First LEO encounter

N605TW · Jan 11, 2011

I had my first encounter with the Helena Police Department around 4:00 today. I was walking East on E Custer. When I was crossing Montana Ave I seen a police cruiser that was turning West onto E Custer make a fast U turn into the gas station. I knew he seen me so I pressed the record button (.wav file available at www.790th-squadron.net/downloads/docs/stopped_by_police_11111.wav I will upload to youtube tomorrow night and post a link.) The officer got out and had me put my hands in the air. As the officer was talking to me another cruiser pulled up but I didn't hear it nor did I see the officer get out. The second officer startled me when she started talking to me as my full attention was the first officer in front of me. I don't think it was a bad encounter but I didn't do all the things the way I think I should have, like ask why I was being detained. The whole encounter lasted about a minute and forty seconds and the officers were polite.

The positives of the encounter: They did not ask for ID, they did not disarm me and they were polite
The negatives of the encounter: They stopped me in the first place and I did not ask why I was being detained. (to be fair one of the first things the first officer said was about my gun. so it was obvious why they stopped)

Transcription of the stop:

ME: How are you doing sir?
OFFICER1: I need you to put your hands up. All the way up high.
ME: Alright. I am recording this conversation.
OFFICER1: Ok, that’s fine. I just wanted to make sure that you’re not planning on doing anything with that gun and...
ME: I'm just heading to Albertsons to see my mother.
OFFICER1: OK. How old are you?
ME: I am 23.
OFFICER1: OK. And you are just going to see your mother at Albertsons?
ME: I am.
OFFICER1: OK.
OFFICER2: Why do you have that on you?
ME: Oh, hi. I didn't even see you there.
OFFICER2: Why do you have it on you?
ME: I just carry it where ever I go.
OFFICER2: What’s in your hand?
ME: I am recording this conversation.
OFFICER2: Alright.
OFFICER1: So you normally carry it...
ME: I do.
OFFICER1: ...Everywhere?
ME: Everywhere I go.
OFFICER1: Has anyone ever talked to you about it?
ME: No. I have had a couple people come up and ask if its leagl but...
OFFICER1: Ok. So no one...
ME: No one of authority no.
OFFICER1: Whats that?
ME: No one of authority.
OFFICER1: Has ever stopped you or have said anything to you.
ME: No.
OFFICER1: Have they seen it?
ME: I honestly don't know. I don't keep track.
OFFICER1: Ok. What kind of gun is it?
ME: It's a Glock 17.
OFFICER1: Ok. Just make sure if you have a concealed weapons permit...
ME: I do not, that is why it is openly...
OFFICER1: Ok. That is just..
ME: Yeah.
OFFICER1: that you understand that you can't conceal that, you got to keep it...
ME: Yep.
OFFICER1: Alright, have a good day.
ME: Alright, you have a great day.
OFFICER2: What’s your name?
ME: My name is Tom.
OFFICER2: Tom, last name?
ME: I really don't want to give that out.
OFFICER2: Why?
ME: Because I don't have to.
OFFICER2: What’s with the paranoia?
ME: No paranoia, I'm just...I'm not legally required to.
OFFICER2: Oh, thank you.
ME: Alright, you have a great day.
OFFICER2: You too.

Thos.Jefferson · Jan 11, 2011

I'd say you did well especially in the aspect of not giving in to the "paranoia" rhetoric.

KBCraig · Jan 11, 2011

Well played.

riverrat10k · Jan 12, 2011

You did just fine. The officers were at least aware of the laws and did not press too hard. Less than two minutes, I would give the officers a B+. Sounds to me like they backed off when they realized you were not likely a threat to anyone.

Ok, flamers, Flame On!

smn · Jan 12, 2011

You did very well but talked too much.

