Using Voice Recorder and Interacting With LEOs

flhrci said:

Your crap or someone else's? LOL

David


Sent from my iPad using Tapatalk HD

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I try to turn it on when I leave and off when I return. The dead silence while driving is aggravating; however I did I can sing along with the radio really good. Not! :lol:

ShootinRugers said:

I try to turn it on when I leave and off when I return. The dead silence while driving is aggravating; however I did I can sing along with the radio really good. Not! :lol:

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Better to find out now before harming someone else! :lol:

David

eye95 said:

My recorder works beautifully in a pocket. I turn it on when I leave the house, and turn it off when I get home. If nothing happened, I erase the recording.

Since "detained" is a fuzzy legal word, I avoid it. If you have been arrested, detained, or otherwise stopped from freely moving about, legally you have been seized. However, if you ask a cop, "Have I been seized?" you will get a blank stare. Ask the opposite question: "Am I free to go?" If you are, go. If not, the only thing Ohio law requires is that you provide name, address, and date of birth--if requested. I also recommend making sure that the recording contains you saying, "I do not consent to any searches or seizures, but will not resist." Asking for the officer's supervisor can also be useful. Keep repeating "Am I free to go?" until you are.

Beyond that, I don't recommend talking to the officer.

On edit: After reading OCfM's post, I do want to add this: The above is for stops, wherein the officer uses his authority to start the interaction. I don't mind friendly unofficial chats with the local cops. I still won't talk to them about what I am doing. Say the wrong thing, and the chat can become official.

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Really? I was not aware of this? I am not questioning it, but do you happen to know off hand where this is covered in ORC?

ShootinRugers said:

Where is the best place to carry the digital? With the cassette I had a battery mic plugged in so it was in a jacket or pants pocket. This mic works with the new recorder.

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One thing to think about is what happens if you are detained and handcuffed. If the recorder is just handheld chances are that you won't be able to continue recording once in cuffs. So consider something like a neck lanyard if the recorder is handheld.

Also, cops love to rumage through your pockets during a Terry frisk - even though they are supposed to only pat down the outide of your clothing for weapons and only remove items that feel like a weapon - they routinely violate Terry vs. Ohio by removing other stuff from your pockets. If you do have a recorder in your pocket with an attached remote microphone, ther is a good chance that the cop will unplug the mic and remove the recorder from your pocket. This is the downside of using a remote mic.

eye95 said:

"... the only thing Ohio law requires is that you provide name, address, and date of birth--if requested...

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"

Humanshield said:

Really? I was not aware of this? I am not questioning it, but do you happen to know off hand where this is covered in ORC?

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Ohio Revised Code 2921.29 Failure to disclose personal information.
(A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:

(1) The person is committing, has committed, or is about to commit a criminal offense.
(2) The person witnessed any of the following:

(a) An offense of violence that would constitute a felony under the laws of this state;
(b) A felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property;
(c) Any attempt or conspiracy to commit, or complicity in committing, any offense identified in division (A)(2)(a) or (b) of this section;
(d) Any conduct reasonably indicating that any offense identified in division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or complicity described in division (A)(2)(c) of this section has been, is being, or is about to be committed.​

(B) Whoever violates this section is guilty of failure to disclose one's personal information, a misdemeanor of the fourth degree.
(C) Nothing in this section requires a person to answer any questions beyond that person's name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person's name, address, or date of birth or for refusing to describe the offense observed.
(D) It is not a violation of this section to refuse to answer a question that would reveal a person's age or date of birth if age is an element of the crime that the person is suspected of committing.

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I draw the reader's attention to the emboldened words and phrasing. An officer has the authority to demand of a criminal suspect or witness to a serious crime his name, address, or (and) date of birth. The phrasing is widely used in legal writing and a result of English having no 'official rules' but being the construct of its users.

Augustin said:

One thing to think about is what happens if you are detained and handcuffed. If the recorder is just handheld chances are that you won't be able to continue recording once in cuffs. So consider something like a neck lanyard if the recorder is handheld.

Also, cops love to rumage through your pockets during a Terry frisk - even though they are supposed to only pat down the outide of your clothing for weapons and only remove items that feel like a weapon - they routinely violate Terry vs. Ohio by removing other stuff from your pockets. If you do have a recorder in your pocket with an attached remote microphone, ther is a good chance that the cop will unplug the mic and remove the recorder from your pocket. This is the downside of using a remote mic.

