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Can You Correctly Determine Whether the Cop has RAS?

Citizen

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This is intended as a reference thread. Please limit comments and questions to things very directly on point. If you want to copy and repost this first post in your state sub-forum because of law specific to your state, feel free. Please just link back to this original post/thread so others can come find this one if they are from another state but find it first in your state forum.

I am posting this because the subject came up again recently. And, as you are about to read, it is kinda lengthy if one wants to be comprehensive. Thus, whenever this subject comes up, I have to type and type and type. So, I decided to just do a thorough write-up once. And, from here on out, whenever the subject comes up again, I can just link back to here.



Can You Correctly Guess Whether the Cop has RAS?

I am not a lawyer. You will want to verify the information that follows by research or consulting an attorney. If you use the information, you are assuming full responsibility.

RAS means reasonable articulable suspicion, sometimes called just reasonable suspicion. It is a legal term having to do with the threshold for when a cop is legally allowed to involuntarily detain someone while the cop investigates that person. See Terry v Ohio[SUP]1[/SUP]for the beginnings of RAS and the threshold of suspicion the cop needs to meet. Basically, a police officer must have reasonable articulable suspicion that a crime was, is, or is about to be committed before he can temporarily detain that person involuntarily fo rfurther investigation, using reasonable force if necessary to control that person’s movement. The suspicion must be reasonable. It must be based on articulable facts, no hunches allowed. And, the cop can use his experience as a cop to inform his decision to detain someone; meaning, things that might not be suspicious to you and I might be suspicious to him since he deals with criminal behavior regularly.

From time to time you will read some version of, “If the cop doesn’t have RAS, he can’t detain you, and you can ignore him and walk off.” While true from a theoretical standpoint, there are a few problems for the OCer who would just walk away from a police detention after deciding the cops do not have the required RAS. If an OCer walks away from a cop who means to detain him, the consequences can be rough. He may be proned-out and handcuffed. Obstruction may be charged.

The trouble starts with who gets to decide legally whether the cop has RAS. The last paragraph of Terry v Ohio makes it clear that it is the courts who decide whether the cop had RAS. Meaning, it is decided after the detention is over. By the courts. Not the detainee during the detention.

There is another angle to RAS. The Terry court recognized that the circumstances observed by the cop that led him to detain someone will be different from the circusmstances giving rise to another detention. In the last paragraph of Terry, the court said each situation will have to be judged on its own set of circumstances as to whether genuine RAS existed. Since Terry was written, appellate courts have been churning out decisions as to whether this set of circumstances or that set of circumstances observed by a cop amounted to genuine RAS. There are numerous decisions at both the state and federal level.

And, those court decisions are only the ones that were appealed. Each trial judge gets to make his own determination if the question is raised during a pre-trial hearing. And, unless overturned on appeal, the trial judge’s decision about whether the cop had genuine RAS is the one that will count for the OCer who ends up in court.

Another problem for the OCer is that the cop is not required to inform the detainee ofhis RAS. I’ve never seen a court decision that requires the cop to inform the detainee of the circumstances that led the cop to be suspicious.[SUP]2[/SUP] A related problem is that cops are allowed to lie. Look up permissible deception. And, I know of no reason why a cop couldn’t tell an OCer only part of the RAS, not all of it, for example to see if the detainee will say something that is contradicted by something the cop already observed.

Thus, if an OCer wants to just up and walk away from a detention because he thinks the cop does not have RAS, the OCer has to correctly:

  • Remember whether his circumstances have been ruled as RAS or not RAS by an appeals court in his jurisdiction.
  • Guess how his trial judge will rule on the circumstances that made the cop suspicious of the OCer.
  • Guess whether the cop honestly told him all the circumstances behind the cop’s RAS.
  • Guess whether there is something in the cop’s experience with criminals that allows him to be suspicious of the OCer.

Sounds like a pretty tall order to me.

However, some might argue, “Well, what if the circumstances are all known to the OCer and are fairly straightforward?” For example, the OCer is walking his dog in a park where OC is legal, and cop on patrol notices the OCer and decides to pester the OCer a bit? The OCer can see all the same things the cop could see—guy walking his dog in a park where OC is legal during daylight. No big deal, right? But, what if there was a 911 call and radio dispatch about a man with a gun and a dog in a park? A 911 call that was just a little bit hysterical or ambiguous? Or, maybe contained some embellishment or exaggeration? Or, maybe the dispatcher misreports by honest mistake to the cop. (Its what the cop observes or is told by dispatch, not what the OCer thinks).