IMO, perhaps first asking "Am I free to go?" would've been best. According to Terry law the officer must have RAS to stop you for an investigative detention (tier 2). Asking AIFTG would've put the ball in his court to answer yes or no. A response in the negative would result in a polite reply, "I will not answer any questions without the presence of my attorney." An affirmative response to the AIFTG would result in a simple statement, "I wish to end this tier one encounter. Have a nice day. I am continuing on my way as before this interruption."

Re-read Terry v. Ohio and Ohio v. Robinette on why this matters.

N605TW · Jan 12, 2011

I agree smn, I talked way too much. It was my first encounter of a LEO so I don't think I did a horrible job. But if there is a next time the first thing I will do is ask for RAS and if it goes down hill from there I will shut my trap. Thanks for the replies everyone.

Badger Johnson · Jan 12, 2011

I'm sure the irony is not lost on you that two armed LEOs were so PARANOID of a law abiding citizen going about his business in a legal manner asking you why you were paranoid.

One wonders about the ridiculous questioning. What possible information could they have gleaned by asking if anyone had asked you about your gun?

Thanks for posting the transcription.

MK · Jan 12, 2011

N605TW said:
I agree smn, I talked way too much. It was my first encounter of a LEO so I don't think I did a horrible job. But if there is a next time the first thing I will do is ask for RAS and if it goes down hill from there I will shut my trap. Thanks for the replies everyone.

To each his own. You handled your encounter fine. Its not like all of us have gobs of experience being stopped, investigated and sometimes detained by the police. You don't even need to ask about RAS in that situation in my opinion. Maybe if they demanded you to identify yourself under threat of unlawful actions on their part, but it seems that their queries were on the consensual contact level. Even the officer ordering you to put your hands in the air is going to be looked upon as legal seeing that he is approaching you and you are armed. In my opinion, to do so is more of a precaution for your safety than anything else.

Personally, I hate to answer questions about my travel and I get a bit offended if stopped in my vehicle and an officer asks questions such as where I work which happened in two of the past three times I've been pulled over. However, there isn't some template out there to go by for everyone in every situation. They are all unique and its up to you to decide how you want to handle your personal situation. The important thing is that your stop went smoothly, was uneventful and the place where you chose to stand your ground, not fully identifying yourself, wasn't breached. No escalation occured.

In my opinion you did fine.

smn · Jan 12, 2011

The OP was still detained unlawfully.

Another thing to do: file an FOIA-type request to the department's records division and ask for all video recordings, audio recordings, radio recordings, etc. during the time of the detainment. The recordings might tell you what the first officer said to dispatch after he saw you.

Then follow up with these details to the chief with a brief complaint. Another incident like this one could result in a lawsuit. There, the OP has covered his bases in the event this happens again.

Also, go re-read Florida v. JL. There is no firearms exception in the fourth amendment. The mere presence of a firearm does not provide RAS for a tier two stop.

Badger Johnson · Jan 12, 2011

First LEO stop

What if the OP had exercised his rights, say had his lawyer with him, could he have just walked away after stating 'I'm breaking no law, I'm going to walk away, I'm recording this, my lawyer is (points), and I'm filing a complaint with the chief'?

IOW, the LEO had no apparent right to stop him - could he have been 'backed down' if the OP had representation, or some 'clout'? IMO, it was his young age which got his the "Parent vs Child" attitude from the cop with the irrelevant questions, but I don't know.

I've been stopped and frisked for even less in 2005 - I was riding a bike in the park and was detained and questioned by two LEOs - red lights flashing and everything, because (according to them) someone said 'a guy on a bike is riding too fast around corners' (I was going 12mph - sheesh- there was no speed limit posted in the park and no other hikers or joggers - the complaintant observed me from inside her car in the nearby parking lot). I was packing a bike multi tool in my pocket - that's it. It's from this illegal stop in a public park that I researched and learned about Reasonable Articulable Facts and Terry stops. (I did write the chief but got no reply)

KBCraig · Jan 12, 2011

NavyLT said:
The OP consented to everything, never asked if he was free to go, and stayed there voluntarily. Kind of hard to make a case for unlawful detention under those circumstances.

