Court: Being polite to cop made consent 'voluntary'

[Doug Huffman]

Well said.

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 stfu!

stfu!

 

[Citizen]

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)

 

[khicks]

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

 

[eye95]

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."

 

[wrightme]

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.

 

[eye95]

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.

Once again, the other poster made the assertion that there were only the three possibilities. He needs to produce a ruling in law that says a person who is not under arrest or is not being detained is free to leave.

He is encouraging folks to walk away from a police officer when they are not under arrest and not being detained. If he is wrong, he is putting them at risk. He has a responsibility to back up his dangerous assertion.

I have no idea what the third (or fourth or fifth or ...) possibility would be, but are you willing to risk your freedom (or someone else's) on his unsupported say so that there aren't any at all??? I'm not.

Therefore, until someone backs up the assertion that to be free to go, you only need to be not under arrest and not detained, I will continue to assume that the safest question to ask to determine if one is free to leave is--drum roll, please--"Am I free to leave?"

Folks, don't rely on unsupported legal assertions here. You put yourself at legal risk.

 

[wrightme]

Once again, the other poster made the assertion that there were only the three possibilities. He needs to produce a ruling in law that says a person who is not under arrest or is not being detained is free to leave.

No. How long have you been reading threads here?

The 4th and 5th amendments apply. Trying to obtusely argue that "the other poster needs to cite" ignores years of court cases and SCOTUS decisions, that have already been presented in these forums ad nauseum.

He is encouraging folks to walk away from a police officer when they are not under arrest and not being detained. If he is wrong, he is putting them at risk. He has a responsibility to back up his dangerous assertion.

That IS exactly what a person should do. Unless there is a law that prevents it, a LAC has that Right to be free. If you do not believe this, go find the law that prevents a person from moving about freely on their own business; free from harassment from LE.

If a person is not under arrest or detained, the encounter is consensual. Consent can be ended by either party.

I have no idea what the third (or fourth or fifth or ...) possibility would be, but are you willing to risk your freedom (or someone else's) on his unsupported say so that there aren't any at all??? I'm not.

Then you are speaking from ignorance, or being intentionally obtuse for the sake of argument.

Therefore, until someone backs up the assertion that to be free to go, you only need to be not under arrest and not detained, I will continue to assume that the safest question to ask to determine if one is free to leave is--drum roll, please--"Am I free to leave?"

Folks, don't rely on unsupported legal assertions here. You put yourself at legal risk.

Eye, you ARE "free to go" unless you are being detained. If LE does not allow you to go, guess what is happening......... you are being detained!



Remember, laws do not 'allow' us to be free, laws prevent actions. If you feel that a person not under arrest and not being detained isn't allowed to leave, present the law that prevents.

 

[eye95]

No. How long have you been reading threads here?

The 4th and 5th amendments apply. Trying to obtusely argue that "the other poster needs to cite" ignores years of court cases and SCOTUS decisions, that have already been presented in these forums ad nauseum.
That IS exactly what a person should do. Unless there is a law that prevents it, a LAC has that Right to be free. If you do not believe this, go find the law that prevents a person from moving about freely on their own business; free from harassment from LE.

If a person is not under arrest or detained, the encounter is consensual. Consent can be ended by either party.

Then you are speaking from ignorance, or being intentionally obtuse for the sake of argument.


Eye, you ARE "free to go" unless you are being detained. If LE does not allow you to go, guess what is happening......... you are being detained!



Remember, laws do not 'allow' us to be free, laws prevent actions. If you feel that a person not under arrest and not being detained isn't allowed to leave, present the law that prevents.

Wow. Now one is free to go only if he is not being detained!! Next time I am under arrest, I'll just start to walk away.

The words "free to leave" come from a court decision. If one is "free to leave" if they are not under arrest or being detained (with no other possibility), then support it with a court decision or stop advising that folks can leave if they are only not under arrest and not being detained. That is irresponsible.

