In your neck of the woods? How many departments/precincts did you work for?
If in only your neck of the woods “Most weren’t” looking to be on a power trip, that means some were. Is most 55%? 65%? Did you take a poll, or just eyeball it? Were you aware of everything every cop in your division was up to?
It’s clear to me that most cops aren’t power tripping ass-holes. It’s also clear to me that a not very small minority ARE.
There is nothing in the federal constitution that forbids an officer from approaching an individual and asking if they mind answering some questions;
Florida v. Royer.
A person has been seized in the 4th AM sense when a reasonably prudent person would feel they are not permitted to leave, sometimes known as the Mendenall test, from United States v. Mendenhall.
Quoting from a very famous case, Illinois v. Wardlow;
“An individual’s presence in a “high crime area,” standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation, Adams v. Williams, 407 U. S. 143.”
Depends. Police can use the “totality of the circumstances” test to establish if Reasonable suspicion exists. As we see in the last sentence from above, that is the equal of the totality test, basically.
Insist, as you use it, is a constitutional right of the officer then, as it stands out as a “show of authority” to obey an order.
I have a case in my notes, can’t access it now, where a person was awarded $500.00 when an officer freely admitted he frisked the detainee without cause.
Damages MUST be proven in a 1983 action or only an award of $1.00 can be given by a trier of fact.
State constitutional violations may be subject to more damages. The illegal frisk is a basic “de minimus intrusion” and don’t expect big damages. An unconstitutional detention, depends on the duration for damages I suppose.
Here is a case from memory, in the 6th circuit, detailing whether Richardson was under arrest or simply a detainee in a terry stop.
[quote=“colonial, post:7, topic:654213”]
A stop is justified if the suspect is exhibiting any combination of the following behaviors:[ol]
[li]Appears not to fit the time or place.[/ol][/li][/QUOTE]
Reconsidering the ironic facial hair and vintage clothing now, hipsters? Better hope Officer Friendly doesn’t find the antique snuff box under your spats.
Kinthalis wrote…“It’s clear to me that most cops aren’t power tripping ass-holes. It’s also clear to me that a not very small minority ARE.”
I couldn’t agree more. The nature of the job and the associated authority would indeed appeal to those that would misuse the authority.
Thanks to those who supported my point.
I agree. A decent number of police are actually decent, just like a decent number of shopkeepers, taxi drivers, etc. The ones that aren’t create headlines.
OTOH, the dispute in NYC seems to be about a deliberate policy to target minorities, there is a lawsuit that includes a tape of a superior officer threatening discipline if the patrolman didn’t stop more of the “right type” of people. Fortunately, the cop who made the tape seemed more interested in proving his point than his career longevity.
OTOH, in the category of decent people, maybe the policeman in deltasigma’s experience honestly believed the situation qualified, and the judge disagreed. Good for the cop for being honest instead of “going for the kill”, and good for the judge for enforcing “reasonable”.
The problem is you put cops out there and give them vague guidelines, and then the courts either second-guess and slap them on the wrist for being honest, or back up any old lie. Other than personal integrity, where’s the incentive to be honest and fair? The amazing thing is how honest and fair most are. (I know whenever I got a ticket - I deserved it, and I did not give the cop a hard time. The one time I politely disagreed about the exact timing of a yellow and red light, he let me off.)
The NYC cases, IIRC, stem from a simple situation:
(a) the targeted group, younger males, is typically responsible for much of the crime - not because of race, but because the economic underclass typically contains the criminals. Race and dressing style just makes them easily identified targets.
(b) experience with zero-tolerance found that it gave good results - arresting someone for turnstyle jumping or kicking in a window often yielded someone wanted for more serious crimes - skipping court, drug or weapon possession. NYPD brass probably thought they’d skip the step of waiting for a minor crime to happen. Unfortunately, the law does not really allow that.
This is very insightful since I don’t think you’re an old fart like me and remember the Warren court.
When the supreme court got Rehnquist as chief and the pendulum started swinging back from some pretty aggressive judicial activism to the opposite extreme, it was a dark time for defense attorneys. So many of the previous standards were vague and specific to each set of circumstances, that you could find a decent argument to make for suppressing evidence a good chunk of the time.
The type of situation I remember most clearly was the search incident to an arrest. The old rule was from Chimel and said that you could only search the area under the arrestee’s immediate control. Defendants had a fucking field day with that. And so many other situations were like that it was getting to the point where the cops had to be constitutional lawyers.
Gradually SCOTUS went about trying to clean some of that up. For this particular issue it was fixed in Belton - at least in the context of arrests that occurred in an automobile. That could get really sticky. So the court basically said, you know what, fuck it. The whole car is fair game because there’s no other way to deal with this that gives clear guidance to officers in the field.
But even now, it’s easy to slip up and any good defense attorney will be looking at everything with an electron microscope.