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It still records with the mic unplugged. If the range was there I'd like to go wireless; leave recorder in car and just carry the transmitter. I've never been Terry-Frisked.

Neck lanyard is something to think about.

Fallschirmjäger said:

I draw the reader's attention to the emboldened words and phrasing. An officer has the authority to demand of a criminal suspect or witness to a serious crime his name, address, or (and) date of birth. The phrasing is widely used in legal writing and a result of English having no 'official rules' but being the construct of its users.

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Thank you. If a cop stops you with RAS, which is the situation we are talking about, he can require you to provide the three pieces of information.

eye95 said:

Thank you. If a cop stops you with RAS, which is the situation we are talking about, he can require you to provide the three pieces of information.

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Thank you, Eye.
It is a crucial point; if Officer Friendly flashes a badge and command you to stop, puts his hands on you to stop you from doing something, but it's ""consensual"" then the officer has no authority to demand those bits of information. Only if you are stopped for cause.

Come to think of it, that little bit of information come in real handy in a civil suit. "Your honor, Officer Friendly must certainly have thought he was detaining me. As a professional, he's no doubt aware that he has the authority do demand my age, address and date of birth if reasonably suspected of criminal activity. As such, a reasonable man would have to believe he was being detained by Officer Friendly."

I put "consensual" in double quotes in light of the Immigration and Customs Enforcement's assertion that their agent showing a badge to a theater goer, commanding the theater goer to accompany the agent, surrounding him with additional law enforcement, handcuffing him, seizing his effects, seizing his papers, threatening that if he didn't "voluntarily answer" their questions that bad things would happen to him..... was all a consensual, Tier-1 encounter, just as if the officers were asking for him to tell them if liked the movie.:cuss:

Fallschirmjäger said:

"

Ohio Revised Code 2921.29 Failure to disclose personal information.
(A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:
(1) The person is committing, has committed, or is about to commit a criminal offense.
(2) The person witnessed any of the following:
(a) An offense of violence that would constitute a felony under the laws of this state;
(b) A felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property;
(c) Any attempt or conspiracy to commit, or complicity in committing, any offense identified in division (A)(2)(a) or (b) of this section;
(d) Any conduct reasonably indicating that any offense identified in division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or complicity described in division (A)(2)(c) of this section has been, is being, or is about to be committed.
(B) Whoever violates this section is guilty of failure to disclose one's personal information, a misdemeanor of the fourth degree.
(C) Nothing in this section requires a person to answer any questions beyond that person's name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person's name, address, or date of birth or for refusing to describe the offense observed.
(D) It is not a violation of this section to refuse to answer a question that would reveal a person's age or date of birth if age is an element of the crime that the person is suspected of committing.

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I draw the reader's attention to the emboldened words and phrasing. An officer has the authority to demand of a criminal suspect or witness to a serious crime his name, address, or (and) date of birth. The phrasing is widely used in legal writing and a result of English having no 'official rules' but being the construct of its users.

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I'm repeating myself again......

When any of us are carrying concealed we understand that we must inform an officer of our conceal carry status and also have identification on our persons and supply that identification if requested.

When open carrying we are not required to have any type of identification on our persons. Knowing that the Ohio legislature passed ORC 2921.29.

Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer has wide leeway during an investigatory stop. But, that wide leeway is not unlimited. A stop under Terry is limited by the Fourth Amendment of the U.S. Constitution and also limited by Article 1 Section 14 of the Ohio Constitution. ORC §2921.29 is unconstitutional as written. ORC §2921.29(A) states in part “No person who is in a public place shall refuse to disclose the person’s name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:...” ORC §2921.29 goes well beyond the holding of Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al, 542 U.S. 177 (2004).

The U.S. Supreme Court in Hiibel stated that:

Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.
The Hiibel court made it abundantly clear that, until Hiibel, an open question existed as to whether a suspect can be arrested and prosecuted for the refusal to answer questions, ie a suspect exercising their Fifth Amendment right. Through Hiibel the U.S. Supreme Court has ruled that the Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. The Court did not extend that principle beyond the giving of the suspect's name.

