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LE Contacts: Rights and Powers

Discussion in 'Carry Issues' started by Sam Spade, Feb 3, 2009.

  1. Sam Spade

    Sam Spade Staff Member Lifetime Member

    May 4, 2003
    Remember to follow the Rules and TOS when replying...


    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 :cool:, 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.
    Last edited by a moderator: Jul 23, 2010
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  2. Sam Spade

    Sam Spade Staff Member Lifetime Member

    May 4, 2003
    The next step up from a consensual encounter is a temporary detention, most commonly called a "Terry stop". No, you're not under arrest. No, you're not free to leave. Traffic stops very closely mirror Terry stuff in terms of LE authority, but they're a big area that I'm posting separately.

    The Terry stop takes its name from Terry v Ohio (392 U.S. 1) a 1968 case. There, an experienced cop saw three guys that just weren't acting right. Based on his training and exerience, he believed that a crime (a robbery) was about to occur, so he detained the three. Based on his training and experience, he thought that Terry might be armed, so he frisked him.

    First, no doubt about it: The guy was seized and his clothing was searched. From Terry:
    But that's not to say that those LE actions must be unreasonable. SCOTUS upheld both the detention (Terry stop) and the frisk (Terry frisk, or pat-down) as seizures and searches that were reasonable under the 4th Amendment. Let's remember here that the 4th doesn't require warrants for all seizures and searches, only the ones that are unreasonable otherwise.

    In this type of situation, the cop has to have "reasonable suspicion", sometimes called "reasonable articuable suspicion" that the individual has, or is, or is about to commit a crime. That's for the stop. He must then have reasonable suspicion that the guy stopped is both armed and dangerous in order to conduct a frisk.

    What's reasonable suspicion? It's something more than a mere hunch. There have to be articuable facts that something's going on. Terry, again:
    All this stuff may turn out to be entirely innocent, that doesn't make it a bad stop or a bad frisk. The cop doesn't have to be right, he just has to be reasonable. He doesn't even need to be mostly right. "Mostly right" is a preponderance of the evidence, 51%, and is a far higher standard of proof. Whether something is reasonable or not is looked at in terms of the totality of the circumstances, and with the officer's training and experience (not yours) in mind. Factors in justifying a frisk can include the time of day, the location, the lighting, the crime under suspicion, the clothes you're wearing, your language, nervousness, body language indicating either fight or flight, whether or not you've been evasive or have lied and so on.

    I mentioned "in terms of the officer's training". You're new to this, and that guy over there just looks hinky. That's a hunch, or mere suspicion. I've done this a while, and I know what a prison tat looks like. I notice that his right pocket is lower than his left. I can articulate that he's paying a lot of attention to individuals, but ignores groups. Even if everything is innocent, I'm the one who has reasonable suspicion to stop this guy, and can articulate why he might be armed.

    What's a frisk? As shown above, it *is* a search (some cops still don't like to say that, 40 years later, but they're just speaking jargon), but one that's limited to outer clothing, areas where the individual can access weapons. The cop can't manipulate things to figure out what they are, and he can't retrieve or hold things that aren't weapons. That said, many, many things can be used as weapons. More Terry:
    Socks then shoes: Order matters. LE has to have a valid Terry stop before they can do a valid Terry frisk. If the seizure of the person is unconstitutional, then the fruits of the seizure are out, too. This doesn't apply if the search is consensual.

    Now as shocking as this sounds, sometimes cops are wrong. If it's a good-faith mistake of fact (NOT law), then the stop is still probably good. So if he misreads your license plate, then stops you because it doesn't match the car you're driving, it's good. No SCOTUS decision on this one, but the 5th, 9th and 10th Circuits, that I know of, say so. For example:
    United States v. Shareef,100 F.3d 1491, 1505 (10th Cir. 1996) and quoted in US v Garcia-Acuna 175 F.3d 1143 (9th Cir. 1999)

    Once you're detained, the officer can hang onto you for a reasonable period to complete his investigation. Federally, there is NO bright-line time limit for this. That's over in US v Sharpe, 470 U.S. 675 (1985):
    If, for instance, you're on the side of a deserted road and the drug dog is 90 minutes away, then you'll sit for 90 minutes, or as long as the stop officer has reasonable suspicion that you've got dope in there. If I stop you because you match the description of a robber and the witness is 50 minutes away, then you'll sit there, unless you make my suspicion evaporate. Now the K9 can't stop at the groomer's and the witness can't grab a bite to eat on the way over for the show-up. That wouldn't be a diligent pursuit of our investigation into you. This is one reason I keep saying that it may indeed be to your advantage to talk to the cops roadside. If you alibi yourself, or if you let me look into your trunk and there's no stolen stereo there, you'll be on your way more quickly. But if you want to wait, that's your right.

