Discussion about specific topics of Delaware law. Suggest new topics of discussion in General Discussion forum.
 #60875  by David
 
Mr.Skellington wrote:An officer striking up a friendly conversation is not the same as being detained which is what I believe we were discussing. If you are being detained then the officer must adhere to the 4th amendment benchmark of RAS to justify the stop otherwise its an infringement to your civil liberties. Probable cause requires more justification than RAS and comes into play during an arrest rather than a detainment/temporary investigative seizure.

The reason for asking "am I being detained" and "am I free to go" is detailed in the OP and is anything but silly.
Agreed. My comments were designed to highlight the more typical officer encounter where a MWAG call has been made, the officer(s) show up and begin asking questions. Do you treat this as a casual encounter or a detainment. By court standards, unless you are approached with a show of force, which is an openly broad definition, it is a casual encounter and you are free to participate or not at your discretion. Anything you say or information you provide you do so consensually. Remember, openly carrying a gun is not a crime and is not reasonable suspicion or probable cause. You are well within your rights to say "Officer I'm in a hurry, I'm afraid I don't have time to talk right now", and leave (or try to leave anyway). If stopped, or a show of force is demonstrated, you ask if you are being detained. From there out, the officer is in direct conflict with your 4th Amendment rights if he does not have PC or RS.
 #60876  by bmel17
 
Remember, every situation is different and you'll need to adjust accordingly. When a cop talks to you, it might not always be concerning how they're going to arrest you. I don't feel the "don't talk to the cops" mode or "am I being detained" should be approached off the bat usually, unless the approach of the officer dictates it.
 #60877  by David
 
1. Stop & Talk, No Reasonable Suspicion (RS) - Police may approach a person and ask if the person is willing to voluntarily stop and talk. If Police only have mere suspicion (no reasonable suspicion or probable cause) that a suspect is guilty of a crime, Police may not force the suspect to stop without the suspect’s permission, Terry v. Ohio (1968).

Some factors (relevant guidance) used to determine whether a Police - Citizen encounter was consensual or whether a seizure requiring RS or PC occurred:

Did the Police block or impede the citizen's path?
Did the Police retain the citizen's identification document?
How long did the Police encounter and questioning take place?
How many Police were present?
How many Police weapons were displayed?
Did the Police touch the suspect?
What was the Police language and tone of voice?
What was the citizen's age, intelligence, education?

http://www.fedcoplaw.com/html/searchandseizure_1.html
 #60878  by Mr.Skellington
 
While looking for an answer to my question on detention I found information about arrest.
The source is the same as the video from the Op and I feel this source is a valid one. http://flexyourrights.org/faq
Do police have to tell me why I'm being arrested?

No. Police are not required to tell you what you're being arrested for. Within 72 hours you have right to be brought before a judge or released. When brought before a judge, that's when the charges against you will be read.

Nevertheless, at the time of arrest, police will typically give you a basic explanation for why you're being taken into custody. Remember to keep your mouth shut and ask for a lawyer.
With this in mind it seems unlikely that they would be obligated to disclose what their RAS is during a detainment.
bmel17 wrote:Remember, every situation is different and you'll need to adjust accordingly. When a cop talks to you, it might not always be concerning how they're going to arrest you. I don't feel the "don't talk to the cops" mode or "am I being detained" should be approached off the bat usually, unless the approach of the officer dictates it.
I agree with your first statement. However there are enough cases to show that talking to the police can lead to trouble even when you think your just having a friendly conversation. The friendly conversation could be a fishing expedition from the start or quickly turn into one. For this reason I personally chose to play it safe and not engage in anything more than pleasantries "good morning" "nice day today" etc and continue about my business.
 #60973  by dean
 
I've been looking into this the past few days and from what I can tell they're not required to tell you if they have RAS. The best way to determine if they have RAS is by asking if you're being detained and whether or not you're free to leave. This method is heavily reliant on the police being law-abiding and not detaining you illegally.

That in mind I wouldn't refuse to identify myself unless I was 100% sure I'd done nothing wrong and that the police had no RAS. A better solution would probably be to identify yourself but state that you're doing so under duress.
 #60976  by David
 
Just remember that stating your condition as under duress does not make it any less consensual without demonstrating to the court that a rational personal would feel he had no choice but to comply. As stated above, this is very broadly applied and forces the citizen to decide whether or not to participate in the conversation, often antagonizing the situation. However, you will have a hard time making a 4A claim later. Participate in the fishing expedition if you like, but "papers please" is not permitted.
 #60977  by Mr.Skellington
 
dean wrote: That in mind I wouldn't refuse to identify myself unless I was 100% sure I'd done nothing wrong and that the police had no RAS. A better solution would probably be to identify yourself but state that you're doing so under duress.
§ 1902. Questioning and detaining suspects.

