When Can A Police Officer Lawfully Order You To Move Along?::
The DC Checkpoint plan I blog about below raises another interesting question: Can a police officer order you to move along -- that is, to leave the area -- without any suspicion that you've committed a crime? Stephen Henderson recently wrote a very interesting article on the topic that is worth reading if you're interested:'Move On' Orders as Fourth Amendment Seizures, recently published in the Brigham Young University Law Review.
This topic also raises something I've long wondered about: What are the Due Process limits on criminalizing failure to obey an officer? In particular, is there a constitutional requirement that the person understands that failure to obey is a crime? Citizens generally have no idea when they have to do what an officer tells them to do, and I would think there is some sort of Due Process requirement of fair notice that the order has to be obeyed before an arrest can be made.
This topic also raises something I've long wondered about: What are the Due Process limits on criminalizing failure to obey an officer? In particular, is there a constitutional requirement that the person understands that failure to obey is a crime? Citizens generally have no idea when they have to do what an officer tells them to do, and I would think there is some sort of Due Process requirement of fair notice that the order has to be obeyed before an arrest can be made.
I'm just curious...what sort of fair notice seems correct, other than the officer saying something to the effect "Do what I say or go to jail."
I only ask because situations as described tend to be quick to develop and certainly subject to time constraints as to resolution.
In response to your first paragraph, I think not, without some public safety consideration, such as crowds who might prevent entrance or egress to emergency personnel, etc. In the instance suggested by the DC police, I don't see how they plan to enforce their scheme, which frankly, sounds moronic to me. And I like cops.
Maybe they claim to be creating private communities, which can be posted.
But I doubt it.
More to the point, I was thinking of the common "Move along now" scenario - fires, auto accidents, public or sporting events, the like.
So I guess, yes, an officer does need to inform someone that a failure to obey can result in arrest, if possible. Of course, the average officer is almost always going to include some type of warning- albeit perhaps profane and scatological - when an order is challenged, even if the officer's authority to arrest is only in his mind.
In my experience, this is also very true of officers as well. It is not a well taught subject.
You didn't seem concerned about due process back in the winter when you blogged about the guy who got tased after refusing to sign a ticket, who was never warned that failure to sign could get him arrested. Or is that case different because the gut could have been arrested with no warning under Atwater?
It suffices to say that the majority of DCians (DCers?) will feel compelled to answer questions.
I second that! Awhile back, I rode around in the back of a cop car with another person. We'd both witnessed vandals in the neighborhood and the cops were asking us questions and verifying what we saw.
The officer gave me a ride back to my house and admonished me not to discuss details of the case with anyone, especially the news media. (For those holding their breath at home, no NYT reporters called my house later even though I was a key witness to petty vandalism.)
I can understand wanting to protect the integrity of the legal process...but do patrol officers really have the power to enjoin the speech of witnesses? Or was his admonishment just a cop way of saying "we'd like it if..."?
I've never understood how these guys can do what they do without themselves going to jail. Pushing people out of the way, forcibly restraining bystanders, screaming and yelling, intimidation, you name it.
Well, the tazer incident arose in the context of a civil suit, in which the man sued the officer for excessive force. We discussed whether the officer had used excessive force. If the man had been prosecuted for failure to obey, then we presumably would have instead discussed whether he could be prosecuted for failure to obey. As it was, I didn't see the issue raised, as I don't think he was prosecuted for that.
The police have no power to enforce that order. The purpose of the order is to prevent cross-contamination between your account and other witnesses. When the case goes to court, the defendant's lawyers could make it seem as if you had colluded with other witnesses to frame their clients. Independent witnesses who tell the same story without talking to each other first make for powerful evidence.
You wouldn't be in trouble with the law, but the case in which you were a victim or witness could be adversely affected.
If it's "legally" permissible for a person to ask that question, is it something that can really be done in practice? I imagine if a police officer here in Chicago told me to "move on" and I impishly said "Do I have to obey?," I'd probably have some form of h--- to pay.
I've lived in a couple of communities--Venice and South Los Angeles--where police behavior has been a matter of great public controversy. The police reacted to organized citizen attempts to monitor their conduct and hold them accountable for it by using their arrest powers to prevent that monitoring.
Any efforts to witness, record, photograph or film questionable police conduct were met by orders to move on, even if the monitoring activity was in no way interfering with the police. Those who refused to move on were arrested on charges like obstructing a peace officer or interfering with an arrest. Usually the charges were never filed or thrown out after they were filed, and the few cases that went to trial ended up with the defendants acquitted. But the police purpose, to prevent citizen monitoring of their behavior, had been accomplished.
The police tried that in Orlando when a group called Cop Watch began filming their activities. Cop Watch simply went into court and got an injunction requiring the police to not interfere with the monitoring activities.
Maybe I'm being dense, but on the facts, without more here, pursuant to what authority did Hiibel have to answer? What was Hiibel doing, if anything, that caused the officer to ask? If giving his name would help in some way to incriminate him (or even if he doesn't know why the officer is asking), could he refuse on the basis of the 5th Amendment?
