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 Post subject: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Fri Apr 04, 2008 10:37 am 
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Types of Encounters
There are three types of encounters when dealing with law enforcement -- here is a brief overview of the encounters and what each one entails:

  • Voluntary Encounter: Any officer may walk up to any person and strike up a conversation, much as any of us would. During this time, the officer may ask for anything; however, you are not required to give anything to the officer or, for that matter, even verbally respond to him.

    With a voluntary encounter, you are free to leave at any time by simply walking away from the officer. Of course, you are more than welcome to engage in conversation, the officer may simply be bored and talk about the weather. If you don't wish to engage in conversation and excuse yourself courteously and make sure, ask:

    "Am I free to leave, officer?"

    If the officer responds, "No." Immediately ask, "Am I being detained?" If the officer responds in the negative, continue to ask if you're free to leave and if you're being detained until he says yes to one or the other.
  • Detainment (aka Terry Stop): Once you are being detained, you've been seized. Detainment occurs when a reasonable person believes that they are no longer free to leave. This is covered under the Delaware Criminal Code, Title 11, § 1902.

    An officer is allowed to detain someone when they have reasonable articulable suspicion -- that is, they can vocalize a reason -- that the person has, is or is about to commit a crime (State v. Miliany-Ojeda, - A.2d - (Del. Super. Ct. Feb. 18, 2004)).

    During this detainment an officer may do a Terry Pat Down or a plain-clothes feel. They may pat over the clothes to feel for weapons or contraband and seize those items for their safety for the duration of the encounter. In accordance with § 1903, the officer must return your weapon when the encounter ends.

    It is also during this point that the officer may demand identification and your business aboard (covered under § 1902). If you are not operating a motor vehicle, you are technically not required to produce physical identification, rather verbally stating your name and address would suffice.

    If, at the end of two hours, the officer's investigation yields no crimes, he must release you (§ 1902(c)).
  • Arrest: The third type of encounter is an arrest. The officer has probable cause to believe you are guilty of a crime and may arrest you. Bear in mind that arrest is define as being restrained or by a large show of armed officers for example. It is not a process or going through booking.

    When arrested you are subject to a search incident to arrest. Essentially, before the officer places you in his cruiser, he's going to do a full search for weapons or contraband. If you were operating or were in control of a vehicle, it may also be towed into a police facility and and inventory search will be conducted in accordance with police procedure.

    If you are arrested, be sure to follow the tips outlines in the vehicular part of this essay.

With regards to rights violations, it's important to remember that, when you're detained, the officer must be able to articulate a reason why he thought you were, are or are about to commit a crime. Remember, open carrying is not a crime. If you are detained for this reason, there is a chance the detention is unlawful.

With all detentions, ask the officer for his business card. If you have a voice recorder, activate it (NOTE: I'm unsure as to the legalities of recording these encounters and will clarify in the future). As stated in the vehicular version of this essay, don't lie to law enforcement, don't resist and be respectful.

If you are concealing, you may wish to inform officer that you are licensed by the state and are currently armed. Remember that he has the right to disarm you for the duration of the detention.

Phrases to Remember
  • Am I free to leave?
  • Am I being detained?
  • I don't consent to any searches.
  • May I have your business card, officer?
  • Officer, I have nothing to say until I confer with my attorney.

Stores and Security Guards
This is also another hot topic of discussion on the forums, so here's a few bits of information:

  • A store (mall, shopping center), though open to the public, is still private property. Agents of the property owners (merchant, store supervisor, agent or employee of the store 18 years of age or older (§ 840)) may ask you to leave the premises for any reason. Do not remain on the property as you will be arrested for trespassing. You may request to speak to the manager.
  • Searches and receipt checks are voluntary. They are store policy. Not law. You may refuse to show your receipt and the management has the right to ban you from the establishment.
  • Stores may detain you if they have probable cause. If you've been paying attention, probable cause is required to arrest for police officers; however, for stores, they must believe you are guilty in order to detain you for law enforcement. This would include the actual concealing of merchandise and the belief that your intent was to deprive the store of the property without payment.
  • If you are detained without probable cause, stores open themselves up to charges of Unlawful Imprisonment (§ 781).

