Can A LEO take my weapon for "officer safety"

paramedic said:

Not too long ago I posted a thread on here about this very subject. A Prince William County LEO told me he was going to take my weapon due to officer safety. It would take a lot to tell the whole story, you can look it up on here, I am not sure how to do that. The short version is he wanted to ask me some questions, but wanted to take my weapon first, I refused. After about 10 minutes of back and forth, he finally realized he was not going to get my firearm unless he arrested me.

The reason I had the knowledge and the will to resist him and not hand over my gun was because of what I have learned from reading various post in this forum, I have found that most of our regular posters are very knowledgeable, and give great advice.

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Is this it http://forum.opencarry.org/forums/s...ttempt-to-disarm-by-LEO&p=1611173#post1611173

paramedic said:

Without going into too much detail, I recently had the occasion of local LE being called to my residence(let preface by saying they should have not been called in the first place and they told the person as much). My wife and I had just returned from errands, so both were still OCing. We learned from my adult son that LE was on the way. Upon their arrival I answered the door, when I opened the door I had to shoo the dog away (a very large German Shepard). I invited the officer to come in, he then looked at my side and asked if I would step out to his car to speak with him. I had no reason not to so I did. When we reached the cruiser he asked me to put my hands on the hood of his car, I looked at him with some disbelief and asked him why(the situation he was called for did not even involve me). He said, sir I do not no you and you are clearly aggitated, for my safety I am going to disarm you. I asked what made him think I was upset, he said I was yelling when I answered the door, I told him I was telling the dog to move out of his way, and that I was not upset. I then said that he did not have any probable cause to confiscate my weapon. He continued to say that he thought I was upset, I said I am starting to get upset being treated like a criminal. He tried repeating the "officer safety" speech. I told him without placing me under arrest, he had no cause to take my weapon. After several minutes of both of us repeating the same statements over and over, he finally asked if I would just mind answering some questtions, I told him I would have done that in the first place, I offered to sit on the hood of his car, and even said I would keep my strong side to him and visible. So after about 5 minutes of useless banter, he asked me about the situation, and I told him that I had no Idea since I had just arrived home about 1 minuted before he arrived. He was a little frustrated about that and just turned and walked away from me back to the house.


Before all of you ask, I did not have a voice recorder.

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Herr Heckler Koch said:

Please, would Citizen and User address Reasonable Articulable Suspicion discussions between the arresting officer and his suspect. Is the officer in any way responsible to satisfy the suspect's curiosity, or is RAS/PC material to the officer, the states attorney and the judge?

So often I hear hypotheticals here, "What's your RAS? Without PC you have no cause to interfere with me." If nothing else the right to silence has flown the coop.

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I can't really cough up cites for all the cases that address RAS, the number must approach 30-50. Courts have written reams on this-or-that set of circumstances amounting to sufficient reasonable suspicion to involuntarily detain someone.

I can say that in all my reading, I've never seen one single court opinion requiring a cop to reveal all or part of his suspicion to the detainee, or even the circumstances that gave rise to that suspicion, meaning what he saw that made him suspicious. I'm not a lawyer, but I've read more than my sheeple share of 4th Amendment (search and seizure) court cases. I'm betting that if there were such a case, I'd have come across it or a citation to it in another case.

Thank you. Maybe your statement is an adequate stake through the heart of that meme. We'll see.

peter nap said:

One of these days I'm going to get Dan Hawes down here for one of his seminars. Take what he says as the last word you need.

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I had an agreement with Dan, from back in December, to get him here in Winchester in mid-March, but he got busy, as has been stated. He has given me a rain check, but that is all.

That is to say: I gots first dibs (I hope).

Hypothetical:

If you are being questioned by a LEO (as usual, you are not sure if it is consensual or not, because they are trained to make it unclear to you), and the LEO asks you to hand over your gun.

If you say something to this effect: "Officer, I do not wish to hand you my gun, I do not consent to your taking it, but if you insist on taking it, I will not resist your efforts to do so in any way."

