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)