I hope this document is helpful -- any comments or suggestions on additions, corrections or fixes are welcomed and solicited. Below, I've attached a video from the ACLU. I hate to use this as an example because, in most all cases, the people have something to hide; however, definitely watch it through.


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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Sat Aug 23, 2008 9:49 pm 
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A few things to add in light of a recent incident.

You are only required to identify yourself to an officer if you're being officially detained under § 1902.

If an officer asks you for identification and you don't wish to identify yourself, ask him if you're being detained. If he says no, ask if you're free to leave -- repeat this until you get an answer one way or another.

If he tells you you're being detained, you are not required to show a photo ID. The statute provides that you must give "the person's name, address, business abroad and destination." This does not need to be in the form of a government issued ID card. This is up to you if you wish to show your license.

If an officer tells you he's going to disarm you, it would be prudent to say, "I'm not resisting, but I do not consent to the seizure of my property." If you ARE being detained, he does have a right, under law, to disarm you -- at the end of the investigation, he must either arrest you or return your property. However, again, in order to detain you, he must have reasonable articulable suspicion that you have, are or are about to commit a crime. If you are told that you're being detained, you may wish to ask, "For which crime do you suspect me of to warrant a detention?"

To reiterate, explicitly refuse consent for any search or seizure. Ask if you're being detained. Do your best to keep your mouth shut. And, very importantly, always get the business card or badge number and name of the officer.

Now, this is also if the cop comes out of the gates with no professionalism or courtesy. You're, of course, probably going to be more likely to cooperate with a polite and inquisitive officer, but if you have an encounter with the former, you might be better of asserting and, more importantly, protecting your rights as vehemently as possible.

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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Sat Aug 23, 2008 11:10 pm 
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Wynder wrote:
A few things to add in light of a recent incident.

You are only required to identify yourself to an officer if you're being officially detained under § 1902.

If an officer asks you for identification and you don't wish to identify yourself, ask him if you're being detained. If he says no, ask if you're free to leave -- repeat this until you get an answer one way or another.
.

this is redundant, is it not? If I ask an officer if I'm being detained and he says "no", then without further questions, I will wish him a good day and walk off.

edited to add: this is how I will handle it, please feel free to handle your own situation as you see fit.

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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Sun Aug 24, 2008 7:21 am 
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George wrote:
this is redundant, is it not?


It is indeed redundant, but if you every find yourself in a situation where you need to defend your actions or pursue any legal avenues, you can say or write, the officer informed me that I was not being detained and that I was free to leave, but he continued to restrict my freedom of travel.

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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Tue Jan 10, 2012 5:10 pm 
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Wynder wrote:
An officer is allowed to detain someone when they have reasonable articulable suspicion -- that is, they can vocalize a reason -- that the person has, is or is about to commit a crime (State v. Miliany-Ojeda, - A.2d - (Del. Super. Ct. Feb. 18, 2004)).


I've a question about this. Does this mean the officer MUST vocalize a reason or that they must only be able to? If I demand to know whether an officer has RAS are they legally required to respond truthfully?

If so and they respond in the negative I would assume this let's me get back to asking "am i being detained/am i free to leave" until I get a yes to one or the other.

I'm especially curious because I feel that when I was illegally detained I divulged more information than I should have.


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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Tue Jan 10, 2012 6:39 pm 
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dean wrote:
Wynder wrote:
An officer is allowed to detain someone when they have reasonable articulable suspicion -- that is, they can vocalize a reason -- that the person has, is or is about to commit a crime (State v. Miliany-Ojeda, - A.2d - (Del. Super. Ct. Feb. 18, 2004)).