Folks, there is a court decision with the words "free to leave." Do not assume that you are free to leave unless you ask that specific question. Do not assume that two other questions are tantamount to that one question without support in the law (that is not being provided here).

I have amply explained this simple idea to you. If you refuse to accept it, I'll just move on. Feel free to repeat that unsupported advice again. I won't reply to you about it again.

 

[sudden valley gunner]

If you are not under arrest or being detained you are free, that is the whole argument. You don't need to ask permission to be "free" in a free country. But you sort have proven all our points by not citing anything to the contrary.

I won't ask permission to be what I already am.

 

[Fuller Malarkey]

Taking into consideration that the police lie and deceive, and spend countless hours on devising means of undermining our rights, I think it prudent to continue discussing possibilities. I do not believe that it is as simple and cut and dried as "either you are detained, or you are not". This method of evading scrutiny [am I free to leave?] is becoming too well known, and I truly believe that the police are working non-stop at means of getting around it.

I get caught up in the thought that a wrong response on my part could be fatal. I think the possibilities could stand some more thought and discussion. I try not to underestimate the lengths people will go to to maintain power, dominance, and control.

Being right is good. Being right and alive is better. No harm can come from hearing everyone out.

 

[wrightme]

Wow. Now one is free to go only if he is not being detained!! Next time I am under arrest, I'll just start to walk away.

No, that is not what I stated, and you know it.
Detained or Arrested.

The words "free to leave" come from a court decision. If one is "free to leave" if they are not under arrest or being detained (with no other possibility), then support it with a court decision or stop advising that folks can leave if they are only not under arrest and not being detained. That is irresponsible.

No, that is not how it works. Either you are under arrest, or being detained.

If neither of those is happening, you are free to choose your course of action. How can it be any other way? If it wasn't, then any time an LE speaks to a citizen, that citizen is being detained. That is NOT the case, and don't forget, that laws prevent acts, they don't allow them. That which is not prevented under law is allowed. You are "free to leave." You ARE free to move about as you choose, within the law. You seem to be arguing that there is some law that states differently than this. If so, then cite it.

Folks, there is a court decision with the words "free to leave." Do not assume that you are free to leave unless you ask that specific question. Do not assume that two other questions are tantamount to that one question without support in the law (that is not being provided here).

No, it is most correct to state "Folks, this is the United States of America, and we ARE free citizens. Unless you are being detained or are under arrest, you are not prevented from lawful activity."

I have amply explained this simple idea to you. If you refuse to accept it, I'll just move on. Feel free to repeat that unsupported advice again. I won't reply to you about it again.

No, you have not "amply explained" this. You have presented an opinion. You have not cited case law or statute to support your opinion.


Now, back to the OP, here is a quote from that case:

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.

Even absent le stating "the defendant .. was free to leave," it was still consensual. This is the opposite of the view you are presenting. LE doesn't have to tell you that you are "free to leave." You ARE "free to leave" unless you are being detained. (or are under arrest, for the pedantic ones here).

 

[Fuller Malarkey]

Wow. Now one is free to go only if he is not being detained!! Next time I am under arrest, I'll just start to walk away.

The words "free to leave" come from a court decision. If one is "free to leave" if they are not under arrest or being detained (with no other possibility), then support it with a court decision or stop advising that folks can leave if they are only not under arrest and not being detained. That is irresponsible.

Folks, there is a court decision with the words "free to leave." Do not assume that you are free to leave unless you ask that specific question. Do not assume that two other questions are tantamount to that one question without support in the law (that is not being provided here).

I have amply explained this simple idea to you. If you refuse to accept it, I'll just move on. Feel free to repeat that unsupported advice again. I won't reply to you about it again.

Please continue the discussion. There are too many possibilities to have any cut and dried answers. If we choose to use this means of slipping out of police grasp, we had better be totally informed. A wrong move could be fatal.

 

[Fuller Malarkey]

No, that is not what I stated, and you know it.
Detained or Arrested.
No, that is not how it works. Either you are under arrest, or being detained.

