Police-Citizen Contacts

Apparently, Tone Does Make A Difference

The following video shows a group officers stopping a person who was walking down a sidewalk with a slung rifle. The lead officer indicates that he stopped the individual because he was armed and wanted to check to see if the guy was “just exerting his Constitutional rights.”  The officer also made a general reference to active shooters, but went on to say, “I think I know what is going on here.” During the stop, the lead officer makes several references shooting the individual in the head.  His only articulation of anything criminal was a general reference to active shooters.

This incident is actually being portrayed in some circles as the officer being pro-Second Amendment. I suppose this is because the officer does make several “pro” statements, but, in my opinion, these statements are clearly overshadowed by the repeated references to shooting the individual in the head. I am further baffled by some people with whom I am acquainted who are themselves very pro-carry holding this out as a positive example of how officers should handle such situations.

I do not understand this. The lead officer stated that he stopped the guy solely for being armed, which is clearly contrary to numerous holdings by the United States Supreme Court, and made numerous references to shooting the individual in the head. This leads to the question of whether these same people would be okay with being stopped when legally carrying simply for carrying and then being threatened with being shot in the head. The Reasonable Articulable Suspicion standard for an investigative (Tier 2) stop requires specific and articulable facts when taken together and based upon the officer’s knowledge, training, and experience lead the officer to believe that criminal activity is afoot. Is it reasonable to believe that just because someone is armed that they are a mass shooter?

The officer does have an even tone, and under the circumstances of the contact, his tone could even be described as somewhat genial. The officer then sets forth to lecture the individual concerning his open carrying in such a manner as being ultimately detrimental to Second Amendment rights. With this part, I actually am in large part in agreement; however, this is simply a personal opinion.  I do understand that my personal opinion is not a valid reason to shoot people in the head, or any other part of their anatomy; thus, I can’t say such things to those who root for that bastion of evil inhabiting a football stadium in the suburbs of Dallas.

According to my philosophy professor in college, all Beagles are dogs but not all dogs are Beagles…

Compare the above video to those below where another officer pretty much says the same things except that his statements were made in the middle of a tirade. He was rightfully on the receiving end of copious amounts of outrage.

and

I guess he should have used a calm and even tone, and then everything would have been okay as he calmly states that he could murder a person and make their body disappear.

If you would like to listen to the non-emergency line call to dispatch for the first video, you can do so by clicking here.

50 Years of the McFadden Stop

On The Job

On October 31, 1963, Detective Martin McFadden, age 62 at the time of the incident, took action that would lead to one of the landmark cases in criminal procedure: Terry v. Ohio, 392 U.S. 1 (1968). At the time of the incident, Detective McFadden was a 39 year veteran of the Cleveland Police Department. His career ultimately would span 45 years with 41 of those years as a Detective, and he was noted for his ability to capture thieves and pickpockets especially “Louie the Dip” Finkelstein.

On the day in question, Detective McFadden would spot two individuals (later joined by a third) in front of a store “casing a job, a stick-up”. He had watched the individuals repeatedly walking to a store window, looking inside, and then walking away and conferring. He eventually confronted the individuals and ultimately arrested two of them on weapon’s charges after “frisking” them and finding their pistols.

The individuals were convicted and the case ultimately wound up before the Supreme Court where it was upheld. In short, the Court ruled that the Fourth Amendment reasonableness standard is not violated when a peace officer has a reasonable articulable suspicion (RAS) to conduct an investigatory stop. Two important notes from the ruling was that, first, the Court stated that mere “good faith” of the peace officer is not enough to justify such a stop.  Second, The Court also drew (and continues to draw) a distinction between that of a person being armed and that of a person being “armed and presently dangerous”. In other cases, the Court has ruled that there is not a firearms exception to the Fourth Amendment and thus their presence alone is no different that a person being in possession of a wallet (an actual example from a Supreme Court ruling).

Since the ruling in this case was handed down, investigatory stops have often been termed as “Terry Stops”. I take umbrage with this. Terry was one of the bad guys. Detective McFadden was the one that put forth some excellent police work; so, we should be calling these “McFadden Stops”, but alas, cops are like offensive lineman in that we only get close-up shots and our number called when forget the snap count or get caught holding.

The concept of reasonable articulable suspicion and the facts of the case are more detailed than what I have condensed here. The purpose of this article is to pay respects to Detective McFadden on the 50th anniversary of the incident.

Special thanks go out to retired Commander Bob Cermack of the Cleveland Police Department and the Cleveland Police Museum for providing pictures of Detective McFadden as well as other documents.

2004012021Marty at work
Detective McFadden at work.

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Detective McFadden at his retirement party.

Obituary 1981
Detective McFadden’s obituary.

Recording Police Activity and Identification Issues

Two areas in which my brethren are constantly creating self inflicted trouble is the complete misunderstanding or willful ignorance of the laws concerning the recording of police activity as well as the laws concerning whether or not a citizen must provide  identification.