Would it be accurate to add on to the end of your sentence to the LEO, "If you do take my gun against my wishes, you certainly realize that will be an assault on my person, and I will pursue all legal remedies at my disposal as a result of that assault."

All very politely of course.

Thoughts?

TFred

TFred said:

Hypothetical:

If you are being questioned by a LEO (as usual, you are not sure if it is consensual or not, because they are trained to make it unclear to you), and the LEO asks you to hand over your gun.

All very politely of course. Thoughts? TFred

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If there is any reasonable suspicion of detention, then you are being detained. I believe merely using his big-boy command voice, like he was trained to do at the criminal academy, is sufficient. Force majeure is a certainty - two or more. Tactical positioning. Loud hailers. Guns drawn.

nemo said:

I had an agreement with Dan, from back in December, to get him here in Winchester in mid-March, but he got busy, as has been stated. He has given me a rain check, but that is all.

That is to say: I gots first dibs (I hope).

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No problem Nemo. Hopefully I'll get on his dance card.

TFred said:

Hypothetical:

If you are being questioned by a LEO (4. as usual, you are not sure if it is consensual or not, because they are trained to make it unclear to you), and the LEO 1. asks you to hand over your gun.

2. If you say something to this effect: "Officer, I do not wish to hand you my gun, I do not consent to your taking it, but if you insist on taking it, I will not resist your efforts to do so in any way."

3. Would it be accurate to add on to the end of your sentence to the LEO, "If you do take my gun against my wishes, you certainly realize that will be an assault on my person, and I will pursue all legal remedies at my disposal as a result of that assault."

All very politely of course.

Thoughts?

TFred

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1. "Asks", as in a request that seems genuinely decline-able without penalty or repercussion? Or, demands? A demand would take it out of the realm of consensual.

2. Too much verbiage, I think. Maybe shorten it up. Maybe something like, "I will not resist if you take it, officer. But, I do not consent." He'll get the idea.

3. I would argue to never, ever threaten a cop during an encounter. Lets say he's already screwed up, and he knows it, but you don't. And, lets say he's got a pride thing going, or relishes submission (power trip). He can't admit he's wrong for emotional reasons. Then you level a threat. Now, he's backed into a corner. Congratulations, you just gave him an incentive to invent a charge, lie about evidence, and push through to wrongful conviction. Its already hard enough for most cops to admit they are wrong and back off. Get a bad cop, and you may have just made things even worse for yourself, because now he has to push through.

If you want to deter misbehavior, beyond just demonstrating you know what you are doing by exercising your rights properly and politely, then I would say subtlety is the route to take. Drop hints. Boston T. Party (psuedonym), in his book, You and the Police, suggests as an a example that when a cop asks what you do, you can reply, "My profession is not relevant to the matter at hand, sir." Sounds like a lawyer. Or, (my idea), "Officer, I would not want to answer any questions without my own lawyer." Note that little word own. Now the cop is thinking, "Is this guy a lawyer?" "Is he connected to the ACLU? He knows his rights, is calm, not a smart ass, and has a lawyer."

However, all this goes away if you follow my suggestion:

4. Remove the uncertainty. You don't have to wait for the cop to reveal whether its a detention or not. You could just say this, "Officer, no offense. I know you're just doing your job, but I do not consent to an encounter with you." You just removed all possibility of it being a consensual encounter. You just erased any advantage he had in keeping you uncertain. Now, if the cop wants to continue the encounter, legally he must have genuine reasonable articulable suspicion, RAS[SUP]1[/SUP] (Terry v Ohio[SUP]2[/SUP]). I've never seen a court case that requires him to tell you what his RAS is, but he must have it. The point here is that the first words out of my mouth are, "...(polite verbiage)...I do not consent to an encounter with you." And, this removes all uncertainty.

