Legal question about detainment by law enforcement

[Crafter_Man]

There is an inconsistency in the law I have never understood.

If I am fishing, a law enforcement officer (LEO) is allowed to approach me and demand I produce a fishing license. They have the authority to do this even when there’s no evidence I have broken a law.

Here in Ohio, if an LEO notices I have a gun under my shirt, they are allowed to detain me and demand I produce a concealed handgun license. They have the authority to do this even when there’s no evidence I have broken a law.

But…

If I am driving a car, an LEO is not allowed to pull me over just to see if I have a driver license; the LEO must first observe me breaking a law before pulling me over.

So how does this work? I understand the law varies from state to state, but is this inconsistency spelled out in the law?

[UltraVires]

See Delaware v. Prouse. https://supreme.justia.com/cases/federal/us/440/648/

@The Relevant Part

Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See Adams v. Williams, 407 U. S. 143, 407 U. S. 148 (1972).

In short, it is a matter of degree. Allowing cars to be pulled over at all times would subject people to too much intrusion while the examples you give would be limited. Justice Rehnquist agrees with your point in dissent.

[Exapno_Mapcase]

Does the fishing law require that a license be on display at all times? If not, what circumstances would exist to give the LEO probable cause to ask about a license? Can you have a self-defeating law in which no legal way exists for the government to test compliance?

[Joey_P]

@Exapno_Mapcase

Does the fishing law require that a license be on display at all times? If not, what circumstances would exist to give the LEO probable cause to ask about a license? Can you have a self-defeating law in which no legal way exists for the government to test compliance?

It appears that in at least some states it is required to be on display. Also, some quick poking around says that any LEOs (police/game wardens/DNR etc) can all request to see your license (in at least some states, don’t know about all of them).

As for the CCL issue, a CCL (again, at least in some states) isn’t a right, it’s a privilege. And, checking my state (Wisconsin) laws. If you carry a CCL you must show it, and a photo ID, to any LEO that asks to see it.

I don’t know about the driving issue, but at least for a fishing and CC license, it appears as though just the fact that you’re doing it gives them PC to ask for a license. I don’t want to go so far as to say you’re guilty until you prove your innocence, but perhaps the law is written this way specifically due to the amount of people that are guilty.

[bob_2]

Cops over here are not supposed to stop cars without reasonable suspicion that there is an offence; in my experience, if they want to stop me - maybe just because they are bored - they will.

A lot depends on the attitude test. If I meekly submit, show them my licence and allow them to look around the car, I will be on my way in a minute or two. If I start standing on my rights and demand that they tell me the reason for the stop, they will simply make one up: “You failed to stop fully at a junction.” “You were driving in an erratic manner.” “Y̶o̶u̶ ̶a̶r̶e̶ ̶b̶l̶a̶c̶k̶ ̶a̶n̶d̶ ̶d̶r̶i̶v̶i̶n̶g̶ ̶a̶n̶ ̶e̶x̶p̶e̶n̶s̶i̶v̶e̶ ̶c̶a̶r̶. Oops; I meant to say that we’ve had reports of someone acting suspiciously in a car similar to yours.” I could then be delayed for half-an-hour while they investigate thoroughly.

[x-ray_vision]

@Crafter_Man

Here in Ohio, if an LEO notices I have a gun under my shirt, they are allowed to detain me and demand I produce a concealed handgun license. They have the authority to do this even when there’s no evidence I have broken a law.

Before going with this premise, can anyone verify whether or not it’s true? I have found cites claiming that one must provide a license when asked, but can the police detain and demand a CCL “just to see” if one has a license, as the OP’s comparison is to not being allowed to be pulled over for that reason when driving?

[Channing_Idaho_Banks]

when you go fishing you are extracting a resource that is owned by the state.

[Airman_Doors_USAF]

@x-ray_vision

Before going with this premise, can anyone verify whether or not it’s true? I have found cites claiming that one must provide a license when asked, but can the police detain and demand a CCL “just to see” if one has a license, as the OP’s comparison is to not being allowed to be pulled over for that reason when driving?

Of course. Concealed means concealed. If they are able to see your weapon you’re not properly concealing it, but by attempting to you are subject to a permit check.