I’m not saying the situation can never occur where the OCer knows all the RAS during the detention, and can correctly figure out whether the circumstances are genuine RAS. I am saying the probability is rather low. Certainly, a lot less likely than might be thought by the guy who tells you, “If the cop doesn’t have RAS he can’t detain you and you can just walk away.”

And, with all that said, there may be law that prevents the OCer walking away, even if he guessed correctly. For example, in VA we have a court decision, Commonwealth vs Christian, that says in so many words that the right to resist a false arrest does not extend to an unlawful temporary investigative detention. So, in VA, even if the OCer gets it right and starts to walk away, if the cop grabs him, and the OCer fights back to free himself from an unlawful detention, he still gets charged and probably convicted for assaulting a police officer. Even though the detention was illegal (not based on genuine RAS)! Other states may have similar.

So, keep the foregoing in mind when somebody writes, “If the cop doesn’t have RAS, you can…”

Citizen 8/7/12



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

2. Recently a West VA appeals court decision was quoted on the forum that said a person could not be charged with obstruction for refusing to identify himself during a detention unless the cop informed him why the cop was demanding identity as part of his official duties. This implies that maybe in WV a cop does have to tell a person the RAS if the cop wants to be able to charge obstruction. If you are from WV and want to know more, see post #89 at this thread: http://ww.opencarry.org/forums/showthread.php?104664-Produce-ID-for-the-police/page4&
 
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Vitaeus

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Good generalized summation, tough subject to discuss outside of a specific state forum though.

I don't normally make the comment but IANAL, since this is a general forum, that said...

Easiest thing to do is determine your status before you walk away, ask "Am I being detained?" If the answer is "No", then leave, no comments or parting quips, just move away,preferably to private property to end the encounter.
If the answer is "Yes", then "I decline to answer any further questions", this is where you may get a "terry search", depending on your state you may want to make a further utterance to clearly retain your rights (depending on state)
If arrest follows "I wish to speak to an attorney" and remain silent thereafter (depending on your state you may be required to provide identity and/or ID at this point your laws may/will vary.

There are multiple threads on "Don't talk to the police".

Now back to RAS, the part I have found and it may be specific to WA, is that the LEO has to have facts, not hunches, guesses or reasonable assumptions that add up to a suspicion, if he doesn't have enough and each state varies on this, he may be constrained by the state's laws in how much investigation he may do.
 
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OC for ME

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I could be wrong, but it seems that MWAG calls are trending towards not being enough to detain a citizen. Stopping to 'consensually contact' the citizen seems to be the trend by some LEAs here in Missouri when a MWAG call is made. Hoping to have the citizen implicate themselve to permit a formal detention. On the surface this seems to be a good thing, or it could be nothing more than my imagination.

Once again, record record record.
 

davidmcbeth

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Good generalized summation, tough subject to discuss outside of a specific state forum though.

I don't normally make the comment but IANAL, since this is a general forum, that said...

Easiest thing to do is determine your status before you walk away, ask "Am I being detained?" If the answer is "No", then leave, no comments or parting quips, just move away,preferably to private property to end the encounter.

How about just leaving w/o asking any questions? Then if he stops you, then you are being detained. No need to ask a question the cop will say "He did not ask me that" in court.
 

Vitaeus

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How about just leaving w/o asking any questions? Then if he stops you, then you are being detained. No need to ask a question the cop will say "He did not ask me that" in court.

Your mileage may vary, plus if you have recorder and he does that you just helped undermine his credibility, if you end up in court or cited, since the DA will likely not appreciate the issue.


I am certainly not pro-LEO, but that is getting perilously close to "cop-bashing",

(6) NO PERSONAL ATTACKS: While you may disagree strongly with another poster based upon their opinion, we will NOT tolerate any personal attacks or general bashing of groups of people based upon race, religion, national origin, sex, sexual orientation, gender-identity or choice of occupation (e.g., being a law enforcement officer, in the military, etc)
 

Phoenix David

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...Snip..


I am certainly not pro-LEO, but that is getting perilously close to "cop-bashing",

...snip..

