DrTodd
Michigan Moderator
imported post
zigziggityzoo wrote:
[align=JUSTIFY] In Freeman, supra at 493-494, the defendant was sitting in his car in a private parking lot near a darkened house. The motor was running, the parking lights were on and it was late at night. Two officers approached the defendant and “asked” him to exit his car and to produce identification and registration. The Supreme Court ruled that defendant had been seized “when the officers asked him to leave his automobile and to produce identification,” noting specifically that one of the officers testified that defendant was not free to go “until I found out who he was and why he was parked there.” Id. at 494-495 & n 3 (emphasis supplied). Because the circumstances did not provide a sufficient basis for a reasonable suspicion of criminal activity to support an investigatory stop, the stop was unwarranted. Id. at 496-497.[/align] [align=JUSTIFY] We believe that the difficulty in this case relates to the sometimes ambiguous use of the term “asked.” While this term is often used to signify a request for voluntary action, it is many times used to refer to a polite instruction to perform a mandatory action. In Freeman, there was apparently no argument about whether the defendant complied with a voluntary request or was effectively ordered or required by the police to exit his car and produce identification. The prosecution in Freeman argued rather that there was sufficient basis to support the officers’ suspicion in that case that criminal activity might be afoot. Freeman, supra at 495. It was already well established at the time of the Freeman decision that a person could waive the protection against unreasonable searches and seizures by consenting to a search. See, e.g. People v Rosales, 406 Mich 624, 629; 281 NW2d 126 (1979) (further search after a Terry protective search requires consent or probable cause).[/align] [align=JUSTIFY]Against this background, it would have made no sense for the Freeman Court to have concluded that a request for consensual production of an item constituted a “search” or “seizure” requiring objective justification. In context, we believe that the references by the Freeman Court to the officers in that case having “asked” the defendant to produce identification and exit his car reflected mandatory directions, not requests for voluntary action. Thus, Freeman, properly understood, does not require a holding that reasonable suspicion is necessary for a police officer to ask a person to voluntarily produce identification.
[/align][align=JUSTIFY]I hope this helps in understanding why I believe that a LEO simply "asking" for a voluntary action is not dependent on RAS... but I may be wrong:shock:
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zigziggityzoo wrote:
Well, actually I did read People v. Freeman but then I read People v Shankle, (1998) which states: (sorry I couldn't indent the whole section which follows)DrTodd wrote:
2) The MI SCourt has never said that "anytime an officer "requests" or "demands" ID, it amounts to a Terry Stop, which requires RAS as a prerequisite. In other words, BEFORE an officer can ask for Identification, he must already have Reasonable, Articulable Suspicion that a crime either Has been committed, Is about to be committed, or IS BEING committed."
A police officer can ask anything he/she wants, what they GET depends on the situation. If I am not being "detained" (RAS present), then I can go merrily on my way... I have an "urgent appointment", btw. If, however, I am being "detained", then RAS needs to be present... they DO NOT need to tell me what RAS is, though.
In order to follow the rules regarding the need to cite my source, I'll just limit it to Terry v Ohio (Justice White's concurring opinion in Terry v. Ohio, 392(1), (1968)).... here:
"There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." (392 U.S. 1, at 34).
Citizen addressed #1, sorry I wasn't more clear.
Regarding #2, Have you read that case? It's not a MI Supreme court case, it's an appeals court case, which still holds as precedent in Michigan.
It took into account for Terry, the SCOTUS decision, and fundamentally changed it for Michigan. The way I read that case, anytime an officer requests ID, the stop turns into a Terry Stop. The officer must have had RAS prior to asking for ID, or else by the doctrine of "Fruit of the poisonous tree," every bit of information acquired after that request is inadmissible in a courtroom.
[align=JUSTIFY] In Freeman, supra at 493-494, the defendant was sitting in his car in a private parking lot near a darkened house. The motor was running, the parking lights were on and it was late at night. Two officers approached the defendant and “asked” him to exit his car and to produce identification and registration. The Supreme Court ruled that defendant had been seized “when the officers asked him to leave his automobile and to produce identification,” noting specifically that one of the officers testified that defendant was not free to go “until I found out who he was and why he was parked there.” Id. at 494-495 & n 3 (emphasis supplied). Because the circumstances did not provide a sufficient basis for a reasonable suspicion of criminal activity to support an investigatory stop, the stop was unwarranted. Id. at 496-497.[/align] [align=JUSTIFY] We believe that the difficulty in this case relates to the sometimes ambiguous use of the term “asked.” While this term is often used to signify a request for voluntary action, it is many times used to refer to a polite instruction to perform a mandatory action. In Freeman, there was apparently no argument about whether the defendant complied with a voluntary request or was effectively ordered or required by the police to exit his car and produce identification. The prosecution in Freeman argued rather that there was sufficient basis to support the officers’ suspicion in that case that criminal activity might be afoot. Freeman, supra at 495. It was already well established at the time of the Freeman decision that a person could waive the protection against unreasonable searches and seizures by consenting to a search. See, e.g. People v Rosales, 406 Mich 624, 629; 281 NW2d 126 (1979) (further search after a Terry protective search requires consent or probable cause).[/align] [align=JUSTIFY]Against this background, it would have made no sense for the Freeman Court to have concluded that a request for consensual production of an item constituted a “search” or “seizure” requiring objective justification. In context, we believe that the references by the Freeman Court to the officers in that case having “asked” the defendant to produce identification and exit his car reflected mandatory directions, not requests for voluntary action. Thus, Freeman, properly understood, does not require a holding that reasonable suspicion is necessary for a police officer to ask a person to voluntarily produce identification.
[/align][align=JUSTIFY]I hope this helps in understanding why I believe that a LEO simply "asking" for a voluntary action is not dependent on RAS... but I may be wrong:shock:
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