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ORC §2921.29 states “no person...shall refuse to disclose the person’s name, address, or date of birth.” The term “or” in Websters dictionary is a conjunction introducing an alternative. Thus, in plain English ORC §2921.29 allows a person to give one of the three alternatives. But, what if an arresting officer charges an Accused with not supplying all three because the officer treated the term “or” as if it meant “and.” According to ORC §1.02(F) (“And” may be read “or,” and “or” may be read “and” if the sense requires it.) the officer is permitted to make such interpretation. The officer's interpretation, however, would be in direct violation of ORC §1.42 which states in part “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Accordingly, the application of term “and” in ORC §2921.29(A) would then be in direct violation of Hiibel. Clearly, ORC §2921.29(A), when applied with the term “and” instead of “or”, would be beyond what the U.S. Supreme Court has allowed under the Fourth Amendment and therefore, ORC §2921.29 would be unconstitutional.

If an Accused gave their name, but was arrested and jailed for not giving his address and date of birth, the arrest and jailing would be under the color of law and in violation of the Accused's constitutional right under the U.S. and Ohio Constitution.

State v. Brown, 2004 Ohio 4058 - Ohio: Court of Appeals, 2nd Appellate Dist. 2004

{¶25} “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” Hiibel, 124 S.Ct. at 2460; Cincinnati v. Bawtenheimer (1992), 63 Ohio St.3d 260, 264, 586 N.E.2d 1065 (“The Fifth Amendment protects the person against incrimination through compelled testimony or other compelled acts having some testimonial character.”). In order for a disclosure to be testimonial, the defendant’s communication “must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Hiibel, 124 S.Ct. at 2460. The Supreme Court has recognized that the stating of one’s name may constitute an assertion of fact relating to one’s identity. Id. It noted:
{¶26} “The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a question to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. In every criminal case, it is known and must be known who has been arrested and who is being tried. Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.” Hiibel, 124 S.Ct at 2461 (citations omitted).

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The Ohio courts understand that it's name only.

Police Officer: "How are you, today?"
Open Carrier: "I'm fine. And yourself?"
PO: "Fine. I noticed your firearm. Can I ask why you're carrying it?"
OC: "Sure. For self-defense."
PO: "Why are you carrying it out in the open?"
OC: "Because it's legal."
PO: "Do you have some ID on you?"
OC: "Am I free to go?"

(Repeat until you get an answer. DO NOT let them change the subject.)

IF YES

PO: "Well, yes. You are free to go, but..."
OC: "Have a nice day!"
(then walk away)

IF NO

PO: "No. Do you have some ID?"
OC: "I do not consent to this encounter. If I'm being detained, I would like my attorney present before answering any questions. I have his number on my phone. May I call him please."

At this point, we have seen Youtube videos of police telling folks that they are NOT free to go but that they are NOT being detained. Right. It's one or the other, folks.

PO: "You're not being detained."
OC: "Am I free to go?"

(Return to IF YES/IF NO choices.)


NEVER ask them if you've done something wrong. It does not matter to YOU and it will just remind them to make something up.

Police Officer: "How are you, today?"
Open Carrier: "I'm sorry, officer, but I do not consent to any interaction with you."
PO: "I just wanted to..."
OC: "Am I free to go?" (cut them off mid-sentence)

If they do not immediately say yes or no, start to turn and walk away.

If they touch you, physically block your path or verbally tell you to stop, you have been seized.

Demand your lawyer. Do not answer questions without a lawyer present.

Fallschirmjäger said:

Thank you, Eye.
It is a crucial point; if Officer Friendly flashes a badge and command you to stop, puts his hands on you to stop you from doing something, but it's ""consensual"" then the officer has no authority to demand those bits of information. Only if you are stopped for cause. <snip>

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If a cop puts his hand(s) on you, you are seized, there is nothing consensual when a cop lays his hand(s) on you.

Fallschirmjäger said:

Thank you, Eye.
It is a crucial point; if Officer Friendly flashes a badge and command you to stop, puts his hands on you to stop you from doing something, but it's ""consensual"" then the officer has no authority to demand those bits of information. Only if you are stopped for cause.

Come to think of it, that little bit of information come in real handy in a civil suit. "Your honor, Officer Friendly must certainly have thought he was detaining me. As a professional, he's no doubt aware that he has the authority do demand my age, address and date of birth if reasonably suspected of criminal activity. As such, a reasonable man would have to believe he was being detained by Officer Friendly."