In our jurisdiction we have IWOA or "interference with official acts" that is too broad IMO but is seldom challenged because it is a simple misdemeanor. It costs too much to be innocent.
Orin: Does the Court's opinion in Morales (meaning the part of Justice Stevens's opinion that was for the Court) not establish the proposition you are wondering about in the post? The antiloitering statute in Morales was vague, but criminal consequences only attached to failure to obey a dispersal order by a police officer (which could only be given to people who were already loitering within the meaning of the statute). The Court held that the dispersal order requirement did not save the underlying statute from its vagueness. Thus, a statute criminalizing failure to obey a clear order, but leaving vague the circumstances under which that order may be given, is unconstitutional. Am I misreading your point (or Morales for that matter)?
I politely replied, "Do I have to answer that question?"
He ordered me to face the front of the car and place my hands on the hood. He then frisked and handcuffed me.
He then asked me if I want to tell him who I was or if I wanted to go down to the station.
Just out of college, I now feared losing my first job where I was scheduled to work in a couple of hours. I wondered what my parents would say. While I have never used illegal drugs, my roommate was a recreational drug user and I was worried that a search of my apartment would turn up drugs.
So I told the cop what he wanted to know and answered all his questions.
He told me that he had seen me hide from him when I went to cross the road to get to the soccer field. Plus there had been burglaries in the neighborhood.
Actually where I crossed the road there was no shoulder and the bushes made it difficult to see if there was traffic. So I had peered out to see if the road was clear and when I saw a car (the police cruisers) I stepped back to avoid being hit. I have no idea of there were any burglaries in the area.
Any officer with an IQ over 70 will be able to present evidence that a subject was acting suspiciously and there are always going to be unsolved crimes with no description of the person who committed them. So in reality, unless you are an independently wealthy and committed civil rights activist, cops can stop and ask you what ever they want, and you are basically at their mercy.
The practical question of how it is wise to respond to arguably unlawful exercises of officer authority tends to be rather clear and uninteresting. The technical legal questions about which exercises are in fact unlawful can be fun if you like that sort of thing -- in some ways, more fun because they diverge so plainly from everyday reality.
Yes, as Holmes reminded us, a right is only a real right if you can go to court and obtain a remedy for its violation. In cases in which there is no credible third party witness (which is often) and no judge or jury predisposition to skeptically examine the testimony of a police officer (also a frequent occurrence), the practical ability to establish such violations is de minimis.
Nope, that's not an analogous scenario.
Why not? Because the law is clearer about your right to refuse? (I would say the two situations are similar precisely because it doesn't much matter, practically, that the law is clearer in the trunk search scenario.) Or for some other reason?
Maybe I'm just unusual in this regard but I was raised with the notion that one ALWAYS does what an officer tells one to do unless the officer tells one to jump under a bus or something. Maybe I'm just a sheep -- I'm obviously not a lawyer since this issue would never have occurred to me to inquire into.
For me, it's simple. He's the police. He's got the badge. He's one of the good guys, presumptively anyway, until he proves that he's not. If an officer asks me to move along or for information, I assume there's good reason for it aside from a general desire on the officer's part to be a bully. I think officers have a tough and dangerous job that shouldn't require them to justify their every action to any and every citizen with which they come into contact.
Furthermore, s/he has authority to arrest people. As a general rule, I do not want to be arrested merely for refusing an officer's request/order or for demanding that the officer justify the request/order...unless, and I stress this, I feel that I am exercising some important right: peacefully protesting at an abortion clinic, standing the required distance from the clinic, not blocking traffic or pedestrians, not hassling clients or personnel entering or exiting the clinic. Under some such situations, I tell the officer that I have the first amendment right to be there doing what I am doing and the only way he/she will get me to move is by arresting me and bodily carrying me away. But if it's just a matter of me hanging out somewhere that is not my personal property, if an officer tells me to move along, I move. I might say, "Yes, of course officer. May I know why?" or "Sure! What's going on?" but I'm just not that into civil disobedience for the sake of making the point that unless the officer of the law goes through chapter and verse of the relevant penal code, I have a right to do pretty much whatever I please.
So am I undermining the Constitution or something by this "Yes officer" attitude?
Nothing in my trunk would be of the slightest interest to the police but maybe my car matches a description of a vehicle involved in a burglary. The sooner I open the trunk, the sooner the officer can go on with whatever s/he's doing to catch the burglar or whatever and the sooner I can get on with whatever I was doing.
because there is a difference between
"can i look in the trunk?"
which is a REQUEST
vs.