I've a question about this. Does this mean the officer MUST vocalize a reason or that they must only be able to? If I demand to know whether an officer has RAS are they legally required to respond truthfully?

If so and they respond in the negative I would assume this let's me get back to asking "am i being detained/am i free to leave" until I get a yes to one or the other.

I'm especially curious because I feel that when I was illegally detained I divulged more information than I should have.


JMO but I believe Rob/Wynder said the most important thing "keep your mouth shut"
I know it is easier said than done but anytime I've been stopped for anything the more I said the worse it got

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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Tue Jan 10, 2012 7:01 pm 
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If you're being detained you must provide name, address, business abroad, and destination.

If the detainment is illegal I can opt to not provide this information. Sure, I'm likely to be placed under false arrest, etc. but I think if I'm going to assert my rights I may as well go the whole 9 yards.


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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Wed Jan 11, 2012 7:57 am 
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Question: since an LEO can stop someone in possession of alcohol to verify that they are 21 or older why cant someone thats open carrying be stopped to verify that they are 21 or older and not a felon or someone not allowed firearms for mental reasons? I guest what this comes down to is that OC is illegal for some. IE OC is not a legal activity for everyone. IF an LEO thinks some might be breaking the law why cant they investigate? What if and LEO see you breaking into your house because you lost your key. Can he stop you to make sure your are not a burglar? In this case an LEO has no way to no if a law is being broken without investigating. Same with open carrying. Anyone open carrying may be breaking the law.


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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Wed Jan 11, 2012 9:38 am 
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cslade454 wrote:
Question: since an LEO can stop someone in possession of alcohol to verify that they are 21 or older why cant someone thats open carrying be stopped to verify that they are 21 or older and not a felon or someone not allowed firearms for mental reasons? I guest what this comes down to is that OC is illegal for some. IE OC is not a legal activity for everyone. IF an LEO thinks some might be breaking the law why cant they investigate? What if and LEO see you breaking into your house because you lost your key. Can he stop you to make sure your are not a burglar? In this case an LEO has no way to no if a law is being broken without investigating. Same with open carrying. Anyone open carrying may be breaking the law.


Lets look at and break down each of your comparisons one by one...

1) A person breaking into a house gives the view of a crime being committed. The appearance of this is that of an criminal act which you have presented a valid exception to. Police have reasonable articulable suspicion of a criminal act in progress justifying an investigative stop since its reasonable to assume that most homeowners use a key to enter their house while most burglars would use force.

2) An alcoholic beverage being consumed isn't by itself enough for reasonable articulable suspicion of a crime. The appearance of this is that of a lawful act with some restrictions/exceptions (<21). The officer needs to develop RAS that you are <21 which would make the legal act then a crime. To do that an officer would need an articulable reason(s) that the person drinking was underage such as wearing a shirt with a highschool mascot in order to justify the stop.

3) A person OCing by itself isn't enough for RAS that the person carrying is a person prohibited. The appearance of this is that of an always lawful act which some exceptions/restrictions (persons prohibited). RAS that you are a person prohibited needs to be established before a stop can be made.


The officer needs to be able to articulate a specific reason for why he felt you have,are in the process of or about to commit a crime in order to justify stopping you.

You should peruse some case law for a better ideal of how these things are viewed from the courts. Here's a thread you may be interested in that is somewhat similar in regards to carrying (CC in this case) yet still requires the officers to form RAS for their investigatory stop. Read how the officers formed RAS in that case.
viewtopic.php?f=13&t=5847&p=60194#p60194

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 Post subject: Re: Handling Law Enforcement Stops (Pedestrian)
PostPosted: Wed Jan 11, 2012 10:18 am 
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Mr.Skellington wrote:
The officer needs to be able to articulate a specific reason for why he felt you have,are in the process of or about to commit a crime in order to justify stopping you.


That's the ambiguous wording I'm talking about. They need to be able to articulate a reason. Is this the extent of their responsibility? Do they simply have to be able to articulate or or are they required to articulate when requested to do so?


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