Good Grief! Don’t even bring Iraq into this. Thats ridiculous. I’m a black man and i’ve been stopped by the police before. sometimes I understood why they did it and I probably would have done it too if I were the cop. Sometimes i knew it was just because I was black.
but you asked about reasonable doubt. OK. I have reasonable doubt that leads me to believe that you have a beef with the cops. Why? Because you’re question has been answered and you don’t seem to like the answer. Also because people only throw the whole Iraq/WMD thing in conversations like this because they don’t have anything else to support their argument with most of the time.
FWIW, I don’t this is quite right. It appears that what copperwindow has a problem with is rules. He (?) wants to be able to do what he wants to do without interference. It just happens that cops enforce the rules. I suspect he has/had the same issues with parents, school administrators and employer-supervisors. At a further guess, bluffing tends/tended to work there, so he doesn’t understand why it won’t work with cops.
And, yeah, as I said earlier in the thread, the “driving while black” thing really sucks. By contrast, I have NEVER been stopped for being in a neighborhood, good or bad, at an odd hour.
Would that really be enough to establish that one is being detained against one’s will? Sounds like someone just asked a question. Wouldn’t the person have to, you know, state an objection to not being able to leave? As in,
Person: “I got my ticket. Can I go now?”
Cop: “Why don’t you just hang on two seconds… this won’t take a moment.”
P: “Am I under arrest? I have things to do. I want to go. I take it that you’re not allowing me to leave.”
Detained=not free to leave. If I ask to leave and am told no, that’s a detention.
Right. If the officer is creative in the response, you may need to ask a follow-up question, as you suggest.
Personally, I’d probably say something like this:
Cop: “Why don’t you just hang on two seconds… this won’t take a moment.”
Gfactor: “Thanks, but if you’re done with the ticket, I believe our business is complete. I’ll be going, unless you are detaining me.”
If you wanted to be more aggressive you could simply say, “I’m not clear on this. Am I free to go or not?” Yale Kamisar tells a story about an encounter where he said something similar to a police officer and became convinced the officer was on the verge of striking him.
I endorse Gfactor’s posts. I wouldn’t recommend walking away; I’d use my words: “Officer, am I free to go now?” Remain polite, and require a direct answer, either yes or no, but always remain polite and respectful. If you don’t get a yes or no answer, say, “I don’t understand, officer. Can I go?” Repeat until you get the answer you need.
One of the things that fascinates me about the law is that sometimes there are “magical incantations”: things like Miranda warnings, that, if given and followed immunize the police from a lot of what otherwise is pretty egregious conduct. In this instance, while there’s no magical formula, there’s also no reason to avoid asking the question that requires a direct and clear answer.
Wow, PBear42, that’s quite intuitive of you! You never even met me and you almost hit the nail on the head!
As a matter of fact I’ve escaped from several different psychiatric institutions in the past decade with an advanced case of “Oppositional Defiance Disorder”, or ODD.
At one time or another I did. Luckily, today I’m rich and don’t need to work for other people, but I don’t want to get off subject.
This is precisely what I plan on doing this Saturay night. Remeber, becausue of my ODD (it’s in the DSM4) I have no control over this and I am not doing this intentionally. Now, tomorrow night I plan to drink my non-alcoholic beer out a regular beer bottle and stumble around town (coincidentall I also have Multiple Sclerosis) and I’m assuming that I will run into police. When they confiscate my drink because of there probable cause, will they pour it out or send it to a lab to determine if there was alcohol in it or not. Also, if they do pour it out on the spot, can I sue them for theft? I’d like to know exactly what might happen and know what my rights are. Thanks.
This thread brings up a question: Is it illegal to be a red herring for the police? Kind of like pulling the fire alarm without cause, can you be fined/arrested for pretending to break the law? If not, this tactic could be very useful in providing cover for the real criminals. For example: Me and my friend are leaving a bar downtown completely drunk, and there are police around. I want to drive home without getting a DUI so I get my friend to stumble over to someone else’s car like he’s trying to drive home. While they’re wasting their time on him, I get in my car and drive home. Can my friend be arrested?
You can be arrested for chewing gum, getting a conviction is another case. Hypothetically speaking, the person pretending to be drunk could get arrested for obstruction of justice, but it would be a weak case. In my thread, there is no law being broken by anyone.
Hey, Geiselcat, the “designated decoy” is the basis of many jokes I’ve seen. With one exception, to my knowledge there is no law against such a thing. That exception is that it’s illegal (a violation of FAA regulations, IIRC) to state falsely, even in jest, that you have a bomb or other weapon in your possession or luggage. So, copperwindow’s oh-so-clever ploy probably would not be illegal. FWIW, making a false report of a crime or fire is illegal, but that’s not really a designated decoy ploy.
Created by Flex Your Rights and narrated by retired ACLU director Ira Glasser, BUSTED realistically depicts the pressure and confusion of common police encounters. In an entertaining and revealing manner, BUSTED illustrates the right and wrong ways to handle different police encounters and pays special attention to demonstrating how you, the viewer, can courteously and confidently refuse police searches. Video.
Here’s my answer: yes, it’s illegal. The problem with a conviction would be one pf proof.