"you need to do X now"
which is a demand.
fwiw, i would always (unless some weird exigency prevented it), tell somebody they needed to comply with X or they will get arrested before arresting. in fact, i have, and i have never witnessed an officer arrest somebody for obstruction, etc. who did not give at least one (usually 2 to 3) admonishments that arrest would result upon refusal.
regardless of whether it's legally required (and ime, judges are gonna want to know there was a warning), it's simply good practice - the goal is to gain compliance, not make an arrest.
this makes no sense to me. i CAN'T (in my jurisdiction), even ask for consent w/o at least reasonable suspicion.
here is one caveat. if i am given consent to search and i find sometbing minor (and i have seen other officers with the same policy), i will usually give a warning. did that the other day with some brass knuckles (which are technically illegal to carry in public).
but if the person refuses consent AND the officer has PC, and the officer has to go through the trouble of getting a warrant, there will be no 'breaks'.
that falls under the "waste my time, you don't get the breaks" legal concept.
whit: I agree that there is a formal difference between a request and a command. And that formal difference makes a big legal difference: without individualized suspicion a command may violate the Fourth Amendment but a request (absent unusual circumstances) will not. So a responsible officer who is complying with the law will be careful to distinguish between the two. But do you think that (all, most, many, some) citizens do, in fact, feel free to decline an officer's request because it is phrased as a request? Obviously your experience is from the officer's perspective -- do you find that it was common for people to refuse consent searches? Do you observe people consenting to a search who would clearly rather not, even when you might in your own mind feel that you lacked probable cause and not plan to seek a warrant?
I'm reminded of Lt. Schrank in "West Side Story":
"Yeah, I know it's a free country and I ain't got the right. But I've got a gun and a badge. What have you got?"
If an officer asks you to move along, then move along. Unless you want to rubber-neck or purposely antagonize the officer, you have no real reason to stick around.
Back in the day if an officer asked you to do something, you did it. People were respectful and things generally worked better. Today, we have far too many little Hitlers running around (and, no, they are not the police.) These little Hitlers think that the world revolves around them, that they should be free to prance about and create trouble wherever their can, because it is "their right".
People today are narcissistic, arrogant, rebellions, and believe that license = liberty.
I fear for our country.
For me, it's simple. He's the police. He's got the badge. He's one of the good guys, presumptively anyway, until he proves that he's not. If an officer asks me to move along or for information, I assume there's good reason for it aside from a general desire on the officer's part to be a bully. I think officers have a tough and dangerous job that shouldn't require them to justify their every action to any and every citizen with which they come into contact.
You must be from the Old School. Back in the day when people understood that they were not the center of the universe. When people didn't run around creating trouble just to create trouble.
You know, back when people actually had common sense.
Ooops, "Rebellions" should have been "Rebellious".
i'd say a pretty fair %age of people refuse consent searches ime. probably at least 1/3 or more.
fwiw, a large percentage of consent searches are suspect initiated, so not sure how to count those. i've asked people "anything in the car that's illegal" and people voluntarily say "no, go ahead and look.", w/o even a request to look. i know defense attorneys might not believe it, but it's pretty frigging common. that's, i guess a consent search, but not initiated by the officer. pretty common, fwiw.
as for your last question, i'd say about 50% of consent searches i do are based on probable cause. in those cases, i ALWAYS say "i believe i have probable cause to APPLY for a search warrant. based on that, i am asking if you would voluntarily let me look in your...".
that holds up 100% in court (so far), and i have seen people get that resigned look on their face, where it's clear they don't "want to" in one way, but clearly do in another way.
and note that as long as you use the word "Apply" not "get" you are not vitiating the consent. i guess if it was later determined you did have PC, "get' might be ok, but i prefer Apply since it makes it much more open ended and that's the whole point of consent.
i used to work in a jurisdiction where we didn't HAVE any real search incident (for the vehicle even if they were in it, for closed containers, even on the person etc.--- HI), so you get very good at knowing consent case law.
also, contrary to claims/beliefs by many, you are much more likely to get consent by being friendly, non-threatening, and asking in a matter of fact tone than by playing "bad cop" and sounding intimidating, etc.
in summary, based on the rather high # of people who refuse consent, i would say - yes to your question.
i also note that (again), when people refuse consent and a search is later conducted (pursuant to warrant), there will be no breaks, like there would be with consent.
happened the other day at a juvenile drinking party. kid refused consent to enter. we got a warrant. everybody with any alcohol on breat and under 21 got cited and several got arrested (furnishing, etc.). with the consent, would have been warnings most probably and cites at worse for the most egregious offenders.
again, the "waste my time" philosophy.
A desire to be as helpful to the police as possible. They are out there every day protecting me and my neighborhood. Who were the Jets and the Sharks but gang members willing to carve one another up along with anyone who got in their way. Me? I prefer law and order to the law of the streets enforced by gangs. Maybe that's just me, I don't know, but I never really identified with the gang members. I'd just as soon the police move-along-ed the gang members right out of my neighborhood. The neighborhood is likely to be much better off.
Interesting. I find the former much more intrusive - and emotionally grating - even though I know they're going to do it long before I pull up to the gate.