If neither of those is happening, you are free to choose your course of action. How can it be any other way? If it wasn't, then any time an LE speaks to a citizen, that citizen is being detained. That is NOT the case, and don't forget, that laws prevent acts, they don't allow them. That which is not prevented under law is allowed. You are "free to leave." You ARE free to move about as you choose, within the law. You seem to be arguing that there is some law that states differently than this. If so, then cite it.

No, it is most correct to state "Folks, this is the United States of America, and we ARE free citizens. Unless you are being detained or are under arrest, you are not prevented from lawful activity."


No, you have not "amply explained" this. You have presented an opinion. You have not cited case law or statute to support your opinion.


Now, back to the OP, here is a quote from that case:
Even absent le stating "the defendant .. was free to leave," it was still consensual. This is the opposite of the view you are presenting. LE doesn't have to tell you that you are "free to leave." You ARE "free to leave" unless you are being detained. (or are under arrest, for the pedantic ones here).

The reality is that there isn't a Constitutional referee out there on the street to flag a foul on the part of police when they don't conform to your understanding of Amendments. Lets continue the conversation so that we all can gain a greater understanding. While there are a few here that annoy me to no end, there are none here I'd like to see shot n the back due to bad advice.

 

[wrightme]

Please continue the discussion. There are too many possibilities to have any cut and dried answers. If we choose to use this means of slipping out of police grasp, we had better be totally informed. A wrong move could be fatal.

What other possibilities do you see? So far, the only possibilities are as follows:

Arrested.

Detained.

Consensual Encounter.


In the first two cases, you are not free to leave.
In the third case, you ARE free to leave. Look in the quote in the Original Post of this topic. It specifically states that LE does not need to articulate "free to leave" for the encounter to be consensual.

It isn't a means of "slipping out of police grasp," it is an assertion of our Rights. LE cannot detain without reason. Unless they are detaining (or have placed you under arrest), you ARE still a freeman, and can move on about your business, absent interruption by LE.

 

[wrightme]

The reality is that there isn't a Constitutional referee out there on the street to flag a foul on the part of police when they don't conform to your understanding of Amendments. Lets continue the conversation so that we all can gain a greater understanding. While there are a few here that annoy me to no end, there are none here I'd like to see shot n the back due to bad advice.

????

There is nothing to indicate that your hyperbolic claim is valid. Why would LE shoot someone in the back?


The referree is the court system. Up to that point, the LE has the upper hand, whether they operate within the law or not. Given the advice presented here, no one will get "shot in the back." They will get either unlawfully detained, or be allowed to move on lawfully.


This discussions seems hung up on semantics. If it were me, and I was being questioned by LE, it is as many have already outlined.

"Am I being detained?"
if a NO, then I depart.
If a YES, I clam up.

If the answer is a "waffle," then I would choose my course of action.

 

[wrightme]

Taking into consideration that the police lie and deceive, and spend countless hours on devising means of undermining our rights, I think it prudent to continue discussing possibilities. I do not believe that it is as simple and cut and dried as "either you are detained, or you are not". This method of evading scrutiny [am I free to leave?] is becoming too well known, and I truly believe that the police are working non-stop at means of getting around it.

I get caught up in the thought that a wrong response on my part could be fatal. I think the possibilities could stand some more thought and discussion. I try not to underestimate the lengths people will go to to maintain power, dominance, and control.

Being right is good. Being right and alive is better. No harm can come from hearing everyone out.

This is a good reason to assert the 5th amendment.

If you simply ask "am I being detained," and they say "NO," and you begin to depart, you will quickly find out if you are really being detained. And it isn't likely to be with a gunshot to the back.

 

[Fuller Malarkey]

????

There is nothing to indicate that your hyperbolic claim is valid. Why would LE shoot someone in the back?
Thats a good question. I can only offer suspicions as to why they have shot the people they have so far. Some conclude the action is called "contempt of cop".

The referree is the court system. Up to that point, the LE has the upper hand, whether they operate within the law or not. Given the advice presented here, no one will get "shot in the back." They will get either unlawfully detained, or be allowed to move on lawfully.