[x-ray_vision]

@Airman_Doors_USAF

Of course. Concealed means concealed. If they are able to see your weapon you’re not properly concealing it, but by attempting to you are subject to a permit check.

If one is not carrying it properly, I would assume it is breaking the law, no matter how minor of an infraction that may be, correct? Even if not a violation of the law (but somehow “improper”), it wouldn’t be “just to see” as compared to the driver’s license example. The OP’s scenarios seem to be regarding examples of when not doing anything wrong. I’m sure there are ways to notice someone is carrying a gun in Ohio without the holder improperly carrying. If not, then the OP’s CCW example is moot: something has deemed a detainment or request for a CCW reasonable that is beyond “just to see.”

[doreen]

@Crafter_Man

If I am driving a car, an LEO is not allowed to pull me over just to see if I have a driver license; the LEO must first observe me breaking a law before pulling me over.

This is not strictly speaking true. It’s true that the police can’t pull only you out of the stream of traffic and check to see if you have a driver’s license without some individualized suspicion, but under certain conditions, the police are permitted to set up a checkpoint and stop all vehicles ( or every fifth vehicle) passing through the checkpoint without individualized suspicion. The decision mentioned earlier also contains this line

The holding in this case does not preclude Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.

Prohibiting cars from being pulled over anytime, for any reason at the sole discretion of the officer doesn’t mean that every stop without individualized suspicion is prohibited.

[Tim_T-Bonham.net]

@Crafter_Man

a law enforcement officer (LEO)

@Crafter_Man

an LEO

@Crafter_Man

an LEO

Off-topic, but just curious: why the difference in the article (a/an) here?

[Cayuga]

@Tim_T-Bonham.net

Off-topic, but just curious: why the difference in the article (a/an) here?

Read it out loud.

“A law-enforcement officer.”

“An Ell Ee Oh.”

[x-ray_vision]

@Crafter_Man

If I am driving a car, an LEO is not allowed to pull me over just to see if I have a driver license; the LEO must first observe me breaking a law before pulling me over.

@doreen

This is not strictly speaking true. It’s true that the police can’t pull only you out of the stream of traffic and check to see if you have a driver’s license without some individualized suspicion, but under certain conditions, the police are permitted to set up a checkpoint and stop all vehicles ( or every fifth vehicle) passing through the checkpoint without individualized suspicion. The decision mentioned earlier also contains this line

Prohibiting cars from being pulled over anytime, for any reason at the sole discretion of the officer doesn’t mean that every stop without individualized suspicion is prohibited.

But is “just to see if one has a driver’s license” going to fly for the reason for police to set up a checkpoint? I doubt it. The police would have to show that checking for unlicensed drivers is a “special need that would justify the use of a police roadblock or checkpoint."

Can the Police Set Up Roadblocks for Any Reason? - FindLaw

I agree, though, that there is less of a standard than cops needing to observe one breaking a law before pulling someone over. Suspicion that one is breaking the law, for instance, is usually enough.

[doreen]

@x-ray_vision

But is “just to see if one has a driver’s license” going to fly for the reason for police to set up a checkpoint? I doubt it. The police would have to show that checking for unlicensed drivers is a “special need that would justify the use of a police roadblock or checkpoint."

https://traffic.findlaw.com/traffic-stops/can-the-police-set-up-roadblocks-for-any-reason-.html

I agree, though, that there is less of a standard than cops needing to observe one breaking a law before pulling someone over. Suspicion that one is breaking the law, for instance, is usually enough.

The case cited in your article actually says

We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.

So it seems that at least up until 2000 SCOTUS thought checking licenses and registrations was still sufficient reason for a checkpoint…

[Colibri]

@bob_2

Cops over here are not supposed to stop cars without reasonable suspicion that there is an offence; in my experience, if they want to stop me - maybe just because they are bored - they will.

A lot depends on the attitude test. If I meekly submit, show them my licence and allow them to look around the car, I will be on my way in a minute or two. If I start standing on my rights and demand that they tell me the reason for the stop, they will simply make one up: “You failed to stop fully at a junction.” “You were driving in an erratic manner.” “Y̶o̶u̶ ̶a̶r̶e̶ ̶b̶l̶a̶c̶k̶ ̶a̶n̶d̶ ̶d̶r̶i̶v̶i̶n̶g̶ ̶a̶n̶ ̶e̶x̶p̶e̶n̶s̶i̶v̶e̶ ̶c̶a̶r̶. Oops; I meant to say that we’ve had reports of someone acting suspiciously in a car similar to yours.” I could then be delayed for half-an-hour while they investigate thoroughly.