No, sadly, they are not presumptively the good guys. At best, they are the average guys -- which means half of them are below average.
Treat them as you would treat any other average guy who has been given a gun and a club, and the privilege to use either without legal repercussion.
I noticed a guy in a nice sport coat looking at me hard. He’d been hovering around the entrance ushering in the arriving guests, generally appearing to be a maitre’d of some sort. Finally he says to me, "Ok, that's enough."
So I say, "Isn’t this America? Don't I have free speech?"
"Yeah, but you've made your point. Be nice"
"What? Is there a limit?"
"You've made your point"
"That's your opinion. Opinions are like a**h*les, everyone's got one"
"Did you call me an a**h*le? Come over here"
He then grabs my arm. My first thought was to execute kote-gaeshi (an aikido move that would have broken his wrist) but my wiser self prevailed. It turns out he's a plain clothes officer (a controversial Boston homicide detective I discovered later). He and another uniformed officer who joined him forced me away from the crowd.
"Nobody calls me an a**h*le"
He shoves his hand in my back pocket. “Got an ID?” I immediately prevented him from pulling out my wallet and said, “Sure. Take your hand out of my pocket and I’ll gladly show you.”
So finally I apologize for not calling him an a**h*le and they let me go after running my name through their computer looking for some excuse to arrest me. As they walk away I yelled, "More crushing of dissent in the Cradle of Liberty! Is this a police state? Did you see those Gestapo tactics?" Then the uniformed cop comes back and warns me, politely, that if I persist in my behavior they were going to arrest me for disturbing the peace. So realizing that I might just be pushing their limit, I relented and left. I didn’t want to be the guy arrested for heckling Gray Davis.
"Civil disobedience is the only way to mask such governmental abuses, ask Washington, Adams, and Jefferson."
Surely you meen "to UNmask such governmental abuses."
Well, sure. But it goes back to my original comment where I said, "...I was raised with the notion that one ALWAYS does what an officer tells one to do unless the officer tells one to jump under a bus or something."
I humbly suggest that "Move along" and "What's your name" are rather easily distinguishable from "Leave your home and belongings and get in this rail car to destination 'Shut up and get in'" as being more akin to "Jump in front of that moving bus."
And some officers MAY be apathetic browboot (?) bureaucrats just out to throw their weight around just because they can but I think it not only prudent and wise but proper to assume otherwise. That is, to assume that the officer has a good reason for his request and is acting in good faith. I'll let someone else unmask them if getting arrested and being dragged off to the station-house and all that will likely ensue is really all they have to do with their time. I've got better things to do.
Do you mean "unmask"?
I know of--used to know many more forty years ago--the folks who would try to provoke cop trouble. Not the big rally where you tried to get a cop to look mean in time for the six thirty news. But just because, one fine day, and then start howling about the police state. This type of activity is confined to adolescents of all ages.
The problem is, as much as they merit contempt, from time to time they are actually pushing back against the envelope, which the grownups rarely do.
For example, if, during a traffic stop, a cop asks me if he can look into my trunk, I say he can, I might feel I'm not pushing back against the envelope. But I'd probably do it because I'm an adult and have other things on my mind and schedule.
The cop could tell me to go on my way. He could, if there's nothing else pressing, punish me by telling me to wait until he gets a drug sniffer out there. He could make we wait until he gets a drug sniffer dog and then pop a worn baggy of grass into my trunk.
I have to give those graying-ponytailed narcissists some credit. They're willing to take the hits that result from provoking trouble, one provocation in one hundred resulting in actual social good.
I'm sure this won you sympathy from virtually every bystander involved.
So a policeman who posts here (which suggests to me that he is more interested in and knowledgeable about civil rights than most police) boasts that he uses his discretionary authority in enforcing laws against victimless crimes to punish people who invoke their rights.
Why are you blaming the police for enforcing stupid laws? It says something about the quality of the laws when police officers find enforcing them to be largely a waste of their time.
So wait, I know that carrying brass knuckles is against the law, I carry them anyway, and I should expect, as a matter of course, no punishment if the police catch me breaking the law?
I humbly suggest that "Move along" and "What's your name" are rather easily distinguishable from "Leave your home and belongings and get in this rail car to destination 'Shut up and get in'" as being more akin to "Jump in front of that moving bus."
You said it for me. Again, you must have common sense.
There was a monarchy in the 1950's? That's news to me. And if you can't distinguish between "jews being loaded onto railcars" and "ok move along now" then our country is worse off than I thought.
As I said, we have narcissistic hitlers running around creating trouble for no reason other than to create trouble.
If a cop asks you to move along, move along. If a cop asks your name, just give them your name.
You are not the center of the universe.
The people outside the restaurant was an adoring crowd waiting breathlessly for Hillary or some other Dem deity to exit (they cheered when Michael Moore arrived and you probably don't want to know how I greeted his arrival), so they weren't exactly with me from the beginning.
