“Who are you to this child?” isn’t necessarily unfriendly.
Perhaps we disagree most on how much to take his version of events as the absolute objective standard vs how cynical to be of his telling of the tale. I’d be curious to hear the cops-eye view of the same sequence is all I’m saying. I suspect that her version has her being very friendly and polite and him being antagonistic. And both may be their own honest experiences of the reality. No, I do not take his perception as revealed truth any more than I would hers if I had it.
Based on his version of the events and that alone both he and the cop exhibited bad judgment. I think we agree there.
IANAL. Did the grandfather have the right not to be stopped at all? Or are you saying the police could stop him (based, I expect, on the 9-11 call). Then the grandfather has to give identifying information, but nothing else.
So the scenario is [ul][li]the police stop him[*]He says “My name is Joe Blow. I live at 212 Elm Street, Anytown, USA. I was born January 28, 1936. Am I free to go?” and the police have to say Yes immediately?[/ul]Or do the police have the basis for a stop (as distinguished from an arrest) from the 9-11 call? [/li]
He doesn’t have to answer any question, but can’t they detain him while they run his name for outstanding warrants or something?
He can be stopped (as in, temporarily detained) if the police have reasonable suspicion. I’m not sure if the 911 is sufficient for that, though I assume it would depend on the content of the call, which we don’t know.
He can be questioned regardless of any suspicion. Cops are free to engage in “the friendly exchange of pleasantries” at any time.
[quote=Shodan]
So the scenario is [ul][li]the police stop him[*]He says “My name is Joe Blow. I live at 212 Elm Street, Anytown, USA. I was born January 28, 1936. Am I free to go?” and the police have to say Yes immediately?[/ul][/li][/QUOTE]
If the police have “stopped” him in the legal sense, then he is not free to go until they finish their investigation of whatever gave them cause to stop him. If they are just having a pleasant conversation, then yes, I think that’s about right.
I am not sure whether the police are obligated to immediately answer the question either way. I suspect that, in practice, as Bricker suggests, they avoid answering the question and just keep asking their own questions.
Having re-read the story several times, I don’t know why so many people assume this was “racist profiling”. “Sexist profiling” perhaps. “Sexist/Ageist” even.
Certainly the man was within his rights. But, if he was babysitting my kid and I heard this story I would think that perhaps Grandpa could find a better time and place to get up on his hind legs and get tuff with the cops.
It’s the part where the police say they have a complaint about a suspicious looking man of one race walking with a child of another race. And provide no other reason for the stop.
That’s not an option here. If he just answers and moves along, without first confirming that he’s free to go, then he could be charged with resisting arrest, as the lawyers in this thread have already explained. If he wants to move along, he has to ask “Am I free to go?”. The question is just whether he’s going to make the encounter brief, by cutting directly to the one and only question that can end the encounter, or if he’s going to allow the police to prolong it with irrelevancies.
This scenario reminds me of a number of stories from our son’s childhood. We adopted Nigel as a baby in Jamaica and he is now 18 years old (he’s black, we’re white).
We were sitting on the grass at the University one afternoon with Nigel, age 2, toddling around. An African American woman bent down to talk to him and asked him where his parents were. He pointed at us, and her eyes followed his finger past us, obviously looking for black parents. Since she didn’t see them, she took his hand and said, “Come on, little boy, lets go find your parents.” He kept saying, “They’re right there!” but she didn’t believe him. We laughed while they started to walk away, and finally rescued him before they got too far.
When Nigel was about 4, he and I drove down to Mexico for the day. Coming back over the border, the US border guard glanced at him in the back seat and then asked me, “Who is he, ma’am?” I said, “He’s my son.” Guard thought he’d test this, so he pointed at me and asked Nigel, “What do you call her?” Nigel thinks for a minute and says, “Jill.” I said, “No, silly, you call me ‘Mommy’!” (which is what the guard wanted to hear). Nigel said, “That’s not what the guard would call you, though. Lots of people are mommies.” I ended up having to show the border guard Nigel’s passport to get back across the border.
Some places, like Planet Fun, give kids and parents wrist bands and match them up as they leave to be sure nobody’s ripping off a kid that doesn’t belong to them. I didn’t do a case-control study or anything, but I noticed they never checked Nigel’s bracelet against mine or my husband’s, while they did check other families’. Only thing we could figure was that they assumed no white person would steal a black kid!
The key reason to ask “Am I free to go?” is to force the police to commit to a path. As I suggested above, the police often (and, indeed, are trained to) walk both sides of the street, so to speak – they create an environment which strongly encourages compliance, all the while holding in reserve the claim that it was a consensual encounter which you were free to leave at any time. Of course, the moment they develop reasonable, articulable suspicion, or probable cause, they have the justification to escalate. So they prolong the consensual encounter as long as they can while trying to develop some higher indicia of suspicion.
IANAL, but I think the cops aren’t required to answer the question. I think if they’re not stopping you, it’s just a “friendly conversation”, and they have no obligation to answer anything.
If they’re arresting you, or stopping you, it gets formal. Then, they might be obligated to tell you you’re not free to go-generally, I’d assume they don’t want to answer the question because if they did, the answer would be that you are free to leave.
Either way, however, if a cop want me to politely answer his questions, he’s damn well going to politely answer one of mine. If he screws around, my level of interest in cooperating with him suddenly goes away. If they want to play games about what their authority is, why should I help them-they’re trying to manipulate me.
And if he is arresting me or detaining me, then I’m going to want the advice of my lawyer. IMMEDIATELY. And I’m not saying anything else until I do. So I have a very strong interest in finding out the answer.