I put "consensual" in double quotes in light of the Immigration and Customs Enforcement's assertion that their agent showing a badge to a theater goer, commanding the theater goer to accompany the agent, surrounding him with additional law enforcement, handcuffing him, seizing his effects, seizing his papers, threatening that if he didn't "voluntarily answer" their questions that bad things would happen to him..... was all a consensual, Tier-1 encounter, just as if the officers were asking for him to tell them if liked the movie.:cuss:

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The officer cannot require the information if the encounter is consensual. He can if you are detained and the detention is lawful.

In the situations you describe (bolded), a court will surely find that you have been detained. Court rulings have said that authoritative use of voice or putting hands on you would make a reasonable person believe that he is not free to go. Boom. Detained. (Actually, "seized.")

If the officer flashes a badge, using an authoritative voice, and commands you to stop, you are detained, but how do you know that the detention is lawful? You can't know. Assume it is, and deal with any misbehavior on his part later.

Don't forget, if he puts his hands on you, say something that the recorder will pick up! "Officer, why did you just grab my arm?"

Oh, and on the giving of your name OR address OR date of birth: This will be settled by a court. I'll bet money that if it ever comes up in court, the "OR" argument will be a loser. Either it won't affect the decision, or it will be specifically rejected by the court. In any case, I don't recommend relying on it and trying to get away with just giving your name.

Let some other poor fool try to test that one in court. Deal with the potential unlawfulness of any detention, not with legal word games. Let's fight the battles that matter! If you have been detained, provide name, address, and DOB.

eye95 said:

Oh, and on the giving of your name OR address OR date of birth: This will be settled by a court. I'll bet money that if it ever comes up in court, the "OR" argument will be a loser. Either it won't affect the decision, or it will be specifically rejected by the court. In any case, I don't recommend relying on it and trying to get away with just giving your name.

Let some other poor fool try to test that one in court. Deal with the potential unlawfulness of any detention, not with legal word games. Let's fight the battles that matter! If you have been detained, provide name, address, and DOB.

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I'm glad you did not bet on it, because you would have lost.

http://www.courtclerk.org/case_summary.asp?sec=history&casenumber=C/08/CRB/10514

A motion to dismiss was filed making the very argument stated above; the statute was unconstitutional if "or" meant "and." The cop charged him for refusing to give his address and date of birth; he only gave his name.
The judge refused to grant his motion. A bench trial ensued over the defendants objection. The state put on their case; name, address and date of birth. The state rested, the defendant moved for acquittal. The judge granted his motion.

The judge denied the motion to dismiss because he was not going to be the judge declaring the defendant's rights were violated.

How do I know all this? I was there.

PLEASE REMEMBER THAT THE FORUM MEMBERS HERE ARE GIVING THEIR OPINIONS.

When someone says "Do this...", you should probably read that as, "I think you should do this..."

While many people here have had real world experiences, what a court will decide in your case will vary from city to city, and from state to state.

MyWifeSaidYes said:

PLEASE REMEMBER THAT THE FORUM MEMBERS HERE ARE GIVING THEIR OPINIONS.

When someone says "Do this...", you should probably read that as, "I think you should do this..."

While many people here have had real world experiences, what a court will decide in your case will vary from city to city, and from state to state.

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Since this is the Ohio forum we know that many cities have laws on their books that are in violation of ORC 9.68. And we know the local police will usually enforce those local laws and we know if you don't object in court the court will usually uphold the illegal local law.

color of law said:

I'm glad you did not bet on it, because you would have lost.

http://www.courtclerk.org/case_summary.asp?sec=history&casenumber=C/08/CRB/10514

A motion to dismiss was filed making the very argument stated above; the statute was unconstitutional if "or" meant "and." The cop charged him for refusing to give his address and date of birth; he only gave his name.
The judge refused to grant his motion. A bench trial ensued over the defendants objection. The state put on their case; name, address and date of birth. The state rested, the defendant moved for acquittal. The judge granted his motion.

The judge denied the motion to dismiss because he was not going to be the judge declaring the defendant's rights were violated.

How do I know all this? I was there.

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Got a link to the actual court document that says what you claim? Your link is not to the ruling.


Sent from my iPad using Tapatalk.

<o>

If JUDGE Mallory is related to anti-gun Cincinnati MAYOR Mallory, then there is no way the judge would do anything "pro-citizen".

eye95 said:

Got a link to the actual court document that says what you claim? Your link is not to the ruling.


Sent from my iPad using Tapatalk.

<o>

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The link was pretty clear - "ACQUITTED BY COURT"