions, or intimidating presence of multiple officers, you reasonably believe you are not free to leave, then ****!
    ****!

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    Quote Originally Posted by eye95 View Post
    Those words come from court decisions on the meaning and implementation of the Fourth Amendment. Thank you showing us the opinion from which those important words "free to leave" get their importance.

    I guess, rather than say, "Have I been seized?" (which would cause a LEO to stare and blink), we should use the plain language, "Am I free to leave?" because the court has set up being free to leave as the opposite of a person being seized.

    Again, are being arrested or being detained the only other legal alternatives to being free to leave. In other words, has a court made being arrested or being detained the legal equivalent of being seized just as the made being free to leave the legal opposite?

    Until someone bothers to support the legal equation of arrest or detention as the only ways to seize a person (they may well be, but we are big on supporting our contentions in law at OCDO), I will stick with asking, "Am I free to leave (or go)?" and will others to do the same, any rants to the contrary notwithstanding.

    On OCDO (and on any intellectually honest site) those who make assertions are expected to back them up, and not put the onus on the challenger. Specifically on OCDO, assertions made regarding law require, by rule, a citation.

    Still waiting.
    No offense, Eye, but you might wait a long time on that one. In essence you are asking someone to prove a negative. Viewed from another angle, you are essentially asking someone to prove that the law allows you to wear a red shirt, when the law criminalizes wearing no clothes.

    In a moment I will take another crack at helping you out with this. First, let me say there is nothing wrong with being very cautious; but let me point out also that your own words show how far you are taking this. In recent posts, its been shown that seizures are the 4A term. And, that a detention and arrest are seizures. It doesn't matter whether there is another category of seizure--its still a seizure. It doesn't matter whether the cop calls it a "detention" or a "Terry Stop" or a "stop". A cop may even deliberately misname it, claiming it is a consensual encounter. For 4th Amendment purposes, it is either a seizure or it isn't.

    I am on your side in one respect, asking the cop if you are free to leave, and leaving only with his permission, will tend to sidestep a number of potential tactical problems. I am not here discussing the legal aspects. I am, for other readers, distinguishing between the legal aspects and the situation itself. If the cop feels you are not free to leave, whether he is legally correct or not, I cannot imagine anything much beneficial coming your way by ignoring him and trying to walk off. From a tactical viewpoint, Eye's approach seems very sound. I've long planned on doing it myself.

    From Union Pacific Rail Co. vs Botsford, as quoted in Terry v Ohio,

    No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

    Thus, one is always free, legally speaking, unless by clear and unquestionable authority of law. If one is not free, in this context, then by definition, one must have been seized.

    To expand the discussion, there are other types of warrantless seizures approved by the courts, but none apply to your everday OCer-cop street encounter. In fact there is a whole category, legally speaking, of exceptions. Any who are interested can google "warrant exceptions". (Make sure you have coffee and a snack, the list has grown kinda long and may require some reading time to take in the examples.) For example, as I understand it, warrant exceptions include:
    • sobriety roadblocks
    • border crossings and ICE roadblocks within (100?) miles of a border
    • community caretaking
    • plain view searches...
    Again, however, none of these will typically apply to an encounter. One might for an given OCer, but these are certainly outside the scope of the discussion here. And, even if one applies, it is still a seizure.

    For what it is worth, here is a case out of Virginia where the court clearly says there are three types of encounters. A fella still has to do a little deducing, but this is the clearest I've ever seen it.

    Fourth Amendment jurisprudence recognizes three categories of police-citizen confrontations: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly intrusive arrests and searches founded on probable cause. Wechsler v Commonwealth (1995)

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    yes we all have the 4th amendment, but state law mite be looked at a little differently in alabama vs. michigan, so we all need to look at how each state handles this type of stop, i do not think that all states will handle an oc stop the same

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    Terry and Mendenhall (the two rulings mentioned in this thread) are federal rulings and apply similarly to all States. Some fringe issues may vary from State to State. In one State the law may require a person being stopped to produce an ID, while another may only require that person to state his name and address. But the essential holdings of Terry, that RAS of a crime is needed for an officer to stop a LAC, and Mendenhall, that not being free to leave constitutes a "seizure," apply everywhere.

    The essential issues in this thread deal with whether the LEO is stopping a LAC lawfully and how the LAC should react to a potentially unlawful stop.

    For the tangential issues, check your State laws on recording and "stop and identify."

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    Quote Originally Posted by eye95 View Post
    I am challenging your assertion that there are only three possibilities: arrested, detained, or free to leave. I will not rely on your word that there is not a third possibility that could result in complicating the heck out of an encounter with a LEO because I eliminated the first two possibilities and incorrectly jumped to the conclusion that only the third possibility, being free to leave, remained.

    So, either back that assertion up with law, black-letter or case, or I will assume (pending a lawyer or Mike verifying your claim) that your claim is Bravo Sierra.

    I will continue to use the question, "Am I free to go?" to establish the lawfulness of my departure until I learn from an authoritative source that the two questions you propose can be substituted without resulting in my lawfully being cuffed (or worse).

    On edit: I would caution others to be as cautious when taking legal advice on the Internet when it isn't backed up.
    If you believe there is a third or other possibility, then present it. Current understanding only discusses those three. YES, if you are not under arrest, or detained, you ARE free to go. If you don't think you are free to go, and it isn't because of arrest or detention, present your other thing....whatever that is.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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