Someguy,
Thank you for the kind words, you'll be hearing from my lawyer.
My story was meant to elicit opinions of whether or not the police were within their rights during this encounter.
i stand by my statement.
regardless of whether u think possession of a dangerous weapon is a victimless crime, it is a misdemeanor in WA state, and i thus have DISCRETION
and yes, *if* i have PC to search, AND i have to go through the trouble of getting a search warrant, i am going to use my DISCRETION to charge the person with possession of the dangerous weapon.
i find nothing wrong with that. sorry if it upsets your tender sensibilities.
officer discretion does not violate the constitution and it is common sensical.
i'll give you another example. the other day i went to a juvenile party (reports of juveniles drinking, botherning the neighbors, etc.)
the kid refused to come to the door. she would have gotten a warning. so, i looked up his parents name in my computer, called her mom and told her what was up (note: she could not technically give me consent to enter iiuc because WA is a all-parties present rule state for consent to enter a residence, but that;'s arguable). regardless, she was #$(#$ pissed, and i let her handle the discipline.
officer discretion. it's what's for breakfast.
and she was especially #$#$( her child (who was supposed to be at a friend's house) was inviting kids over to her unoccupied house to drink and get rowdy. and she thought it was bad that she wouldn't cooperate with police. good parent.
And those type of people are becoming more and more common. Seriously, why anyone would go into law enforcement at all at this point is beyond me.
Let the "entire world revolves around me and my rights" find out the reality of what Judge Learned Hand said: "[Liberty] is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow."
These libertine fools don't realize that their actions would create complete and utter anarchy.
the "innocent" explanation is for self-defense. there are all sorts of weapons you can carry for self-defense
gun (don't need a permit if openly carried in WA state or can carry concealed with permit), most knives, etc.
but certain weapons are NOT legal to carry in public.
btw, the knuckles person was a "she" not a he.
If we lived in an ideal world where the police spent all their time -- or even most of their time -- fighting *real* crime with *real* victims, then I would tend to agree with you.
Unfortunately, my impression is that the average Law Enforcement Officer (notice how they don't even call themselves "Peace Officers" anymore) spends most of his time and effort enforcing dumb laws of dubious constitutionality involving victimless or consensual 'crimes.'
Apologies to our friend 'whit.' but in most cases, Officer Friendly isn't anymore. I wish that weren't the case.
Yes, he's a d-bag. He also has the right to not "let it go at that" and to be a d-bag. Period. End of issue. No self-important tin wearing schmuck need try and address the situation further. Is that so hard to grasp?
i'm not sure whether the brass knuckles law is stupid. there are lots of stupid laws i have to enforce. since this is a discretionary misdemeanor, i don't HAVE to.
otoh, i HAVE to arrest people for violation of a protection order even when the "victim" didn't want the order but the judge ordered it, and even when the "victim" invited the suspect to contact her.
i have to arrest people for felony drug crimes that in many cases i don't think should even be illegal (certainly not mj), but if it's felony weight - i have no discretion.
part of being a cop is accepting that the ignoramuses make the laws, not us :)
i'd like far less laws in general, and far more liberty. fat chance that'll happen
instead of having an impression, why not have an opinion supported by evidence?
go do a ride-along with your local constabulatory. i suggest you would be surprised at what the average cops spends the majority of his time doing
Once again I'm in the unenviable position of being offended by people on both sides. No need to say much more about why/how Lovernios was being a jerk, other folks pretty much covered it.
I also have to agree with the previous poster who said that Whit's attitude of a citizen insisting on his rights as being a "waste of my time" is extremely troubling. I'll honor your rights...as long as you don't exercise them?
But I suggest that the police officer is hardly to blame for the laws he is required to enforce. That he enforces laws that the citizens of the state or community have elected legislators to pass, that is no reflection at all upon the officer carrying out his duty. Enforcing dumb laws does not make the officer presumptively a bad guy out to bully people. It makes him a faithful servant of his community.
The bad guys, from your point of view, it seems to me, are, first, your fellow citizens who elected legislators to pass laws you find objectionable and of dubious constitutionality or, at least, refused to replace the legislators who passed said laws with others who would repeal said laws. Then, second, the legislators who passed said laws and directed the officer to enforce them.
To presumptively assume the officers who enforce laws they did not enact are NOT the good guys because they enforce laws they did not enact seems illogical to me. The solution is not to fight the police officer but to (a) convince your fellow citizens that the laws you find objectionable are, in fact, objectionable so that your fellow citizens will insist those laws be repealed, to (b) lobby lawmakers for the repeal of objectionable laws, or (c) get yourself arrested for refusing a request/demand by an officer and take it to the highest court that will hear your appeal when the initial part of the judicial system is done with you.
There may be other options, I don't know. As I say, I'm not a lawyer but those seem to be the options available. As for myself, I prefer the former two to the latter.