This discussions seems hung up on semantics. If it were me, and I was being questioned by LE, it is as many have already outlined.

"Am I being detained?"
if a NO, then I depart.
If a YES, I clam up.

If the answer is a "waffle," then I would choose my course of action.

Therein lies the problem. Few cops will knowledge as to whether you are free to go or not. I have no control over their reaction if they think the answer was "no". Curb side civics lessons are to common to ignore. This is where continued discussion might help us gain understanding about how to proceed when police refuse to confirm our situation. Again, there isn't a referee out there to throw a flag or blow a whistle when police deviate from the play book. I don't think I need to point out that the police are aware of this.

 

[Fuller Malarkey]

What other possibilities do you see? So far, the only possibilities are as follows:

Arrested.

Detained.

Consensual Encounter.


In the first two cases, you are not free to leave.
In the third case, you ARE free to leave. Look in the quote in the Original Post of this topic. It specifically states that LE does not need to articulate "free to leave" for the encounter to be consensual.

It isn't a means of "slipping out of police grasp," it is an assertion of our Rights. LE cannot detain without reason. Unless they are detaining (or have placed you under arrest), you ARE still a freeman, and can move on about your business, absent interruption by LE.

I am not knowledgeable enough about the topic to be certain about anything. I also am not comfortable with my ignorance on the topic, and would like to replace the ignorance with information. Lots of information. It seems you have grasped an understanding that you believe will work for you. Please understand that I am not obligated to limit my information to what you have concluded. IF there are more possibilities regarding our status when approached by police, I want to know what they are and how to deal with them.

I'm not sure what your reasoning is for discouraging exploration into this possibility.

My understanding is a cop has from the time they encounter you until they get to court to come up with a complete RAS and or PC. My defense, if I live, will be limited to what happens there at the scene. What you claim as asserting your rights might be perceived as resisting arrest, or something that justifies deadly force. Again, there ain't no refs out there to throw a flag if this happens. Best a method get worked out that defuses the situation, and allows you to walk away. Walking away from an angry baffled cop on a mission to maintain dominance of the situation is way too volatile for me.

I may be totally wrong. My senses tell me it is not as cut and dried as you portray.

 

[wrightme]

It IS "cut and dried." The cop may feel differently, and illegally detain you. Keeping in a consensual encounter and answering questions merely feeds the misperceptions of LE that they ARE allowed to keep questioning LACs absent RAS.

Here is the crux of the situation. Given a clear "NO" to "am I being detained, you ARE free to leave. So leave. If the LE then stops you, you ARE being detained. If there is not a "YES" answer, you CAN assume you are free to leave, since le did not tell you that you are being detained. They may not like it, but it IS cut and dried, and there are some LE who feel that questioning LAC without RAS is simply "good police work."

If LE detains you, you are not free to leave. If they don't, the encounter is by definition, consensual. Consensual encounters can be terminated by either party. Terminate the encounter. Otherwise, sooner or later, your mouth will present RAS to the LE.


Now if you try to leave, and the LE prevents you, then stay, and keep the trap shut. And the recorder on if legal to do so.

 

[wrightme]

Which is why you should fully read the Terry and Munoz cases for reference, and KNOW your Rights in such situations. Follow up with the "stop and ID" statute applicable to your state, IF there is one. If there isn't one, you aren't required to even respond with your name. But most importantly, KNOW the law regarding what you MUST tell a cop. Then use that as your "go no further" point if you choose. Beyond that, you take your chances.

Therein lies the problem. Few cops will knowledge as to whether you are free to go or not. I have no control over their reaction if they think the answer was "no". Curb side civics lessons are to common to ignore. This is where continued discussion might help us gain understanding about how to proceed when police refuse to confirm our situation. Again, there isn't a referee out there to throw a flag or blow a whistle when police deviate from the play book. I don't think I need to point out that the police are aware of this.

The 4th post in this thread topic stated it very well:

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.