    What else can the cops do? IF your state has a law that supports it, they can demand that you identify yourself. No, you can't lie and claim that it's free speech, or somehow else protected. Yes, you can be arrested and booked if you fail to provide your truthful name. That's NOT the same thing as "papers please"; there is no state whatsoever in the US that requires you to carry official papers, and LE can't demand them. We're talking Terry stops here, but if you're driving, yes, you have to have a license. That was decided in Hiibel v 6th Judicial District Court of NV, Humboldt Cty. 542 U.S. 177 (2004)
    Notice something that's going on in almost all of these cases: The Supreme Court is doing a balancing act (they use "balance" repeatedly) between your rights and a compelling government interest. That keeps coming up.
    Last edited: Feb 4, 2009
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  3. Sam Spade

    Sam Spade Staff Member Lifetime Member

    May 4, 2003
    Traffic stops are probably the number one reason for police/citizen encounters. Because of their nature, established over generations, they are NOT a situation where you're automatically considered as "arrested" or "in custody". That means several things. It means that LEOs don't have to read you Miranda before asking how fast you thought you were going. It also means that LE can't search you as they would if you were in custody. Like Terry stops, you're detained.

    Real cops work traffic for two reasons (no, not a tangent). First, they're correcting poor driving behavior and therefore attending to their community caretaker role. Second, they're fishing. Every stop is a reason to interview, a free look into parts of the car, a free check for warrants and so on. (Take the "quota" argument elsewhere, I'm steering somewhere.) So, if a cop decides that you look hinky, he may very well look for a reason to stop you. This is usually, not always, successful. IOW, there are two separate things going on: The reason he stopped you, and the reason he looked at you to start with.

    SCOTUS says that it doesn't matter why he was looking to start with, unless he's being outrageous and doing something like racially profiling. You have no expectation of privacy when you violate traffic law, even when that's just a "pretext" to pull you over, find out who you are and see if there's a roach clip hanging from your keychain. The law is Whren v US 517 US 806 (1996).
    One of the things that LE can NOT do is stop you merely to inspect your license and registration. Yes, driving is a privilege, not a right, and yes, the state gets to regulate the roads. BUT, the cops have to have some reason to believe that there's a violation. The case is Delaware v. Prouse 440 U.S. 648 (1979)
    And by the way, LE can do a Terry stop on you while you're driving, just as they can when you're walking. Waiting for the violation, however small, is just a belt-and-suspenders approach to contacts. If the cops choose to do a Terry stop on your car, the same rules about the totality of the circumstances apply and so on. US v Arvizu 534 U.S. 266 (2002) laid it out:
    Again, with the balancing act.

    Once the stop is made, the officer can do many things for safety reasons. He can move you a short distance off the road into a parking lot. He can move you a short distance to a better lit area. He can order you or your passengers out of the car. Pennsylvania v Mimms 434 U.S. 106 (1977) established that for the driver:
    Maryland v Wilson 519 U.S. 408 (1997) did the same for the passenger:
    Some tin-foilers will point to the progression of cases I'm using and say that it proves a gradual erosion of our liberty. Nonsense. SCOTUS puts out a decison, but they're only supposed to deal with the facts in the case presented. Then the trial courts try to apply it. They frequently goof, and SCOTUS comes back and deals with the tangential issue. The above is an example: The state has a weighty and compelling interest in safety, so they get to reposition the driver for the brief duration of the stop. Some defense lawyer comes along and says that we gotta let his client go---he was the passenger, not the driver, and SCOTUS never said it was cool to move him around. SCOTUS takes the case and says, "What, are you stupid? The goal is the same, the danger is the same (or higher), the intrusion is the same....of course the cop can move the passenger, too". Back to the point of the thread....

    As in my first post, he can do *less* coercive things, like ask for consent to search you or your car. By that I mean that he's asking, not ordering.

    The Terry doctrine gets extended to you in and around your vehicle, too. For one example, if the LEO has reasonable suspicion that there are weapons in the car and he can articulate a danger---the armed and dangerous two-prong again---he can "frisk" your passenger compartment, looking in places where there might be weapons and securing them as reasonably needed. Should he come up with dope or other evidence of a crime while doing this, it's wholly admissible. The base law is Michigan v Long, 463 U.S. 1032 (1983):
    The language mirrors Terry, as it should: a balancing act between your rights to be free from government intrusion and the government's compelling need to not get its agents killed. A limited search, going only where weapons can be. Reasonable suspicion as the level of proof. Suspects dangerous and having access to weapons. The factors of lighting, clothing, attitude, body language and so on are all on point as well.