That's funny, I've always had the impression there were plenty of ignoramuses to go around....some in the legislature, some in law enforcement, some on the bench, some in the prosecutor's office, some in the defense bar and a whole bunch of others that are just citizens.
I fully supported the Davis recall as I had voted against Davis the first time he ran for governnor, would had voted for his recall if I still lived in California and have voted for Cheney twice. I still think Lovernios was being a major jerk. I do not think harassing people as they go out to eat is a polite thing to do and he should have listened to the officer and "be nice". Protest their speeches and outside their offices, but after they have been driven out of office do not yell at them as they leave a restaurant. That is Polite Adult Behavior 101.
One of the reasons I have a lot of sympathy for cops is that they spend so much of their time time dealing with jerks who think the world revolves around them.
Remember that I didn't know the man was a police officer, he didn't identify as such and I didn't call him an a**h*le. I was merely (albeit colorfully) reminding him of the value of his opinion that I refrain from further speech. Apparently, that specific epithet roused his ire and his subsequent use of police authority.
My question remains unaddressed: was my speech constitutionaly protected and did the police officer abuse his power?
That would no doubt be an interesting experience, but since most of us probably won't ever get around to actually doing it, how about telling us, based on your personal experience, what approximate percentage of your time do you spend on:
A.) Investigating or preventing serious violent crime (including DUI).
B.) Non-violent crimes with a clearly defined victim (e.g. burglary, fraud, trespassing, etc.)
C.) All the other crap. E.g.: Drug laws, possession of drugs/guns/knives/beer/ or whatever, domestic violence with no obvious victim, underage possession of alcohol/tobacco, statutory rape, broken tail-lights, cracked windshields, prostitution, gambling, etc., ad nauseum.
Just because the officer asks you to look inside? There may or may not be an argument for complying with a request to give the officer your name (I don't like it, but it seems a fairly small sacrifice), but there is no argument for opening the trunk of your car to inspection just because a cop asks (without PC).
I have a used car. How do I know what the previous owner had in the trunk? Maybe he left behind a pot seed or two? Maybe my spare is improperly inflated. Maybe I have a dirty magazine I don't want him to see. The point is he has no legal right to look in the trunk, and to allow it simply because it is too much of a hassle to object is to give the police too much power.
not from conversionalists. but in WA state you need reasonable suspicion to ask for consent to search.
i can TALk to anybody. but in order ot have valid consent, i must have RS.
No. No. No.
However, I suggest that you add prudence to what appears to be your native penchant for boisterous public displays. There are likely to be limits to your fellow citizens' patience with such behavior and, therefore, limited sympathy for your plight when a plainclothes policeman molests you under circumstances that you described above. People tend not to back the play of people whom they see as being obnoxious jerks. That doesn't make them right or you wrong. It just means that if you want to gain public support for misbehavior of police officers, you need to be seen as a decent, upstanding fellow-citizen with respect for others...as they prefer to see themselves. If others see you as one of them, in a situation where it might just as easily be them being molested by the police, they'll support you. If not, they're more likely to ascribe your troubles to your behavior and yawn when you get molested.
Pete, brings up inadvertantly in his effort to pile on to the ad hominems, when does speech become behavior (i.e. hrrassment)?
From my perspective, yes you were clearly within your protected constitutional rights. And, if I were to guess, that's why no one wanted to talk about it. It was pretty clear you were right, but also pretty clear you were being an ass.
Why would you do this? Why would you use your discretion more harshly against someone who demands a warrant than someone who doesn't?
while in patrol capacity (obviously, when working narc's i spent the vast majority of my time with drug stuff...
i'd say "B" takes up maybe 1/3+ of my assigned time - either investigating initial complaint, following up, or writing paperwork
"A" maybe 1/6 or so of my time. a lot more when i was younger and worked night shift exclusively.
"C" maybe 1/3 or so. a lot of "C" is also included with crap that we have to go to because somebody called "area checks for this or that", "verbal DV's" (turn out to be nothing more than an argument but we had to go), and other bull.
"[W]as I a constitutionaly protected jerk?" Yes you were.
"Can a police officer who is not in uniform, not informing me of his status as a police officer lay a hand on me for speaking?" I'm not a lawyer but I would hope not. No.
"Can he fish in my pocket for whatever?" I would hope not. No.
"[D]o only nice, obliging, decent, non-libertines have rights?" No.
There. The rest of my above comment, I stand behind but my initial answers are all askewed by failing to respond to the first of the series of questions. Sorry for the confusion.
Statutory rape is "crap"? A "victimless crime"?
of course. i had a social contact (actually a contact with a potential witness) turn into RS, then pat-frisk, then arrest (for burglary) just last week.
i didn't use consent in that case, but if i had asked for consent PRIOR to RS, it would have been thrown out. WA is also REALLY bad with accepting inevitable discovery doctrine stuff, so you don't want ot go there.
initially, the guy had been seen in the area of the burglarly by the victim and TOLD him that he thought the house down the street (vic's) was being burglarized.
later, when i saw him in the area, potential witness, he started giving conflicting info - claimed he had never talked ot the victim (clearly a lie) and had not been in the area.