I find that an odd statement "not pro-LEO" Why not? Or (not to put words in your mouth) Not pro-LEO that violates your (or others) civil rights? Or Not pro-LEO that do not know the laws? Or do you just hate/dislike LEO? Do you hate/dislike the LEO that just pulled the kid out of a burning car? Do you hate/dislike the one that rescued a drowning person?

I am very pro-LEO, I like LEO (and Taurus too), until they violate my (or others) civil rights and then you take action.
 

OC for ME

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<snip> Do you hate/dislike the LEO that just pulled the kid out of a burning car? Do you hate/dislike the one that rescued a drowning person?

I am very pro-LEO, I like LEO (and Taurus too), until they violate my (or others) civil rights and then you take action.
Too funny.

Cop saves a bus load of kindergartners today.....tomorrow he has got his jack-boot on your neck contrary to the law.

So, is he a good cop or a bad cop?
 

OC for ME

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Not hate, condemn, his good deed yesterday does not give him a out for the foul deed he does today. Yesterday was yesterday, today is another day.
 

Phoenix David

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No a good does not outweigh a bad, but it seems rather prevalent in many threads that you might as well just go forward with the notion that sooner or later a LEO will violate your rights as they are all bad and evil.

But then this is the internet..
 

OC for ME

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True, except for a truly good cop. I know several, they are good because it is not about the 'gun' but about the behavior. Bad cops, even the bad cops that do good things, equate gun to bad behavior. There are far too many cops like this. It is tough for them but they choose the job. I find it saddening that I know more about weapons laws and the laws cops use to gig ya than most cops in my state. Does that make them bad, no not yet, just ill trained, undereducated, or complicit in the infringements condoned by their bosses.
 

Citizen

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Hey, guys. This is a reference thread dedicated to one precise point about RAS. Lets please keep it directly on point. I plan on being able link back to this thread for the next five years.

If you have some aspect I failed to consider regarding correctly guessing whether the cop has RAS, please feel free to mention it.
 
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OC for ME

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Considering it would be a complete guess on my part, and I expect little if any useful information from a LEO, it will remain a guess. He don't have to tell us, as you correctly point out, most do cuz they are good guys or are trying to impress with knowledge, but they don't have to. They only have to tell a judge.....or the DA/PA/CA to see if the DA/PA/CA will press forward or drop the charges so he can then tell a judge and possible a jury.

So, I'll keep the chitchat to a bare legal minimum and let the cop do all the talking and my lawyer do my talking.

Now, for a arrest, in Missouri they must inform the citizen what the arrest is for and what authority they to arrest. For a official detainment, not clearly mentioned in RSMo. If they cuff you (restrain, even if in your mind) you are arrested in Missouri, the ride is not required.
Arrest. 544.180. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.
 

georg jetson

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I guess I am kind of confused. What difference does it make at the scene if the police officer has RAS or not and whether or not I believe they have RAS or not? IMHO, the only thing that matters at the scene is if I am being detained or not. Officer approaches me and says, "Can I speak to you for a minute?" or some such question. I ask, "Are you detaining me, officer?" If the answer is yes, then they are detaining me. What difference does it make at the scene if they have RAS? If the are detaining me, I am not free to leave, regardless of if I think their stop is legal or not. It seems to me it is of utmost importance at the scene to establish beyond any reasonable doubt that a detainment is occurring. At the scene, I could not care less if the officer has RAS or not.

It is much more important to establish if you are being detained or not, because that is the first thing you will have to prove in court. Were you detained? If the answer that the court finds is "No, the encounter was voluntary" then you have the first strike against you in court. If the answer that the court finds is, "Yes, the police did detain you" then the police/prosecutor have the first strike against them and now the burden of proof falls upon them to prove the detainment had legal grounds.

Practicality... That's the issue.

I remember when I read a ruling at the appellate level about a farmer in Lafayette La. who resisted arrest of a Wildlife And Fisheries Agent. The specific case is unimportant, but what is important is that it was the court that decided the arrest was unlawful, thus overturning a conviction... at the appellate level. I can imagine this was quite suspenseful for the defendant and his family. SLOWLYYYY suspenseful and expensive.

Knowledge of things is very important, but practical application is perhaps more important. It's good to understand the why, how, what etc. of RAS and many other facets of the law, but that knowledge needs to be kept in context.

Of the many threads here at OCDO, I consider this one of the most practical to the LAC. The OP presents some very lucid ideas we should reconsider often. Intellectual training for the field you might say. However...