After declaring the refused consent, you could just directly tack on the question, "Am I free to leave?" For example, "Officer, no offense. I know you are just doing your job. But, I do not consent to an encounter with you. Am I free to leave?" I personally favor a slightly different tactic. For myself, I would stop at the refusal and see what he does. With the refusal, I bounced the ball back into his court, and now legally he must play it back to me.

He can play the ball back by doing something to make it an obvious detention, for example, by demanding something from me like an identity document, or exhibiting some other combination of circumstances that add up to a detention. (US vs Mendenhall for a list of circumstances).

Or, he can play the ball back to me by saying, "Have a nice day, sir" basically ending the encounter.

Or, he can play the ball back to me by trying to sneakily to get me to change my refusal. For example, "If you have nothing to hide, why don't you want to talk to me." Which is too easy to counter: "Why am I being detained, officer?" Meaning, I just continue to proceed from my refusal without changing my refusal. Just a moment ago I refused consent. It can't possibly be a consensual encounter, therefore it is inescapable that if he continues the encounter, then I must be in a detention. Notice that I don't argue about whether I am being detained or whether I refused consent or might change my refusal. I proceed from the refusal leaving the refusal intact. I've already made the refusal. He heard it. I obtain no advantage from playing his game and shifting into a discussion designed to get me to change a refusal I've already made and he is legally bound to respect. In short, after I refuse consent to the encounter, if he asks even one more question, I just assume I am detained, and play it as such. Maximum advantage for me, because now he must have genuine RAS. And, if he doesn't, then he's exposed for a formal complaint or lawsuit.



1. Or, another warrant clause exception http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

2. Terry v Ohio http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html

Citizen, a couple of questions.

I read your links.

So in the case of a stop, you suggest asserting the refusal to consent and then just continue the refusal?

I've seen where people walk away. Would it be better to stay and just refuse consent or attempt to walk away?

"I'm sorry, Officer Friendly, but I don't have voluntary conversations with people who are clearly both armed and agitated as you obviously are, unless I am also armed.

Is this a voluntary conversation, or are am I being seized?"

(Personally, I prefer to use the word 'seized' as opposed to either 'stopped', 'detained', or 'arrested' as that is the wording used in the Fourth Amendment,... and it's a pretty particularized word.

Sheriff said:

IMHO, a cop is much safer if a loaded weapon is not handled and handed back and forth.

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Agree 100%...My argument is: This pistol is 100% safe to everyone where it is in it's holster. It is impossible for it to be dropped, or the trigger pulled as long as it stays in it's holster. As soon as it is removed from it's holster, it is a danger to everyone, you me, and any person within range. Let's just leave it there...

BTW: in over 40 years,I have never been asked for my carry by any LEO.

Stanley said:

Citizen, a couple of questions.

I read your links.

So in the case of a stop, you suggest asserting the refusal to consent and then just continue the refusal?

I've seen where people walk away. Would it be better to stay and just refuse consent or attempt to walk away?

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First, please understand that the word stop has a particular meaning. Stop is short for Terry Stop from the court case Terry vs Ohio. A stop is a seizure. It is involuntary. This is why I use the word encounter. An encounter can be either voluntary (consensual) or involuntary (seizure), the word encounter covers both types until it becomes necessary to distinguish which type we're talking about.

So, lets assume you meant an encounter, rather than a stop.

Personally, I don't favor trying to walk away. Here is my rationale: Cops are very good at keeping it uncertain as to whether you are seized. I think it arises maybe partly from something to do with them not answering questions on their part. Maybe to keep the suspect off balance. But, I don't doubt also because the cop gains little by declaring a detention, and increases his liabilities. As soon as he makes it a detention, he must have genuine RAS. Whereas, if he can keep the suspect talking without declaring a seizure, and if he can keep the involuntariness foggy, he avoids to a greater degree having his evidence suppressed in court. Plus, he knows he needs the suspect's cooperation in order to get information that can be used against the suspect. If he gets too tough, the suspect will clam up and wait for a lawyer. If the cop has not developed probable cause before the clam up, his chances of making an arrest plummet. So, you've got a cop in whose best interest it is to keep the nature of the encounter--consensual or involuntary--foggy and uncertain in the mind of the detainee.