    So for all of the threads where the CCW guy gets disarmed on traffic, that case is the root authority for it. That you're armed is pretty much a given. Your bumper stickers, holsters or equipment laying around, statements, computer returns and so on can also provide a reasonable belief of that. That there's a danger is almost a given: "Roadside encounters between police and suspects are especially hazardous..." and to that we add the environmental factors, indicators from your person and maybe the "real" reason that you got stopped.

    In a pretty recent case, Brendlin v California, 551 U.S. ___ (2007), SCOTUS ruled that the passenger has been seized for 4th Amendment purposes as well as the driver. This gives him standing to object to the stop. Cops have already been able to pull passengers out and so on. The decision in AZ v Johnson 555 U. S. ____ (2009)confirms that they can do the limited frisks on passengers as well, if the same standards of proof as in Terry are being met. This is really pretty well settled law: AZ v Johnson was 9-0, and Ginsberg (formerly of the ACLU) wrote the decison.

    One thing that has to be brought up: If the .gov has the legal, Constitutional authority to do something, then they have the legal, Constitutional authority to use reasonable force to make it stick. The central case in this is Graham v. Connor, 490 U.S. 386 (1989).
    What this means practically is that the suspect gets to decide the level of force that the officer is going to use. The more he resists, the bigger the response is going to be. It's not a butt-whupping for some silly misdemeanor, it's a whupping because he's resisting a lawful arrest.
    Last edited: Feb 4, 2009
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  4. Sam Spade

    Sam Spade Staff Member Lifetime Member

    May 4, 2003
    "Arrest" is one of those words that get passed around quite a lot. You often end up with people meaning quite different things. You're arrested if you're not free to leave. You're arrested if you're booked. You're arrested if you're _____. It's made a bit worse because "arrest" isnt in the 4th Amendment; "seizure" is.

    An arrest, or being "in custody" is when your freedom to move is restrained in a significant manner. If you're in your car talking to the police, you're probably not in custody. If you're taken to the station in handcuffs without your consent, you're probably in custody. If you're in handcuffs in the back of a police car, you're probably in custody. For this custody to be lawful, it has to be based on probably cause (sorry, I had to) that is, probable cause that you have committed a crime. As an aside, cops can morph a lawful detention into an unlawful arrest when they use too much force, take too long, move you too much and so on.

    So what's probable cause? I still run into to plenty of people who think that it means "more likely than not". This is incorrect. Probable cause is a lower level of proof than the preponderance of the evidence, so PC is somewhere lower than 50%. A general rule tossed out is "if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant." Dumbra v US 268 U.S. 435 (1925). For what we're talking about---CCW contacts with the police---if the cops see you do it, they have probable cause. You should notice that the 4th Amendment makes no distinction between the level of proof needed to search or to seize.

    When you're in custody, what are your rights? Generally, all those Miranda things kick in WRT interrogation. If you're not interrogated, those things don't matter. You still have the freedom to give or deny consent to searches, but the state will have a little more work to do to show that the consent wasn't coerced.

    The police powers are expanded when you move from detained to in custody. They can now conduct a detailed search of your person and the area area within your immediate control for evidence or contraband. Absoultely they can take any weapons that you may have access to.
    Chimel v. California, 395 U.S. 752 (1969):
    New York v Belton, 453 U.S. 454 (1981):
    Now, there are a number of states with offenses that are legally misdemeanors, that is they're arrestable, put him in full custody things, but the cops have the option of issuing summonses and not taking the guy to the pokey. SCOTUS clarified the expectations in Chimel with Knowles v Iowa 525 U.S. 113 (1998) and essentially prohibited searches incident to citation for traffic. (Knowles runs about a page, so I'm not grabbing excerpts.)

    The latest addition to 4th Amendment issues is Arizona v Gant 556 U. S. ____ (2009). Here, the court reined in police powers. Under Belton, above, it has been pretty common practice to search the passenger compartment after an arrest is made. SCOTUS says that was too expansive of a reading. The purpose of the search is to secure evidence that might be destroyed or weapons that might be grabbed. If the guy is in cuffs in the back of your car, just how is he going to grab anything? (In Belton, there were more people than cops, and it was physically impossible to secure them all.) The current read is that the cops can go back into your car to retrieve evidence related to the arrest, but only that. So, if you're going for reckless driving, there isn't going to be a Gant search---no evidence to be found. If you're going for DUI, there probably is going to be a search---highly likely that there are bottles, bar receipts or what-have-you. That's not to say that the cops can't get into your car some other way, such as PC, or something that's in plain view, or so on. Their words (out of order, but it sets up my point better):

    They go on to say that LE was treating Belton too much as an entitlement, and not looking at specific circumstances. Interesting roll-back of government powers, and even Scalia joined in the majority.