I am not a lawyer, but it is my understanding that a law enforcement officer (LEO) can only detain (but not arrest) you if at least one of the following is true:
As noted above, RAS is an acronym for Reasonable Articulable Suspicion. You can think of RAS as “weak evidence.”
During detainment, which usually lasts under 1 hour, the officer is trying to find good, hard evidence that you have committed a crime. In other words, the LEO is trying to turn “weak evidence” into “solid evidence.” If the LEO finds solid evidence, he or she then has probable cause to arrest you. If the LEO cannot turn RAS into solid evidence within an hour or so, the detainment must stop and you are free to go.
This has been an issue here in Ohio for folks who exercise their right to open carry (OC) a handgun. LEOs have been known to detain these people and ask for I.D. simply because they are OC’ing a handgun.
The attitude arrest.
Simple terms, “Probable Cause.”
Incorrect.
Probable cause is a higher standard than reasonable suspicion, which is all an officer needs.
IANAL, but I believe this is the progression:
encounter
↓
reasonable articulable suspicion (RAS) and detainment
↓
probable cause (PC) and arrest
Any LEO, at any time and for any reason, can have an encounter with you; they don’t need RAS or PC to simply approach you and ask you a question. This is pretty much true for any person, not just LEOs.
If the LEO has RAS that you have committed a crime, but not PC that you have committed a crime, the LEO is allowed to detain you for a reasonable amount of time (up to an hour or so). During the time you are detained, the LEO will try to gather more evidence in an effort to turn RAS into PC. If the LEO can find PC you have committed a crime, you will be arrested. If the LEO can’t find PC you have committed a crime within a reasonable period of time, the detainment must end and you will be free to go.
The trouble with this sort of judgement is, it is like pornography. Good luck finding a single description that fits, but “we know it when we see it”.
I read about one stop where the cop saw home burned CDs with handwritten labels on the seat, so therefore decided to search the whole car because the guy “had enough discs that he must be engaged in selling piraetd music discs.” hence a crime. They found a handgun under the (unoccupied) passenger seat, but the car was borrowed and there was no evidence tying the fellow to the gun. IIRC the gun evidence was thrown out.
Logically, a guy in the back seat should not normally give you grounds to search the glove compartment. In the passenger seat, possibly. Trunk? If the guy is acting weird on his front steps, does that give you grounds to search the whole house without a warrant?
As long as the seizure is reasonable, it is permitted by the 4th. Detention can be based on other factors, but that is basically correct. A consenual encounter can turn into an investigative detention at times, and there may be a fine line between them.
Investigative detention time limits have not been bright lined by the Supreme Court, see United States v. Sharpe. There is also law that an extended detention without reason turns into an actual arrest.
This case from memory, the police held the person for 16 hours and it was deemed Constitutional. Sharpe is cited here, but I knew it fom memory too
It is my guess the police start it out as a consensual encounter type meeting, such as approaching them and saying “Mind if I ask you a few questions”. This will not be considered a “show of authority” where a person would believe they are “seized”.
Reading just your OP header, since 1987, and a short bit in 2006, the subject is moot.
Poor depth perception.
Yes, that would be considered an “encounter.” But there have been a few cases here in Ohio where open carriers were detained, IDs run, etc. In one case, the LEO bent his DL in half before returning it to him. 
Sometimes it is not clear if you are being detained or not. So if an LEO approaches you and asks you questions in an official manner, you should always ask, “Am I free to go?” If the LEO says you are not free to go, you are obviously being detained. During detainment, the only thing out of your mouth should be, “Am I free to go?” You should ask this about every 5 minutes. If you are not being detained, you can (and should) walk away.
State law is probably more relavant than federal law.
In many states there is a law that you are required to identify yourself to LE. This gives them reason to stop you in many cases. This gives a open door to the search. But not all states have that law.
Very true, and this is something I neglected to mention. Here in Ohio, I am required to provide my name, address, or DoB (when asked by an LEO) if I am suspected of committing a crime.
The case about requiring you to identify yourself, IIRC - a man was in an argument in public with his daughter, so someone called the police (Texas?). By the time the police arrived, the problem was settled and neither wanted the attention of the police so they (he) refused to identify themselves. I think the issue was ruled that when the police are investigating a possible crime and believe the person to be of interest, that person must identify themselves to police. Not sure if it’s been settled that a random person walking down the street is required to, but the “can’t beat the ride” rule applies. (“The person appeared to be irrationally argumentative, your honor”) Of course if you lie to police you are committing a crime.
Sure, but that’s something else: basically, don’t resist arrest. You will lose, and then you’ll have a resisting arrest charge on top of whatever else you got nailed for. Failure to heed this bit of common sense advice, along with failure to exercise the constitutional right to remain silent, are but a few of the myriad entries in the “Criminals R Dum” file.