Common Folk Using Common Sense

I am no lawyer and make absolutely no claims about what I write below, if it is entirely accurate outside of the state of Georgia, and I discourage you to use any of this at your defense trial. That said, here are some important things to remember:

At least three types of police-citizen encounters exist:

• Verbal communications involving no coercion or detention. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. Police officers have the ability to engage you in conversation at any time. However you don’t have to respond. Asking for ID is permissible in a consensual encounter, but requiring it to be given is not. They may ask for permission to search your person, vehicle or possessions, but again you may refuse. The critical component of a consensual encounter is the ability to walk away. Your one and only verbal response in this situation is to ask “Am I free to leave?”
• Brief “stops” or “seizures” that require reasonable suspicion. A second-tier encounter (commonly referred to as a “Terry stop” from Terry v. Ohio, 392 U.S. 1 (1968)) may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without a reasonable articulable suspicion. Reasonable articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. The United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000) clearly rejected the idea that there is a “firearms exception” to the Fourth Amendment, and therefore the presence of a firearm alone does not justify forcible detainment. An arrest is not permitted based on such reasonable articulable suspicion only. A “Terry stop” is simply a brief detention to determine if a crime has been committed. In United States v. Cortez, 449 U.S. 411, 417-18 (1981), it says, “Specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant … detaining officer to have ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” Of great concern is the current practice of officers to “briefly detain” people who open carry, without reasonable articulable suspicion of any crime. Asking “may I leave” will let you know if the officer believes you committed a crime or if they are just fishing for information in an attempt to fabricate a case against you.
• “Arrests” which can only be supported by probable cause. Probable cause refers to the standard by which a police officer has the right to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest. The most common definition is “a reasonable belief that a person has committed a crime” or “reason to believe that an injury had criminal cause” or “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.” In Kaupp v. Texas, 538 U.S. 626 (2003) we read, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ Probable cause is required.” It is generally in your best interests at that moment to exercise your constitutional rights, particularly your right to remain silent.

Fourth Amendment, police

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