We conclude that 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. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

United States v. Mendenhall

From the OP's transcript, the encounter started like this: OFFICER1: I need you to put your hands up. All the way up high.

I would argue that this constitutes a show of authority, and a use of language (and possibly tone of voice; I'd have to hear the audio), "indicating that compliance with the officer's request might be compelled", and also that "a reasonable person would have believed that he was not free to leave."

IANAL, but if I was, I would certainly argue that point.

Jero1987 · Jan 13, 2011

Good work.
Keep up the open carry.

Carry on.

MKEgal · Jan 13, 2011

NavyLT said:
I think he should have exercised his rights from the beginning and as soon as the officer said, "I need you to put your hands up. All the way up high." the first thing I would have asked is, "Why, are you detaining me?"
... That's not a normal greeting to establish a voluntary contact.

+1
First out of your mouth: "why am I being detained", and don't respond to the 'hands up' until they explain of what crime you're suspected.

Overall, not too bad. My first was much worse.

I second getting the PD records of the encounter & at least complaining to IA.
You were doing nothing illegal.

rickc1962 · Jan 13, 2011

smn said:
The OP was still detained unlawfully.

Another thing to do: file an FOIA-type request to the department's records division and ask for all video recordings, audio recordings, radio recordings, etc. during the time of the detainment. The recordings might tell you what the first officer said to dispatch after he saw you.

Then follow up with these details to the chief with a brief complaint. Another incident like this one could result in a lawsuit. There, the OP has covered his bases in the event this happens again.

Also, go re-read Florida v. JL. There is no firearms exception in the fourth amendment. The mere presence of a firearm does not provide RAS for a tier two stop.

I personally think he did just fine, I know there is a lot of things we don`t have to do, but for the life of me I just don`t understand why their are so many here that chose to be confrontational with LE. instead of being polite. Maybe the next time they see him, they will say, ( at least in their minds ), I know that guy, he`s a good law abiding citizen, instead of I know that guy he`s a jerk. I have a good relationship with LE here, and they know if I came upon a scene, and they needed help I would not only help, but would give my life for them if need be. That being said, if they were knuckleheads then all bets would be off.

Gunslinger · Jan 13, 2011

NavyLT said:
The OP consented to everything, never asked if he was free to go, and stayed there voluntarily. Kind of hard to make a case for unlawful detention under those circumstances.

Agreed, but he's young and it was his cherry popper.

First words out of you mouth should have been "are you detaining me?" If yes, "what is your RAS?" If no, "then I am free to go." And leave. They had no RAS; open carry is not illegal in MT; where you were going, why you were going there and why you were carrying is none of their business, and you had no obligation to answer any questions. They stopped you because you're young, hence asking your age. I don't know the MT law on age for OC, but once established you were over that age, the contact should have been concluded. Good learning experience for you, but "politely" violating your rights is still violating your rights.

Gunslinger · Jan 13, 2011

rickc1962 said:
I personally think he did just fine, I know there is a lot of things we don`t have to do, but for the life of me I just don`t understand why their are so many here that chose to be confrontational with LE. instead of being polite. Maybe the next time they see him, they will say, ( at least in their minds ), I know that guy, he`s a good law abiding citizen, instead of I know that guy he`s a jerk. I have a good relationship with LE here, and they know if I came upon a scene, and they needed help I would not only help, but would give my life for them if need be. That being said, if they were knuckleheads then all bets would be off.

