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LE Contacts: Rights and Powers

Posted 05-15-2011 at 17:27 by RussP

LE Contacts: Rights and Powers
Originally Posted by Sam Spade View Post
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What can LE do to you or with you in the normal types of encounters? What's the authority to do that stuff? What are your rights?

My old thread died when the server changed over. Not because I like you guys , but because I'm going through notes in preparation for some stuff, I re-present the basics.

I've limited myself to federal law, and where possible to SCOTUS decisions. These represent the floor of your rights---an individual state may restrict LE further than the US Constitution does, but the individual state cannot allow LE more power than the USC permits. And since we're a widespread board, this stuff will be more applicable than purely state law/decisons. Finally, most of the focus is on public encounters, on account of this being CI and all.

First, let's categorize the encounters. There are three basic types: (1) The purely consensual contact; (2) The investigative detention; (3) The arrest. There are some archaic folk who want to categorize things only in two, saying that you're either free to leave or you're under arrest. Sorry, but SCOTUS doesn't see things that way, and hasn't since 1968. There are three categories.

The consensual contact is exactly that: purely consensual on both sides. Cops can make contact with anyone they want, can talk to people about anything they want, can ask people for/about anything they want. If the cop's in a place where he has the right to be, then the other stuff follows. There's no legal requirement to tell you that you're free to leave, though that's one factor that the courts look at in determining voluntariness on your part. SCOTUS wrote in Ohio V Robinette 519 U.S. 33 (1996): Of course, since this is purely consensual, you're also free to ask for/about anything you want. If you're wondering what your status is, just ask: "Officer, am I free to leave?"

From FL v Bostick, 501 U.S. 429 (1991) (internal citations ommitted)As Bostick says, he can ask you questions, he can ask you for ID, he can ask for your consent to search or be frisked. The key word in all of that is "ask". You can agree to answer or refuse, but you probably can't lie and claim that it's protected/free speech.

Again, this is purely consensual. That means that the officer can't issue any commands in any way. No verbal orders: "Come here". No visual orders, like lights and siren. No coercion, as seen by a reasonable person. I'm not talking just about blatant stuff like pointing guns or blocking your path. For instance, if you give him your ID, you're not free to go while he's still holding onto it--a reasonable person would generally expect that back.

And from US v Drayton 536 U.S. 194 (2002) As long as the cops keep it consensual, they can ask you for permission on 'most anything. Evidence that crops up along the way is completely admissible.

As a side note that doesn't really fit well anywhere, cops get to do a bunch of stuff before they even contact you. You have no reasonable expectation of privacy in your license plate: it belongs to the state, and cops can check it, can do a computer check of the registered owner and so on without any need to get your permission, and without any suspicion whatsoever. The only catch is that they have to be doing it for a LE-related purpose.
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