Since I am licensed to carry a firearm in public, with some restrictions, I have taken upon myself the responsibility of learning both criminal and civil law, the history and real purpose of the police and to the fact that they are limited (as is the government) by the Constitution and the Bill of Rights. As a result of that research, my view of the constitution changed from a document which was the basis of a new government to one that understood the true purpose of that document, which is to protect the citizen from the government by limiting it rather than the government limiting the rights of the citizen.
In regards to protecting citizens from the government, the Fourth Amendment serves as a foundation for police encounters with citizens and with court decisions determining the validity of those encounters.
Amendment IV – The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The following is mainly a copy of an article submitted by J. Lee Weems, a career law enforcement officer and who has gained the respect of licensed carry citizens for his work in providing unbiased information on the role of law enforcement and the limitations of that role. The original article can be found here, The 2-3-4 Rule. Each section is presented without any edits. My comments are in italic and they are based on my research of common police practices, opinions from lawyers and common sense.
Disclaimer: I am not a lawyer, nor do I play one on TV. All of the following information should only be taken as reference and should not to be construed as legal advice or as complete statements of law. I have not covered all of the nuances of police – civilian encounters. You are responsible for any further research and confirmation.
The 2 – 3 – 4 rule outlines the types of police encounters and the level of those encounters.
Two Types of Legal Authority (LA)
- Reasonable Articulable Suspicion (RAS): A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience that criminal activity is afoot. Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
- Probable Cause (PC): A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person. IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.
Three Types of Police-Citizen Encounters
- Verbal/Consensual Encounter (Tier 1): No legal authority is needed to approach a citizen. The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer. An officer may ask for consent to search during a verbal encounter. Case References: Florida v. Bostic, 501 US 429; US v. Baker, 01-16585 (2002)
Blog note: At this time you are not obligated to engage in conversation or answer any questions. If the encounter is friendly you can choose to engage in conversation but if the LEO starts asking investigatory questions or asks for ID, you can respond be saying ‘Am I being detained or am I free to go?’ Do not simply walk away but wait for a response. If one is not given, refuse to say anything except to repeat your question until a response is given. If the LEO states that you are not being detained, then you can walk away.
- Investigatory Detention/Brief Stop (Tier 2): An officer must have RAS to make an investigative stop. The suspect can only be held for a reasonable amount of time. Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer’s initial suspicion has been satisfied and all identification checks have been made. NOTE: An officer may handcuff a suspect during a brief stop only when necessary for the officer’s, the public’s, or the suspect’s safety. The suspect must be advised that they are not under arrest. An officer may frisk for weapons if the officer has RAS that the suspect is armed and presents a threat. Case References: Terry v Ohio, 392 US 1 (1968); United Sates v. Arvizu, 534 U.S. 266 (2002)
Blog Note: If the LEO responds that you are being detained then ask for what reason or what criminal activity you are being detained for. Offer no further information but if asked for ID then it is in your best interest to provide one, otherwise, since this is a detention for investigatory purposes, you could be arrested for interfering with a police officer (obstruction). 24 States have ‘Stop and Identify’ laws where you compelled to show ID if asked, this can only be made during a Tier 2 encounter. This can also be a foundation for a Terry Stop, where a L.E.O. can perform a cursory search. If you question the reason(s) for being detained, then request that a supervisor be called and be present during the questioning. If possible, record the encounter either audibly or by video. There are not any laws that prevents citizens from recording police activities.
- Arrest (Tier 3): An officer must have PC to make an arrest. The officer should conduct a search incident to arrest. The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.
Blog Note: One important fact about being read the Miranda Rights, anything you say after that point can be used against you in a court of law but remember that during a Tier 1 or Tier 2 level encounter, anything that you have said up to the point of being arrested and read your Miranda Rights, can be used to lead to an arrest. The police will use trick questions that seem innocuous on the surface but they have dealt with innocent as well as guilty people before so they know how to lead into a escalated Tier encounter simply on your statements as shown in the video below. I am fully aware more egregious profiling exists outside of ‘Disc Golfing’ but my intent is to show how quickly the police officer leads the person from a simple traffic stop to the threat of a search of his person and vehicle.
During any police encounter, do not raise the stakes by becoming belligerent, loud or physically combative. One of the objectives of the police is control. Whether warranted or not, they will do whatever they can to maintain that control, the more chaotic the situation becomes the more excuse the police will have to respond towards that end. You can be righteous, indignant as well as innocent but that has nothing to do with the application of the law as seen through the eyes of the police. If you maintain calm during a LEO encounter, no matter at what level, you can more effectively raise concerns after an encounter than during one.
Four Legal Ways to Enter a Dwelling
- Consent: Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order). Consent can be given verbally or written. The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
- Warrant/Court Order: An officer can enter a suspect’s home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling. Case Reference: Payton v. New York, 445 U.S. 573 (1980)
- Exigent Circumstances: An officer may enter a dwelling without a warrant when exigent circumstances exist. Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
- Hot Pursuit: The officer must be pursuing the suspect for an arrestable offense. The suspect must know that he or she is being pursued, and the suspect must be in actual flight.
Blog note: As you can see each level of police encounter is based on the level of authority to detain (or not detain) a citizen. A LEO must establish RAS before detaining someone (Tier 2) and must have sufficient PC in order to further search and/or arrest someone (Tier 3).
A phone call is sufficient reason for a LEO to treat an encounter as an investigatory encounter (RAS, Tier 2). E.g. ‘Person is seen robbing a bank’; ‘Two people sitting in a silver Mercedes are committing a lewd act in public’.
Below is a good video of knowing your rights and how to protect them during police encounters.
To summarize, the police do serve an important role for citizens but the Fourth Amendment protects those same citizens from unwarranted and intrusive police encounters and guides judicial court examination of those encounters. We are not subjects of the government or the police; the government as well as the police are subject to the citizens. In order to properly protect your constitutional rights, you need to proactively perform research of laws of the State in which you live in, understand that the intent of the Bill of Rights limits the government and to the fact that the Constitution was written not create a new government but to prevent the same tyranny our founders fought to escape from.
I have provided as much information as I can given the purpose of this blog. The rights of citizens, the development of law and its application on a state and federal level, the history and true purpose of the police have had volumes dedicated to each subject. I have only presented a small glimpse into the basic fundamental application of citizen rights, guaranteed by the Bill of Rights, against the over stepping that the police (and the government) have grown to believe as acceptable only because we have allowed ourselves to think that they are the ultimate guardians and protectors and given them through our own ignorance and sloth, the power over us.
As stated before, I am not a lawyer, all of the information that was presented here is based on my own research and common sense and should not be taken as legal advice or as complete statements of law. I have not covered all of the nuances of police – civilian encounters so I encourage you to use this as a guide to further your own research and be responsible for your own course of action when encountering any law enforcement agencies.