THAT's when it became RS.
my RS developed sufficient "frisk factors' to justify pat frisk, whereupon i discovered a bunch of broken glass fragments (ouch) in his pocket from the window he had broken.
then, i arrested him.
then, i found porcelain fragments (used to break glass. google it) matching a porcelain fragment at the scene, cigarettes, consistent iwht a cig butt at the scene, and lot of burg tools.
if i had asked him for consent (not that this juggalo would have given it, i suspect) prior to RS, i would have found all that stuff, but would have been tossed guaranteed.
it's called the wasting our time principle. i'm being honest here.
1) you have PC
2) you ask for consent
3) consent is refused, so you end up getting a warrant
4) you are not going to cut the guy a break for the (insert minor misdemeanor here) that you would otherwise probably give him a break for.
sorry, but that's reality. i have no problem with that.
For the record, I was being a jerk, however I would like to plead extenuating circumstances, to whit: the Democratic Convention creating pandimonium and panic in a conservative Bostonian, a tension filled political climate, the disruption the convention caused in getting around town for the locals, I wasn't feeling well, my dog ate an important presentation that was due that day, my wife had a headache, I missed my train that morning...
I'm really a sweetheart.
I am in general opposed to plain clothes police officers doing work like what you described precisely because citizens do not know that they are police. At the worst end of such situations are the Dialo like case where citizens do not know they are intereacting with armed police officers until it is too late.
examples are LEGION
i'll give you one. (WA is a mandatory arrest state for many DV misdemeanors).
dood is arrested in january for assault, even though wife doesn't want to make a complaint, because there is PC and it's mandatory.
JUDGE , against wife's desires issues no-contact order pending trial.
wife calls up husband and wants to go out to dinner with him
husband says ok
later, they are driving home, and cop pulls them over for expired license plate. runs name. oops. wife has no-contact against husband. that's a MANDATORY arrest. doesn't matter if wife admits she called him and invited him out. it's still illegal. of course you'd take statements to that effect, but you can't NOT arrest.
Thanks!
yea. i assume the prosecutor (and defense attorney if the guy was actually innocent lol,... which he aint) could request DNA off the butt, but with the metric a**load of evidence against him (proximity, conflicting statements, burglar tools (porcelain), glass from the window in the pocket (same side he would have used to reach through to unlock the door) yada yada... it would be overkill.
Iolo, you have not been reading this site long have you/ A good chunk of the commetners are opposed to statuatory rape laws and you should go back and the threads about the FLDS raids a few weeks back for examples. (I am not opposed to these laws for the most part) The basic reasoning is that teenage minors can willingly consent and that there are many examples of societies that have much younger consent laws than we do so our laws are arbitrary. Therefore no victim.
...Sometimes compliance can be it's own reward, as can noncompliance. Keep moving the 'Achtung Minen' signs, Lovernios. You will forever be the source of funny stories told at 0300hrs around coffee pots in dirty stationhouses.
Whit says he refuses to give a break to those who waste his time by insisting on a warrant although he would give that break to those who consented to the search. He does this although he recognizes that his own judgment as to probable cause is not the equivalent of a neutral magistrate's judgment. Whit calls it police discretion based on the wasting time principle, but its effect is to punish the individual for exercising a constitutional right. It happens all the time.
In both these tales, that of Malvolio and of Whit, there is a common element: the exercise by the people of their constitutional rights is an annoying inconvenience to police officers. It must be prevented!
"So, I stop this stupid looking kid walking down that street and order him to remove the box that was stuck under the squad car...Long hair, green teeth and purple bell bottoms"
"Ho, ho, ho", the crowd roars.
"So then, the little hitler says 'No way, man. I got rights'"
"Ha, ha, ha", the place is rolling.
"And then I smack the little punk so hard his stupid John Lennon glasses went flying into the street."
"Hoo, hoo, hoo... You're killin' us"
"And a car runs them over! You should have seen the look on his face! The cryin' little sissy"
"Ha, ha, ha"
[true story]
Exactly. And in response, government officials (not just police) make it very inconvenient on those who do exercise their rights. "Well, if you won't let me search your car, you'll have to sit here for 45 minutes while I diddle around on the computer in my car and make you sweat on the side of the road for everyone in town to see. So I ask again, mind if I look in the trunk?"
i didn't "recognize" that my own judgment as to probable cause is not the equivalent of a neutral magistrate. imo, (IMO), mine's better. but this has nothing to do with opinion. it has to do with the law.
again, i am being totally honest here and i expected the reaction. but again. snotnose kid at juvenile drinking party says "get a warrant" . fine. there is such thing as give and take.
you do have the right to exercise your constitutiobnal right not to consent to search. but in cases where i have PC (and i will tell you if i do, as mentioned), *i* have the constitutional authority to get a search warrant
there are two sides to this. rights vs. authority.
and if you exercise your rights and i exercise my authority, the system worked. but given the execution of the warrant i am going to charge the misdemeanor (like say the brass knuckles) that i might very well give a warning for in other circ's.
in the case of the person i gave a break for the knuckles, (and the suspended license i might add), she later gave me location info for a wanted escapee (escape from community custody DOC warrant) which helped get a dangerous wanted felon off the streets.
give. and take
rubbish.