But, what happens when the cop figures he's got reason to detain the suspect involuntarily? The suspect isn't sure he's being detained and the cop is sure he can detain, but doesn't tell the suspect. What's gonna happen when the suspect starts to walk away? Uh-ho. At the least, the suspect is gonna get grabbed hard and stood back in place, or forced to sit down on a curb. And, what if it is a cop with a god complex? I don't wanta get proned out and handcuffed all because the cop was deliberately making it foggy as to whether I was seized. And, what if it is a cop who relishes submission? Meaning he's looking forward to using some force on me. By starting to walk away, I just gave him justification enough for his own mind to prone me out, cuff me, maybe start shouting "stop resisting", etc. Who knows, maybe he's feeling a little deprived on opportunities to use his tazer. I don't wanta find out.

Thus, I ain't leaving until I have his permission or he leaves or something makes it clear to me he's not going to assault me.

Regarding refusing consent to an encounter, think of it as a game of chess. The cop makes the first move by presenting his person and speaking to me. I only have a few options this early in the game. I prefer the move that yields maximum legal advantage at least cost while avoiding the most liabilities.

Also, keep this in context. For example, if I'm walking down the sidewalk and a cop calls out to me from inside his parked patrol car in a non-authoritative tone from the curb and asks if we can talk in an obviously consensual tone, I might completely ignore him and keep walking without even stopping. On the other hand, if two cops block the sidewalk in front of me, a third takes up position behind me, and one in front demands, "I wanta see sum ID!", then I know I'm seized, and the refused consent to an encounter just becomes a formality--an important one--but it doesn't really establish the involuntariness because that was already determined. For myself, I've concluded that the first move for me is to take advantage of a point of law* and politely, expressly refuse consent to an encounter.



*I got this idea about refusing consent to an encounter from reading a court opinion. Christian v Commonwealth, I think. In the text of the opinion, the court quoted an earlier case. That earlier case said (paraphrase) Fourth Amendment jurisprudence in Virginia recognizes three types of police-citizen encounters. Consensual encounters, brief minimally intrusive investigatory detentions based on articulable facts, and highly intrusive custodial arrests. Hey! Cool! Lots of folks know we can refuse consent to searches. Lots of folks know we can refuse to answer questions. But, what about refusing consent to the encounter itself? I mean, think about it. You can refuse to answer questions, but the cop can stand there asking questions whether you refuse to answer or not, meaning the questions and refusal are a part of the encounter, but the encounter itself is the fact of being in each other's presence--its the physical presence and proximity that makes the encounter. Not whether I stand mute. And, the court just told me they already recognize whether an encounter is consensual. So, it stands to reason, without any stretch, that I can declare my unwillingness to have an encounter with a cop.

You see, most of the cases you will read on this exact point deal with courts figuring out whether to suppress information or evidence discovered during a police encounter. In these cases, the court is weighing the totality of the circumstances to figure out wether the suspect was being detained and whether the cops had legal justification for that detention. Stuff like, four cops, hands on guns, harsh tones, giving commands. OK, the court says a detention occurred. Then the court looks at whether the confidential informant or walking down the street at night was enough to give genuine RAS. Then the court makes a determination about whether the lower court properly suppressed or allowed the evidence obtained during the encounter. But, wait a minute!! The only reason the court was examining whether the encounter was consensual was because the suspect never said one way or the other whether he consented to hang around with the police.

Also, in that context of figuring out whether a detention occurred, the courts use a "reasonable person" standard. Based on all the circumstances would a reasonable person feel free to disregard a cop and walk away. (US v Mendenall quotes it) The courts are using the "reasonable person" standard in the context of setting an objective standard to fill the void in the absense of a clear refused consent from the citizen. And, that is in the context of the cops providing all the circumstances--numbers of cops, show of authority, tone of voice of the cop, etc. Well, now. How about the citizen providing a circumstance? And, setting aside the need for a "reasonable person" standard to fill a void? As in, the citizen says, "I do not consent to an encounter." Pretty clear it isn't a consensual encounter from that point on, isn't it?