For my friend Eye: the inmates at Buchenwald were very polite to the SS guards. So they didn't get pushed in the gas chambers too roughly. One hand washes the other...and losing a little of our freedoms doesn't hurt that much, at first....

rickc1962 · Jan 13, 2011

I am not saying we need to lay down and say kick me, I`m just saying that LEOs are people too, there are good ones and bad ones. Everyone here likes to be respected, and they do to, I have always pushed the envelope when it comes to me Constitutional rights, and most of the time it payed off, but there has been times it did not. I open carry here where I live, and have never had a bad encounter with LE here, I have been asked for ID a few times, once with MWAG, and once when Chris Angel was here and the Mayor was giving him the keys to the City, ( side note Chris CCs.), both encounters I think went well, we shook hands and I went about my way. Now when these Officers see me, they say hi to me, or from a distant they wave, we have becoame friends, and at the same time ALL THE TOURIST THAT WACHTED OUR INTERACTION seen that LAC carry guns, are not afraid to talk to cops, and they left knowing that if LE wasn't worried they didn`t need to be ether. I try to educate and calm fears as much as posable, as I am writing this I am setting in the park, next to the lake with my firearm on my side and no one cairs. BTW NavyLt, you being in the service, do you not like to get respect from your men, I know when I was in 30 years ago, I gave respect, and expected it back, maybe they don`t teach that anymore.

paul@paul-fisher.com · Jan 13, 2011

MKEgal said:
+1
First out of your mouth: "why am I being detained", and don't respond to the 'hands up' until they explain of what crime you're suspected.

Overall, not too bad. My first was much worse.

I second getting the PD records of the encounter & at least complaining to IA.
You were doing nothing illegal.

I guess it depends on the tone but I am not sure about no complying to the 'hands up'. While it may be an illegal order, not complying might escalate the issue.

Definately the 1st question should of been 'am I be detained', however.

rickc1962 · Jan 13, 2011

NavyLT said:
What the TOURISTS saw was an example that a person carrying a gun is suspicious, which warrants attention by the police to investigate them, and a person carrying a gun that agrees with that.

Your right! I should act bull headed, force my rights down the throats of the cops, piss them off, stay there for an hour, wast time I could be having with my wife, and show the tourist how ignorant we gun owners are. Or make friends, be a good ambassador for the 2nd Amendment, enjoy my day, ect...ect... I don`t know how LE is in Wa. is, but I would rather have a mutual respect with our LE here. Now if LEOs are indeed draconian, then you must act, I prefer to do it thru the state house, city hall, the chief of police, sheriff, and educating LE and the non gun owning public at the same time. I do not fill I give up any rights. The way ambassadors and negotiators get things done is with the psychology that you catch more bees with honey than with vinegar.

rickc1962 · Jan 14, 2011

NavyLT said:
To some of us, the 4th amendment to the Constitution is just as important as the 2nd amendment. Besides, to stand there and consent to a police officer to violate the 4th amendment would be to violate the oath I took to support and defend the Constitution of the United States against ALL enemies, both foreign AND DOMESTIC.

"OFFICER1: I need you to put your hands up. All the way up high."

At that point the officer violated the 4th amendment. When given an order like that by a police officer, any reasonable person would feel compelled to comply and not free to just walk away. The officer "seized" or "detained" the subject with no reasonable and articulable suspicion of the subject committing a crime. That violates the 4th amendment.

I am not disagreeing with you about the 4th Amendment, my point is just this, we are winning in the battle of opinion, IF I weren't a believe in the 2nd Amendment and I was to see an encounter between a gun owner and LE and the gun owner was one that would rather stand up to LE than be compliant, EVEN if LE is wrong, which they are quit often, I would not look at the gun owner in a good light, and we should do EVERTHING to make gun owners look good. We can always fight behind the scene which is where most victories are won anyway. I love to eat at this restaurant here, the owner is very anti gun, but we have become friends, and I am slowly winning her over to our side, now, if she was, lets say at the park and she was to watch you say any of the many things you say you would say, and LE would then detain you, you would win the war, but you would have lost the battle, at least in her mind, and then she would say " I don`t want this kind of stuff in my business so I won`t let gun owners carry here ". How did you win the battle? I choose to pick my fights, and on the streets is not where I choose to fight this one. You might, I don`t, again I do everything I can to make gun owners look good.

First LEO encounter

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