1) in order for consent to be valid, i must first make a clean break on a traffic stop. iow, tell the person they are free to leave, or else it will almost certainly be thrown out.
2) if the otoh consent is being asked based on PC (as mentioned wit the warning as such), then it SAVES time for the person to consent, and also saves the impound of the vehicle, etc. for the warrant, etc.
3) like i said, at least 1/3 of consent requests are denied, and those people (assuming only RS) go on their merry way lickety split. that is ABSOLUTELY THEIR RIGHT
4) it not your right NOT ot have your car searched IF the cops have PC. in those cases, it is your right to refuse CONSENT, but assuming the warrant is issued, it will be searched. you always have a right not to consent. but we have the authority to search given warrant exception (incident to arrest, etc.) or warrant.
give and take. two sides.
The fact that you tell me you have PC most certainly does not make it so. If you really have PC, get a magistrate to agree. If not, we can all wait. Of course, let's face it, PC is not the hardest standard to meet, especially when it is your word against no one's.
In any case, this give and take policy should be pretty troubling to people since as best I can tell we are "giving" our rights in return for what . . . less inconvenience? All you are "giving" is the mere possibility of leniency (with no guarantees of anything).
sure they do. if the judge refuses to sign the warrant, no search made.
bwahahahaha!
that's incredibly ridiculously false.
given misconduct, a very large %age will make a peep. heck, lots of people peep even when there is no misconduct whatsoever (i say this with 20 yrs on and not a single IIU beef fwiw )
rubbish. if i tell you i have PC, i am more than happy to tell you WHY. and if you KNOW you are guilty of X, and i tell you i have PC as to X and here's why. guess what? you know i'm telling the truth.
and like i said, i DO get a magistrate to sign the warrant. where did i say i didn't?
no, it's called the real world. give and take works great. that's how good informants are developed. that's how we caught that bad guy violent felon escapee.
here's a hint. most people like the police, especially those who are not career criminals. heck, even many career crim's begrudgingly like us, imo.
most people realize that wasting our time is not in their best interest. some people, otoh will lie even when honesty will save them. if i have PC to search your car, and you refuse consent, i am going to get a search warrant (time permitting). that's a given.
the reality is, especially in urban areas, cops are far more interested in catching the real bad guys than some kid with brass knuckles or a few grams of bud. the other reality is that cops have duty and authority that also need to be taken into account. if the cops have PC to search X and you refuse consent with knowledge we are going to get a warrant, then don't blame us if we charge you for the brass knuckles or whatever you know you have (not to mention the stolen property, etc.)
fwiw, i was only asked for consent once when i was snot nosed college kid. and i refused. and that was it. cop said have a nice day. but he didn't have PC.
and again, if the cops have PC to search you do not have a right to prevent your X from being searched. only to refuse consent. that's your choice. but i think it's perfectly acceptable to understand that if the cops are going to wake up judge and spend the XX amount of time to get a warrant, they are not going to cut you a break for your contraband. file under: tuff cookies.
Nazi: "Vere are your papaz?"
In my mind, it is the same thing. ALso, the fact that my rather onerously inflicted tax contributions go to pay for the rude and "brownboot" treatment I receive from some "peace" officers is all the infuriating. I also second the point that if I were some "tree-hugger" or gay rights activist, instead of a guy in a suit, the police would assume less that I will simply go along with their infringment on my rights as an American, and more that I will call the ACLU. The fact is that most bureaucrats assume nice middle class worker bee types will just "go with the flow" and not ask questions. I, for one, am glad that the founders of this country and the countless patriots that have followed them, did not think so much of the "stuff they have to do" that they would subvert their own convictions. right is right and wrong is wrong.
So says, the typical libertine idiot.
this post is about as valid as yer average bigoted post by a racist etc. different target, but same broad brush unsupported by evidence
And 'officer flatfoot' disappeared when patrol cars took over, resulting in a lack of contact with the wider public. Its easier to order folks around when you view them as an ever changing mass instead of individuals you meet repeatedly over your shifts.
On the flip side 90% of law-abiding people have no problems answering a few questions, opening the trunk, etc. The 10% who do make a stink about this are a bunch of crusader types trying to make some point, start a lawsuit, etc. Or put differently the guy who refuse to open the trunk is far more likely to have drugs or a dead body than just be some ACLU type trying to make a point.
Given this, its reasonable for an honest cop to assume that when someone won't just say what my name is, they're more likely than not dealing with a criminal.