In the first FlexYourRights video, Busted How to Survive a Police Encounter, there is the example of the black teen on the park bench who says, "Officer, I got nothing to say to you." This is a refusal to answer questions. It implies a refusal to encounter, but leaves the door open to cops hanging around. And, if they are hanging around, they're going to ask more questions, typically conversational gambits about why you don't wanta talk unless you have something to hide.

But, the courts handed us that beautiful gem of a quote where the encounter itself, not just any conversation or searches, can be consensual. The court that wrote that said not only that it is willing to recognize whether an encounter is consensual, but that the law already recognizes it. Heh, heh, heh. OK. I'll take it.

"Officer, no offense. I know you're just doing your job. But, I do not consent to an encounter with you."

So let's say the officer first asks me to turn over my firearm during an investigative stop and I say No.

Next the officer tells me to turn it over and I still say No.

If the officer now tries to take it from me, without my consent, can I have him arrested for assault or sue him?

Mayhem said:

So let's say the officer first asks me to turn over my firearm during an investigative stop and I say No.

Next the officer tells me to turn it over and I still say No.

If the officer now tries to take it from me, without my consent, can I have him arrested for assault or sue him?

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Terry v Ohio makes it clear a cop can temporarily seize a firearm during a detention for officer safety and safety of those nearby. So, insofar as you framed the question as a "stop" which is an involuntary seizure aka Terry Stop aka detention, no, you can't have him arrested for assault or successfully sue for that.

Please re-read the posts above. One of them, I forget which, points out that it is never a good idea to reach for your firearm during a police encounter. Too easy for another cop nearby to not hear the first cop's instruction, see you reach for the gun to comply and hand it over, assume you are about to shoot his buddy, and shoot you dead from behind. It has happened. A traffic stop that Phil Van Cleave told about at a VCDL meeting. The citizen offered the gun from the glove box, cop at the driver door said he wanted it, partner cop on the other side of the car didn't hear the conversation because of traffic, saw the driver reaching into the glove box for the gun, assumed the driver was about to start shooting the driver side cop, so shot and killed the driver.

If the cop wants the gun, probably best to let him get it himself. You might consider saying something like, "I won't resist you seizing the gun officer, but I do not consent."

The whole point of refusing consent is to protect your legal standing. There is a point of 4th Amendment (search and seizure) law whereby if you give your consent to a search or seizure, it automatically makes that search or seizure reasonable. The 4A only protects against unreasonable searches and seizures. Consent to a search or seizure and you just made it reasonable as far as the courts are concerned. See on YouTube the video Busted: A Citizen's Guide to Surviving A Police Encounter by FlexYourRights.

Just because you refuse consent does not mean the cop cannot do it. It just means you are not giving him your permission. He might have permission from the law anyway.

I wasn't aware of the meaning of stop. I guess encounter covers it perfectly.

Hmmm, so based on the Mendenhall case, as soon as I refuse consent to the encounter any additional actions or speech by the officer makes it a detention possibly. Then, if I end up in court, they have to produce RAS for the detention.

But if I merely refuse to answer I am leaving them the ability to maintain a consensual encounter and continue to talk to me.

You are joking about this being chess. It probably doesn't help that even the sight of a cop when I OC makes me start sweating like someone wanted for murder.

I'm gonna start practicing saying. "I'm sorry officer but I do not consent to this encounter." I've had one police officer talk to me once the first time I OC'd. I almost threw up. Lol. Sad, I know.

Stanley said:

I wasn't aware of the meaning of stop. I guess encounter covers it perfectly.

Hmmm, so based on the Mendenhall case, as soon as I refuse consent to the encounter any additional actions or speech by the officer makes it a detention possibly. Then, if I end up in court, they have to produce RAS for the detention.