Note: for a summary on Police-Citizen Contacts see the 2-3-4 Rule.

Before I jump into these two issues, I want to point out that in my experience, video clears more peace officers of false accusations than it catches those committing malevolent acts.  However, the former simply don’t make it to the all knowing interweb.  Often, complaints evaporate once the complainant is invited to come watch the video.

I also want to point out that I understand the divided attention dilemma for peace officers.  It is difficult enough to conduct business and be observant of one’s surroundings.   Having one’s attention divided even more by having another person interjected into the mix doesn’t make things easier, but use their camera as plus for you. Let it catch you doing things the right way instead of doing something that makes you the next big YouTube star.

The Issue of Videoing Police Activity

It is perfectly legal for a citizen to record police activity.  This issue has been addressed recently by two federal appeals court circuits, both circuits upheld the practice as protected by the First Amendment.  The Supreme Court refused to take either of the cases on appeal thus letting stand the rulings of the lower courts.

The first of these cases comes out of Massachusetts (2011) in which police arrested an individual who was videoing them while they arrested a suspect.  His cell phone was also seized.  The police based their charges on a state law concerning wiretapping.  The criminal charges were dismissed, and the individual filed a lawsuit.   The court framed the issue as a First Amendment issue and ruled in the favor of the citizen.  Former Providence, Rhode Island, Police Captain Jack Ryan, who is also an attorney, summarized the case here.

The second case comes out of Illinois (2012) where the state legislature specifically made it a crime to record police activity.  This law was challenged, and the court struck it down on First Amendment grounds.

The courts are clear on this issue.  There is no ambiguity on the matter.  My message to my brethren is also simple: unless a person is materially interfering while videoing, simply leave them alone.  If you are worried about what the video will capture, the issue is with you and not the person taking the video.  Don’t take the bait.

Demanding Identification

There is no law in Georgia that allows a peace officer carte blanche authority to compel a person to provide identification.  Whats-more, there is no law requiring a person to even obtain or possess identification in general.  Requirements for identification are linked to specific activities, and persons not engaged in those activities need not possess identification.  For instance, the requirement for an individual to have a driver’s license only applies if a person is operating a vehicle that requires a license to operate it in the first place and the vehicle is being operated in a location for which the operator must be licensed to do so.

What I mean by no carte blanche is that officers simply cannot demand identity from a person and then arrest that person for failure to comply.   Remember that any seizure of a person requires at minimum reasonable articulable suspicion of a crime (see above link on police-citizen contacts), and using a show of authority to compel identification is a seizure.  If the person (and/or their stuff) is not free to go then the person (and/or their stuff) is seized.  If, for instance, a peace officer approaches a citizen and demands identification while telling the individual they are not free to leave, and then said peace officer takes away the individual’s cell phone, both the person and their property have been seized under the Fourth Amendment.  Needless to say, attempting to delete a video from the phone is not a good idea.

In Conclusion

It is perfectly legal to ask someone for their identification for any or no reason.  However, once the show of authority is made, being able to articulate specific facts when taken together as a whole indicate that a person is involved in criminal activity is a must on the part of the officer.  Merely being “suspicious” is not enough.

The 2-3-4 Rule

Below is the 2-3-4 rule. The “2” is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The “3” is for the three tiers of police-citizen encounters as outlined by the courts, and the “4” list the four ways in which a peace officer may legally enter a dwelling.

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)
  • 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)
  • 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.

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.

Miranda: A Real Fiction

Alphabetically-ordered seating in school generally meant that I had a seat in the back of the room, but that left me free to do as I pleased for the most part; however, the elevated platform used by Mrs. Carol Thomas negated that advantage, and I actually paid attention in her seventh grade civics class. Among the many of her lessons that I remember was the lesson on the Bill of Rights: the first ten amendments to the Constitution enumerating such things as the right to counsel, the right not to be a witness against oneself, the right to due process, and the freedom from unreasonable searches and seizures as well as cruel and unusual punishment. The Bill of Rights was ratified in 1791. They aren’t exactly a secret.

In 1966 the nine wise souls of the Supreme Court of the United States (SCOTUS) voted in a 5-4 decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966), to require peace officers to read what is now commonly known as the Miranda warning to suspects in custody prior to questioning. However, as Messrs Harlan and White pointed out in their dissenting opinions there is no requirement in the text of the Constitution that requires such a warning. The requirement to do so is purely a creation of the court. I repeat, there is nothing in the Constitution that places any requirement whatsoever on the government or its agents to formally advise people of all said rights. The Constitution itself does that, and it did so 175 years prior to the Court’s creation of a real fiction.