What if the man was wearing dirty, smelly clothes, and the child was wearing a pristine, expensive looking jumper? Probable cause for a crime? No. Worthy of investigating? Most definitely.
But does asking the question in fact force the police to commit to a path? That’s what I’m not clear about. If I ask that question, can’t they just ignore it and continue to ask me questions (as they seemed to have done in this case)? If I ask the question, and they ignore it, am I then free to walk away?
Then if I understand both of you correctly, the grandfather’s rights were not, technically speaking, violated. (Assuming the 9-11 call was sufficient cause for the initial contact. )
And the purpose of the “Am I free to go?” question is to remove the ambiguity of “was this a consensual encounter”* to a legal “stop” (if I understand Richard Parker’s phrase correctly). Maybe the problem I have is that for me, it would be a consensual encounter. So I would have no trouble dragging out pictures of my other grandchildren, and boring the police officer to death with endless stories of all the wonderful things my grandchildren have done, with informative side bars concerning potty training.
Did I mention my daughter gets straight A’s?
*I like that phrase. It makes it sound like a prelude to a prostitution bust.
Sure, they can refuse to answer. But I think you defuse the possibility of a resisting arrest charge by saying, the second or third time, “So, unless I’m not free to leave, I’ll be going now.” And then slowly and deliberately moving away. THAT certainly forces their hand; they can tell you not to leave or let you leave. The key element is to show unambiguously that you were “seized” within the meaning of the Fourth Amendment as early in the encounter as possible.
At least, that’s what I wanted to be able to demonstrate during pre-trial motions.
No “cause” is needed for a consensual encounter. The police are free to step up to you and begin a conversation. The instant you’re not free to disregard their questions and leave, you’ve been “seized.” This violates your rights, unless there exists at least reasonable, articulable suspicion on the part of the police that a crime is afoot.
He wanted to leave and could not.
Yes.
That’s fine. But not everyone shares your gregarious and expansive nature.
To summarize, it’s most useful to think of it as a hierarchy. Friendly questions < Stop < Arrest. The first stage requires no justification. The second stage requires reasonable suspicion. The third stage requires probable cause. One stage can lead to another as more information is developed. The key issue distinguishing “consensual questions” from “stop” is your ability to leave the encounter.
Bricker, that makes sense. Thanks.
A final thought: I suppose it is almost always the case that in any individual police encounter in which one has nothing private (legal or not) to hide, the best course of action is cooperation. The problem is that if only those with something they want to keep from the government exercise their rights to do so, then such people are inherently suspicious and police will be more likely keep their nose in their business or even manufacture reasons to further investigate them. That would be OK if the only things people tried to hide were illegal things, but there is a whole realm of things we might legitimately want to hide from the state without tipping our hand by the very exercise of our rights. For example, suppose the Grandpa’s child was in drug rehab and he was embarrassed of this fact. When asked where the grandchild’s parent is, he might prefer not to answer. We want him to be able to exercise that right without raising the hackles of the police. So it might make rational sense for everyone to exercise their rights when they can, so that the exercise of rights does not itself become suspicious. Just a thought.
So they do need reasonable cause before they can perform a “legal stop” and run warrants and such? I suppose the 9-11 call wouldn’t be enough.
I understand there is a difference between the “reasonable suspicion” that is enough to warrant a legal stop, and “probable cause” for an arrest. Or do I have that wrong, too?
No, I just like bragging on my kids. And it will be worse with my grandchildren, when I have some.
Let some Gestapo wannabe stop me because my grandkids are Asian and I’m not. By the time I finish with even the first set of baby pcitures, they will have to threaten me with a Tazer just to get me to shut up and go away.
I mostly agree with what Algher said in post # 80.
I hear accusations here that the police were doing racial profiling. I don’t think that racial profiling applies. Racial profiling would imply that they asked questions only because one of the individuals was of a certain race. I believe from what I read in the thread is that they asked questions because the adult and the child were of different races, so it is less likely that they are related than if they were of the same race. It seems to me that this is just common sense.
I don’t see how it is a great triumph for civil liberties for someone to tell a policeman, when the policeman asks you “is this your child?”, to answer “None of your business. Am I free to go?” An example of a great triumph for civil liberties is Rosa Parks refusing to move to the back of the bus. I really don’t see how it would harm anyone’s civil liberties to say “I am watching this child with the approval of her mother.”
Wholly aside from the issue of civil liberties, I believe that treating a policeman like a human being instead of someone who is automatically my enemy is a better course of action in a civilized society. At some point you may want to take an adversarial approach but in general I don’t see how it’s so laudable to be obstructive.
Not a great triumph, surely, but an exercise of those rights. Sometimes the most important exercises of civil rights (see free speech) are the ones we find distasteful, or don’t want to emulate. They’re rights not because we can do something everyone favors with them, but because people who we very much dislike are protected by them to do things that we find patently offensive. (and this case doesn’t even come close to that level).
I agree with treating a policeman like a human being. Is there any suggestion here that the godfather was anything less than polite? He asked a question, and the officer refused to answer it. That, to my mind, is the impolite thing.
Correct – the 9-11 call wouldn’t be enough, because it failed to describe a crime or circumstances from which a reasonable person could infer a crime.
Right. Probable cause exists when a man of reasonable caution believes that a crime probably has been committed. “Reasonable, articulable suspicion” is a level of suspicion below probable cause, but above an inchoate hunch or guess. To reach reasonable suspicion, the cop must be able to articulate specific facts that gave rise to his suspicion that a crime was involved. Needless to say, race alone can never serve as the basis for reasonable suspicion.