But if I merely refuse to answer I am leaving them the ability to maintain a consensual encounter and continue to talk to me.

You are joking about this being chess. It probably doesn't help that even the sight of a cop when I OC makes me start sweating like someone wanted for murder.

I'm gonna start practicing saying. "I'm sorry officer but I do not consent to this encounter." I've had one police officer talk to me once the first time I OC'd. I almost threw up. Lol. Sad, I know.

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Not quite. Mendenhall is about a drug runner named Sylvia Mendenhall. Federal fuzz, narcs, encountered her on a ramp in an airport terminal. She fit certain profile characteristics of a drug runner if I recall. The narcs encountered her and invited her to a separate room for more discussion. I think she even consented to a body search by a female agent. Anyway, drugs were found. She was convicted. She appealed. If I recall the whole legal question in the appeal was whether she was seized on the ramp or consented voluntarily to go to the separate room. The narcs didn't tell her she was seized/detained. And, she did not expressly refuse consent to accompany them to the separate room. This is all from memory, so best to read the case. Its actually kinda interesting story. The main relevance of her case here is that the court opinion gives a list of circumstances that can be used to determine whether a seizure (detention) occurred. Here is the relevant quote:


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.


http://www.law.cornell.edu/supct/html/historics/USSC_CR_0446_0544_ZO.html


So, what makes it a consensual encounter is whether the citizen consents. I got the idea for refusing consent to an encounter itself from the way a state court opinion was worded. Not because the state court expressly said one could refuse consent to an encounter, but because of the way it worded something else. What makes it possible is simply the fundamental mechanism of consent aka free will. Government cannot override your free will without lawful authority. So, you can consent or not consent according to your own free will and decision. Only with lawful authority can government override your consent. In the case of a detention, the government agents (cops) need genuine reasonable articulable suspicion before the courts will recognize the cops had lawful authority to override your refused consent.

Thanks for the replies and references. This is turning into a thread that needs to go into the FAQ list of bookmarks.

Another question, fully realizing that you are giving us your opinion, not legal advice...

One of my pet peeves in this whole encounter thing is that it always seems incumbent upon the citizen to leave if they don't want to talk to the LEO. I do not like this, why should the citizen be forced to leave?

If I'm sitting in a perfectly nice place that I am entitled to be, and I don't want to give up my view, what do you think of substituting "Are we done here?" for "Am I free to leave?"

If the answer were to be yes, then just resume reading, looking at the scenery, or chatting with your friend, etc, ignoring the officer from that point forward.

Thoughts? Anything in your large list of cites for that?

TFred

TFred said:

Thanks for the replies and references. This is turning into a thread that needs to go into the FAQ list of bookmarks.

Another question, fully realizing that you are giving us your opinion, not legal advice...

One of my pet peeves in this whole encounter thing is that it always seems incumbent upon the citizen to leave if they don't want to talk to the LEO. I do not like this, why should the citizen be forced to leave?

If I'm sitting in a perfectly nice place that I am entitled to be, and I don't want to give up my view, what do you think of substituting "Are we done here?" for "Am I free to leave?"

If the answer were to be yes, then just resume reading, looking at the scenery, or chatting with your friend, etc, ignoring the officer from that point forward.

Thoughts? Anything in your large list of cites for that?

TFred

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No, nothing in my list of cases is directly and expressly on point to your question.

It seems that way (the citizen has to leave rather than the cop) because of the way the case law has evolved. Rant coming. First the courts established exceptions to the warrant clause. All warrantless searches and seizures are presumptively unconstitutional...(great!!!)...unless there is a recognized exception to the warrant requirement (#$@*!!). Things like exigent circumstances, border searches, community caretaking. And, of course, temporary investigative detentions--Terry Stops, or stop-and-frisks based on reasonable articulable suspicion. And, relevant to this discussion rye shere (that means right here for all y'all non-Southerners) is the consent angle. Consent automatically makes a search or seizure reasonable. You can read all about this on wiki. Yeah, yeah, I know wiki ain't always reliable, but!, their legal articles cite the cases so a fella can look them up hisself if wanted.