Please note that I am by no means arguing against these rights as such a presumption would be false. I’m just pointing out that all the Court did in Miranda was create a procedural step that has spawned four decades worth of court cases. Earlier this year, SCOTUS handed down its decision in Berghuis v. Thompkins (docket 08-1470). In this decision, the Court held that individuals must explicitly invoke their right to silence. Headlines and talking heads have proclaimed this decision as “turning back the clock” on legal protections and as “trimming Miranda rights”. Well, this is just a nit that I have to pick. Miranda didn’t and doesn’t grant or guarantee rights. It’s the United States Constitution that enumerates our rights. Again, the Court with Miranda created nothing but a procedural hoop through which to jump. Even without said warning, the rights are still there and can still be invoked by the individual. If the SCOTUS wiped out Miranda completely, those rights would still exist.

Notes:

-Noted civil rights attorney Thurgood Marshall argued the case on behalf of the government, thus he argued against the Miranda procedure. Marhsall, who later become a SCOTUS Justice, was the lawyer who successfully argued in Brown v. Board of Education, 347 U.S. 483 (1954), against the “separate but equal” policy that allowed racial segregation in schools.

-The defendant in this case, Ernesto Miranda, was convicted of burglary while in high school. He served time on numerous offenses and was later dishonorably discharged from the Army after repeated AWOL and peeping tom offenses for which he also served time in a military stockade. In the case in question, he was arrested, confessed to, was positively identified by the victim, and was later convicted of the rape and robbery of an 18 year old girl (he couldn’t be positively linked to other victims abducted and raped from the same area). A warning very similar to the wording created by Miranda was printed on each page on which he wrote his confession. After SCOTUS overturned his conviction, he was re-tried without his confession being entered into evidence. He was convicted and sentenced to over 20 years in prison but was paroled a few short years later after which he made money by selling autographed Miranda cards. He was killed in a bar fight in 1976.

Miranda is often misunderstood. A suspect must be both in custody and being asked investigatory questions before it is required. Other than that, a peace officer may ask any question they so choose to anyone not in custody. Also, a peace officer with probable cause may make an arrest and never ask any questions of the suspect thus never crossing the threshold of Miranda being applicable.

Traffic Stop Advice

It happened to you.  You were cruising along only to see the dreaded blue lights suddenly appear in your rear view mirror.  Now what do you do?

No, this isn’t a piece on how to get out of a ticket or a lesson in technicalities.  This is simply advice to make the stop go as smoothly as possible.

First, you want to safely move off of the roadway, preferably all the way off of a roadway if a parking lot or similar is available.  If not, try to find a level spot with plenty of visibility for approaching motorist to see you.  There is absolutely nothing wrong with slowing down and turning on your hazard lights to indicate you realize the officer is behind you and that you are not fleeing and then proceeding on to a safe place to stop.  This may include driving to a more public or well lit place.  If you have any doubts as to whether or not the person(s) trying to stop you is a legitimate officer, after slowing down and turning on your hazards, call 911 and tell the communications officer that someone is behind you with blue lights and that you are simply trying to verify that it is a legitimate traffic stop.

There are few things to keep in mind from the above paragraph.  By driving to a safe location to stop, you are making it safer for the officer; so, there should not be any angst for your doing so unless the officer has some reason to think that you are leading them into an ambush or looking for a way to escape.  As for calling 911, remember that cellular calls go to the nearest available tower, which may or may not be in the jurisdiction in which you are located at the time of the call; so, listen closely for the name of the agency that answers the call and provide your location clearly to the operator.

After you have stopped your vehicle, keep your hands visible and don’t be moving around in the vehicle.  Keep in mind that traffic stops are one of the more dangerous things that officers do; so, please don’t make the officer wonder if you are reaching into your console for your driver’s license or a weapon.  If it is dark, turn on your interior lights.  If you have dark tinted windows, roll them down to allow for greater visibility.

I am often asked whether or not a driver should inform an officer if there are firearms in the vehicle.  There is no requirement in Georgia to notify officers of such firearms.  There are states that do; so, research this if you will be driving out of state.  My advice would be to not make an issue of the firearm(s) unless it becomes inevitable it will be an issue. With this in mind, don’t put your insurance card under your pistol that you keep in the glove compartment or have your driver’s license where you would have to reach across your firearm to get to it. If you have a firearm on your person and are instructed to get out of the vehicle that might be a good time to inform the officer of the firearm. If you have to reach into a compartment containing a firearm, tell the officer prior to doing so. Remember that it is perfectly legal for one to transport a firearm within a vehicle without a Georgia Weapons License (GWL); however, if a person is ineligible for a GWL, there are some restrictions as to where a firearm may be carried within a vehicle.

In the above paragraph I mentioned insurance cards. Insurance cards in and of themselves are not considered proof of insurance under Georgia law, but state law still requires that drivers have them in their vehicles. The officer should call in the vehicle’s tag information to the dispatch center where a communications officer will check the tag against a state maintained data base. The data base is the determining factor for proof of insurance. The card must still be carried for accident reporting purposes.

Another common question that I get involves traffic stops that cross jurisdictional lines. This is an easy answer. Under 17-4-23 O.C.G.A, any officer may enforce traffic law anywhere in the state provided that the citation be processed in the jurisdiction in which the violation occurred. So, yes, the officer can stop you there…