Moderator Note

bob++, none of this is relevant to the factual question in the OP. It also amounts to a professional jab, which is prohibited in GQ. No warning issued, but don’t do this again.

Colibri
General Questions Moderator

[Bricker]

These kinds of lines are shaped by various court decisions.

If your state allows open carry with no licensing required, police generally may not stop you and ask for ID just to make sure you’re not a felon, and thus prohibited from exercising an otherwise general right. (OF course, if they have reasonable, articulable suspicion to stop you for some other crime, they may typically require that you identify yourself, and the results of that identification may give rise to reasonable suspicion that you are a felon, at which point they can detain you long enough to confirm or dispel that suspicion).

So – if it helps, think of the difference as being drawn between behavior for which you must possess an affirmative permission from the state, and then draw a little extra line outwards to cover driving, which is so ubiquitous that the reasonable assumption police must make is that you are a validly licensed driver until investigation initiated for some other reason proves otherwise.

[Tim_T-Bonham.net]

@Crafter_Man

If I am driving a car, an LEO is not allowed to pull me over just to see if I have a driver license…

This can be done if they have reasonable suspicion that you are breaking the law.

For example: if officers notice that the license plate on the car is registered to person X, whose drivers license is suspended, they can pull you over to check for a valid drivers license. And they can do that even if the car isn’t actually registered to you, like it’s a girlfriends car or your parents car – anything where they have ‘reasonable suspicion’ that you might be driving that car. If you were ever previously stopped while driving that car, that’s enough. And with online computer records, and mobile computer terminals in police cars, all this data is much more readily available to officers in the field.

[Exapno_Mapcase]

@Bricker

These kinds of lines are shaped by various court decisions.

If your state allows open carry with no licensing required, police generally may not stop you and ask for ID just to make sure you’re not a felon, and thus prohibited from exercising an otherwise general right. (OF course, if they have reasonable, articulable suspicion to stop you for some other crime, they may typically require that you identify yourself, and the results of that identification may give rise to reasonable suspicion that you are a felon, at which point they can detain you long enough to confirm or dispel that suspicion).

So – if it helps, think of the difference as being drawn between behavior for which you must possess an affirmative permission from the state, and then draw a little extra line outwards to cover driving, which is so ubiquitous that the reasonable assumption police must make is that you are a validly licensed driver until investigation initiated for some other reason proves otherwise.

To go back to the OP’s question. What would be the bounds of legal enforcement for a fishing license in a state where open display is not mandated?

[x-ray_vision]

^ I’ve fished and hunted in several states and it’s been the same everywhere- you have to show your license upon request and it can be requested without suspicion of wrongdoing.

Below is an article regarding talk of allowing fishing licenses to no longer be displayed in PA. Here are quotes from a couple of game commissioners regarding the issue and it’s evident that in PA requesting for licenses just to see if hunters and fisherman have them is common:

“Our officers face a different situation. They have to check hundreds and hundreds of people quickly on streams and lakes.”

“Some of them get there at the dawn to get to their spot and if you pull them out to check their licenses, there will be a lot of complaints.”

Long-time Commissioner Bill Sabatose, of Elk County, noted that this is the third time the question of whether or not to display fishing licenses has come up during his tenure on the board.

The answer every time has been that people just want to be left alone, he pointed out.

“When they are fishing, it would cause a lot of problems if officers say, ‘OK we need you to come out here so I can see your license,’ and they lose their spot.

“It is different than hunting,” Sabatose added. “It would cause a lot of problems. I have never seen a Game officer go to a deer stand and check a hunter. They check you coming out of the woods.

“With fishing, you have all these people fishing in one stream.”

Display of fishing licenses to go on - Outdoornews

[pkbites]

I’ve been a LEO since '82 and I still can’t figure out how some agencies are getting away with this.

You see these types of stories during the holidays. Pulling people over on public roadways, no violation, no PC, no RS. No court precedent that I am aware of. How is that not an illegal seizure?