Of course, once the courts opened those doors (consent and RAS), now, you get into every little nook and cranny and permutation of the infinite variety of ways cops, prosecutors, and defense attorneys can wrangle and argue and twist loopholes. But, the process typically follows a certain pattern--cop tries something not expressly approved by a court decision (aka trying creative ways to get around 4A restrictions), defense attorney tries to get the evidence suppressed, trial judge refuses to suppress, crook convicted and appeals, appeals process plays out, new wrinkle discovered and articulated by whichever is the last appellate court before the last loser gives up. So, there is a certain pattern to the process. And, the appeals courts only decide the question(s) presented.

So, I'm pretty sure nobody's ever presented the question, "Who has to leave, the cop with no RAS, or the citizen he's pestering?" Near as I can tell, the questions all arise from the fact that the citizen never expressly refused consent to an encounter. He pretty much just went along with requests or demands, so there arises a controversy as to whether he felt under some compulsion which would effectively mean he was seized or the search was non-consensual. So, the court opinions focus on ways to tell whether a detention occurred from the rest of the evidence in the record of the suppression hearing. Thus, the list in Mendenhall. And, the seeming misalignment between what one decision says constitutes a seizure and what another decision says constitutes a seizure. (Read the definitions in Terry and Mendenhall; you will see they are not identical.)

Also, although it seems the citizen has to leave, that is not clearly stated in the case law that I have read. Neither does it say the cop has to be the one to leave.

However, with all that said, I would argue the cop needs to leave. First and foremost, case law is clear on one particular point:

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

So, if a cop is standing at your shoulder while you are reading or eating or whatever, and he's obviously there unwanted and investigatorily, nobody but nobody can rationally claim he is not interfering with your peaceful enjoyment of whatever you're doing.

Also, he's got a job to do. He's supposed to be crime fighting and lurking and ambushing little old ladies crossing against the light. He can little profit from hanging around with someone who has invoked 4A and 5A rights to him. Even if he had RAS when he walked up, there is no way he's going to develop probable cause from someone who doesn't answer his questions and doesn't consent to any searches. If he wants to move off 50 or 100 feet and observe from a distance, that's a little different, but I would still argue that more than about 10 seconds of that is deliberate harassment or interference designed to make someone feel intimidated because its already been established that he has no reasonable suspicion (if he did have RAS he could have forced a detention). So, what we would really have from a post-encounter distance observation is a suspicionless surveillance. Citizens might can do that to one another, but its a whole different animal when government does it.

i've been following and reading this discourse intently, and it's fascinating.
i feel that i've learned much! thanks for that.

TFred said:

SNIP If I'm sitting in a perfectly nice place that I am entitled to be, and I don't want to give up my view, what do you think of substituting "Are we done here?" for "Am I free to leave?"

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Hmmmm. Might work. Of course, only if the cop knows he doesn't have RAS. But lets say he knows he doesn't have RAS.

During an encounter that was not a detention, I told the cops they were done. Short story is they were trying to pry identity info out of me when I was the good guy reporting a minor offense by somebody else. Boy, they just had to have my identity info. One even got pretty bent out of shape and wanted to lecture me for my refusal. It was about that point that I told them they were done. Meaning, I knew they weren't going to do anything more with the call. They knew they weren't going to do anything more with the call. And, by me saying so, they knew I knew they weren't going to do anything more with the call. I had reported a minor offense. They were not going to mount a full-scale air and ground operation to hunt down the perps. So, they weren't going to do anything more with it, and I knew it. So, I told them they were done here. In about those words, although I don't recall exactly.

I guess it would depend on exactly how you said it. If you come off as ordering them away, you might stir up some hostility and maybe provoke an illegal detention. Or, worse.

I guess you could also try, "I would like to be left alone now." Or, "Please leave so I can enjoy my meal."