(a) A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination.

(b) Any person so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated.

(c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.

Code 1935, § 5343-B; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1902; 56 Del. Laws, c. 152, § 1; 70 Del. Laws, c. 186, § 1.;
This doesn't mean that you must provide a physical ID card but you must provide your identity when asked.
 #60979  by dean
 
Mr.Skellington wrote:
dean wrote: That in mind I wouldn't refuse to identify myself unless I was 100% sure I'd done nothing wrong and that the police had no RAS. A better solution would probably be to identify yourself but state that you're doing so under duress.
§ 1902. Questioning and detaining suspects.

(a) A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination.

(b) Any person so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated.

(c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.

Code 1935, § 5343-B; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1902; 56 Del. Laws, c. 152, § 1; 70 Del. Laws, c. 186, § 1.;
This doesn't mean that you must provide a physical ID card but you must provide your identity when asked.
I'm aware that you are not required to produce physical identification unless you're operating a motor vehicle. It's determining whether or not the officer has RAS and whether or not your detainment it legal or not that seems to be a gray area.

Since an officer isn't legally required to inform you whether or not they have RAS when detaining you it's up to you to decide whether or not you feel the detainment is legal or not and from there to decide whether or not you will provide your name, address, business abroad, and destination.

e.g., You're out shopping and the police get a MWAG call. The police show up and begin questioning you and you ask if you're free to leave and the police say no. You know that more than likely they don't have any real RAS so that your detainment likely isn't legal. You can either identify yourself or refuse and possibly face arrest.
 #60993  by Lascivious1
 
dean wrote:
Mr.Skellington wrote:
dean wrote: That in mind I wouldn't refuse to identify myself unless I was 100% sure I'd done nothing wrong and that the police had no RAS. A better solution would probably be to identify yourself but state that you're doing so under duress.
§ 1902. Questioning and detaining suspects.

(a) A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination.

(b) Any person so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated.

(c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.

Code 1935, § 5343-B; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1902; 56 Del. Laws, c. 152, § 1; 70 Del. Laws, c. 186, § 1.;
This doesn't mean that you must provide a physical ID card but you must provide your identity when asked.
I'm aware that you are not required to produce physical identification unless you're operating a motor vehicle. It's determining whether or not the officer has RAS and whether or not your detainment it legal or not that seems to be a gray area.

Since an officer isn't legally required to inform you whether or not they have RAS when detaining you it's up to you to decide whether or not you feel the detainment is legal or not and from there to decide whether or not you will provide your name, address, business abroad, and destination.

e.g., You're out shopping and the police get a MWAG call. The police show up and begin questioning you and you ask if you're free to leave and the police say no. You know that more than likely they don't have any real RAS so that your detainment likely isn't legal. You can either identify yourself or refuse and possibly face arrest.
If i havent done anything what could they possibly arrest me for? Because i dont want to tell them who i am?
 #60996  by David
 
MWAG call:

Officer - sir we had a call about a man with a gun, can I ask you a few questions (may I see your ID) (have your name and contact info), we'd just like to make sure ......(whatever excuse they can come up with).

You - I'm sorry officer, I'm in a bit of a hurry, I've got too .....(whatever excuse you can come up with). You turn and start walking away.

You have now forced the officers hand. If no RAS, he has no choice but to let you walk away. If he orders you to stop, you ARE being detained. This however, according to Terry, may or may not be a violation of your 4A rights (see case below) as the officer may have other factors which present RAS without your knowledge.

Walking away from an officers polite request or casual conversation is not grounds for arrest, or even grounds for detainment.

This is 100% a judgement call on your part. Everyone has there own ideas of what intrusions they are willing to accept and what recourse they are willing to take if offended.



In a “concealed carry” state, it is still possible for an officer to have reasonable suspicion that a person is possessing a gun in violation of law. Factors may warrant an officer to conduct a stop and frisk on reasonable suspicion of possession of a weapon, even though it creates a risk of stopping innocent people. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 147750 (D. N.M. December 8, 2011):

"[A] police officer may in appropriate circumstances," be in possession of reasonable suspicion, "and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. at 23.
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