I quote NavyLCDR because his post is a concise summary of practical application of knowledge of the law within the context of the circumstances. Correctly guessing whether the cop has RAS is NOT a practical application in the context of a LAC/LEO contact. That is an application of judicial process if things escalate beyond the contact.

If I may suggest a sister thread... "Can we minimize LEO contact and can we collect evidence of unreasonable stops without increasing risk?".
 
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Citizen

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SNIP What difference does it make at the scene if the police officer has RAS or not and whether or not I believe they have RAS or not?

You got it.

The whole point of the OP is to be already typed out and ready to go when a forum member posts to a new guy, "If the cop doesn't have RAS, he can't detain you..."

Those types of posts come in several forms. Some tell the new guy he can walk away. Some leave it hanging as to what the OCer can do, leaving the OCer open to wrongly conclude perhaps that he can ignore the cop and walk away. They all end up leaving a new guy with a false impression. I got tired of having to explain why its next to impossible to figure out whether the cop really does have RAS, and what the consequences might be of acting on a decision that the cop doesn't have RAS. So, I made the OP so I can just link back to that post the next time someone says something along those lines.
 
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OC for ME

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You got it.

The whole point of the OP is to be already typed out and ready to go when a forum member posts to a new guy, "If the cop doesn't have RAS, he can't detain you..."
Who says a cop can't detain you? And what does the legality of the detainment have to do with anything at the time of the detainment? RAS is a after the fact determination. I guess my point is this thread should be "RAS.....worry about it in court."
 

Citizen

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Who says a cop can't detain you? And what does the legality of the detainment have to do with anything at the time of the detainment? RAS is a after the fact determination. I guess my point is this thread should be "RAS.....worry about it in court."

That would have been a good title, I agree. My mission was not to provide advice so much as to undermine misleading info and let the reader decide for himself how to proceed.

GeorgJetson hit on a good point when he distinguished between info and practical application. Another way of making the same distinction is to say there is a difference between knowledge and tactics. As he pointed out, the law does not immediately translate into tactics. One has to think his way through the ramifications of the law and legal system before inventing tactics. I was more focused on the single point, and heaving in every angle I could think of.
 
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davidmcbeth

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RAS is a after the fact determination. I guess my point is this thread should be "RAS.....worry about it in court."

I would say that RAS is created before or during contact but before detainment. So RAS can be determined prior to the detainment as the facts supporting it or not supporting it are present before detainment.

I have been stopped without RAS and the cop wanting to talk to me and in which I refused to engage. The cop wanted to detain me and I told him that he is not wanting to detail me but the kidnap me, I instructed him not to limit or prohibit my movement any further. He let me be ... if he would not have, then a citizen's arrest would have been appropriate (and the cop clearly agreed and he let me go).

So, yes, a person can sometimes make a determination if RAS is present. If the assessment is correct is a question to be determined by the facts surrounding the event.
 

georg jetson

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I would say that RAS is created before or during contact but before detainment. So RAS can be determined prior to the detainment as the facts supporting it or not supporting it are present before detainment.

Well this depends on point of view... Of course the LEO determines RAS prior to the stop(if he's honest). The issue is whether the LAC will be able to perceive if the RAS is valid.

I have been stopped without RAS and the cop wanting to talk to me and in which I refused to engage. The cop wanted to detain me and I told him that he is not wanting to detail me but the kidnap me, I instructed him not to limit or prohibit my movement any further. He let me be ... if he would not have, then a citizen's arrest would have been appropriate (and the cop clearly agreed and he let me go).

Everyone needs to make up their own mind concerning the tactics of a LAC/LEO contact. Though in many(all?) states, citizen's arrest is permitted if a felony is witnessed, one needs to consider the practicality of trying to apprehend an LEO who has qualified immunity by an LAC who does not.

So, yes, a person can sometimes make a determination if RAS is present. If the assessment is correct is a question to be determined by the facts surrounding the event.

It is not good enough to be able to do it sometimes. However, if you apply the tactics described by NavyLCDR, such as asking "are you detaining me?" or "am I free to go?" then you establish whether RAS is even necessary. It is not necessary for consensual contact. If the officer says you're not free to go then you know he's determined he has RAS and you've made your attorney's job easier if things develop past the contact. Telling the officer he has no RAS when he thinks he does is an argument in which you have a clear disadvantage.
 
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