In Virginia, to choose an example I’m familiar with, Va Code § 18.2-460 provides in relevant part:
There’s not much question that if you pretend to be drunk, for example, because you wish to get police officers to foucs their attention on you, and thereby not catch a real drunk person driving away, you have obstructed a law enforcement officer in the performance of his duties. If you were charged with this crime, and testified that you pretended to be drunk with the intent of stopping officers from going after real drunks, there would be a sufficient factual record to find you guilty.
On reflection, I think Campion and Bricker are right. OTOH, even on their reasoning, copperwindow’s oh-so-clever ploy should still be okay, since there’s no actual crime, nor any lying involved.
Still not gonna do you any good though, dude, when you try using this line when you’re holding a real beer.
Well, let’s see… let’s say this happens in Virginia.
Based on your stumbling around and drinking out of a paper bag, an officer would have probable cause to detain you for violation of § 18.2-388, which forbids public intoxication. During your detention, you tell him that the beer is non-alcoholic, and that your stumbling is the result of your MS. He doesn’t believe you, pours your beer out, and arrests you.
At trial, he testifies that you were stumbling and had a beer bottle full of what appeared to be beer.
You testify in your own defense, and say that you have ODD, which compels you to place non-alcoholic beer in a bottle, conceal the bottle in a bag, and walk about in public drinking it. You further testify that your MS causes you to stumble when walking.
You further offer the testimony of a doctor who confirms your MS, and offers his opinion that the MS would cause you to stumble.
Absent a cite, I’m going to assume you cannot find a credible expert witness that your ODD causes you to engage in this sort of conduct.
The fact-finder can convict you on this record. Of course, if your testimony is believeable, the fact-finder may also acquit you.
You could sue the city and the cop for the loss of your beer. If you were convicted at your trial, you have essentially zero chance of prevailing at your civil suit. If, by chance, you were not convicted, the cop would assert limited immunity, and you’d be left suing the city. Now you have to convince a jury by preponderance of the evidence that the city acted negligently, and that you suffered the loss of your beer as a result. The city’s defense would be that even if your story is true, they didn’t act negligently – a reasonable person would have assumed beer-smelling liquid in a beer bottle was beer.
The fact-finder at that trial would have to believe you over the city, by preponderance of the evidence, in order to win.
So he will pour it out rather than send it to a lab to test it?
Trial? Trial?!?!?!??!!? What trial? I’d imagine that while in custody, they would test my BAC and when it comes back at zero, this would never go to trial!
I don’t think that I’m going to mention my ODD. Ne need to. I only mention this to you, the teeming millions, to show that this is not some absurd situation that would never happen, everything I mentioned is completely true (actually I’ve only escaped from the custody of one mental institution in the past decade, several since 1991). What I say to the police is that my friend bought a non-alcoholic beer from a store and offered me half. The only container that we could find was an empty bottle of beer. We poured half into it, and he went his way and went mine. I at no time broke any law. And if need be, I could certainly get my neurologist testify to my MS. What would happen at this point?
I don’t think that you will get convicted of anything, based on your plan. You might get a ride to the station, but once the situation becomes more clear to the police, they will likely do what they can to avoid getting blamed.
I think you’d have a much better chance of suing the city for ongoing emotional distress caused by a now continous fear of being thought to be drunk by the police because of your MS. You could testify that every time you walk in public, you start panicking, thinking back to the horrible, embarrassing event when you were arrested without just cause, merely because you walk funny. It might work.
If you sue the city, you have to convince a jury by preponderance of the evidence that the city acted negligently, and that you suffered the loss of your beer as a result. The city’s defense would be that even if your story is true, they didn’t act negligently – a reasonable person would have assumed beer-smelling liquid in a beer bottle was beer.
The fact-finder at that trial would have to believe you over the city, by preponderance of the evidence, in order to win.
There’s also probably a law-enforcement privilege in your jurisdiction. That means you’d have to show a fourth amendment violation. The cop will argue that he had probable cause to arrest you, and to seize your drink incident to a lawful arrest. Once he’s there, the cases cited above kick into high gear. In such cases, the municipality would probably not be liable either. Even if you could prove the officer violated your fourth amendment rights, he’d still have a qualified immunity defense.
Even if you could somehow manage to make out a *prima facie * case and defeat some significant affirmative defenses, you’d still have a serious practical problem. You will have severely pissed off the judge and jury by filing a case over such a petty matter. If I were a juror in your case, it would be tough indeed for me to avoid voting for a no cause of action verdict based only on your lack of concern for the time and well-being of others. Don’t get me wrong–I’d no cause you anyway, but for the reasons outlined above. Others might not be as scrupulous.
Well does this mean that my MS would be “probable cause” in any situaion? If I’m stumbling around and drinking a bottle of water, can I got suspect that it’s vodka and search me? If I’m stumbling around and drinking a coke, can a cop suspect it’s whiskey? If anyone has MS and does not use a wheelchair, does the law automatically assume that they’re drunk?
You’re mischaracterizing Bricker’s position. Wasn’t claimed that the officer could automatically assume you were drunk. Was claimed that the officer would have probable cause to determine whether you were drinking, i.e., sniff the bottle. If it smells like water, coke or whatever, that probably would be the end of it. Except that the officer might arrange a medical intervention to deal with the MS (which you presumably will at some point have mentioned).