    But, still, no warrant is required to search the car. In fact, LE doesn't even need PC that the car contains evidence of your crime:
    So, if you're in a full-custody arrest, the cops get you, your clothing and your containers They no longer get the passenger compartment of your car with all of its containers, unless they have some other justification for a search.
    Last edited: May 12, 2009
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  5. Sam Spade

    Sam Spade Staff Member Lifetime Member

    May 4, 2003
    reserved for a party of four :wavey:
  6. VB14


    Jul 10, 2006
    Upstate SC
    Oh these are good stuff. I'm tagging this. Can't wait to see the rest.

  7. RussP

    RussP Moderator

    Jan 23, 2003
    Central Virginia
    Thanks Sam...
  8. fwiw:

    Yo do know a "arrest" is not neccesary mean ; "in hand cuffs" and it bad to make relationship to "terry stop". Terry stop was about interpetation of search and seizure by the courts and was it ( terry vrs oh ) in-violation of his 4th amendment rights.
  9. 1337-G

    1337-G Armed

    Mar 8, 2006
    The High Desert
    Thanks for putting that up Sam :)
  10. rvrctyrngr

    rvrctyrngr Senior Moment

    Sep 15, 2004
    Gator Nation
    Great info, Sam. Thanks.
  11. WIG19

    WIG19 Light left on

    Oct 27, 2003
    Renegade State
    :wavey: OK, I'll cover the tip!

    Here's the tip:

    Sticky this thread NOW so it is not buried under a thread which is buried under a thread. It will be easier for those who need to find...

    I do like the way you address Hiibel - which does come up in WI periodically being only OC - WI having their own law as many do, but specifying that "stand & identify" would fall under RAS, not a consensual contact. The upshot is that the most likely reason for a contact would be the presence of the gun which, while not causing RAS by itself, does apparently let the officer have Terry concerns I believe.

    Many thanks (again) Sam!


    BTW, did you cover such issues as officer must have their hat on, probably cause, and not following the subject through 7 jurisdictions?

  12. RussP

    RussP Moderator

    Jan 23, 2003
    Central Virginia
    For a while...
    Last edited: Nov 26, 2012
  13. Brown Hawk

    Brown Hawk CLM

    Mar 19, 2005
    All right, Sam. The 4th is 10 hours old! Where is the rest of it?

    I second the sticky motion, and I'm thinking that he'll cover probably cause soon. :supergrin:


    ETA: Dang, Russ, you're moving fast today!
  14. rvrctyrngr

    rvrctyrngr Senior Moment

    Sep 15, 2004
    Gator Nation
    Durnit, WIG, I wanted to ask about the hat! :tongueout:'s a moot point around here, anyway. Our JBTs don't wear covers.
  15. Furyataurus


    Jul 30, 2008
    Helotes TX
  16. LittleRedToyota


    Mar 14, 2006
    great post, and thanks for making it.

    i do have a question, though...

    where do you get that on a federal level?

    i believe some states make it a crime to lie to a police officer, but not all. but i thought you were sticking to the federal level, and i have never heard anyone before claim it is illegal on a federal level to lie to a police officer.
  17. Sam Spade

    Sam Spade Staff Member Lifetime Member

    May 4, 2003
    I may have phrased that poorly. I meant to say that you have no right to lie; it's not some form of free speech. Changed it to reflec that approach. Am I making sense?
  18. txinvestigator


    Jun 8, 2007
    Great posts Sam. Please be sure to include that people should not try to be sidewalk lawyers. Assert your rights, such as not giving consent to search, if you wish, but never interfere or try to resist or stop an officer.

    Rights are protected in court.

    Looking forward to more good reading.
  19. Tailhunter

    Tailhunter Glockman

    Dec 25, 2007
    NC/VA State Line

    Did you say that they can not stop you just to check for license. They do that here all the time. 4 or 5 cop cars have the road blocked and cars backed up on both sides. If you don't want to wait, they send a car after the "runner". What gives?
  20. LittleRedToyota


    Mar 14, 2006
    i see. yes, that makes sense, and i agree.