A police officer may stop anyone at any time to talk with them. That person has the right to either talk to the police or not. It is called a consensual encounter. A refusal to talk to the police, or to provide information, such as ID, cannot then be used to create a "reasonable suspicion" used to then turn the consensual encounter into an involuntary one. Likewise, without suspicion that a crime has been, or is about to be, committed, the police, absent any other probable cause, may not search you.

There may be some rare exceptions (I can't think of any...) that entirely legal activity may generate reasonable suspicion, but the vast majority of the time, it cannot be used as a basis for a involuntary police encounter.

You Tube is replete with many, many examples of police illegally detaining people who are either open carrying or photographing (sometimes both...) from a public place. We should, IMHO, applaud those that are willing to resist these intrusions on our Constitutional rights. And while some of those engaged in this type of "civil disobedience" (I use that term loosely since those activities engaged in are entirely legal...) may be perceived as "trouble makers" or just looking to "provoke" the police, and have a bit of a defiant attitude, I personally tend to give them a pass. Rosa Parks, stood up (or rather sat down) for her rights and was seen by many as just making trouble; Martin Luther was definitely a "trouble maker" and was, coincidentally, well armed during his campaign.  The point being, is that those folks we admire for standing up for their rights are often view from their contemporaries as trouble makers.

I am very far from a "cop hater" but that doesn't mean that I will allow anyone to disregard my rights, nor that I will just assume that police have nothing but good intentions. I don't assume all cops think I am a criminal and will treat me as such, but I know from personal experience that some will. So, like a cop who assumes everyone they stop is potentially armed and dangerous, why is it so denigrated when a citizen takes a similar stance and assumes that all police are, at least initially, a danger to the free expression of their Constitutional rights and exercises those rights during such an interaction? It amazes me that there are some that will just seethe at the mouth when discussing Mayor Bloomberg's attempts to run roughshod over their Second Amendment rights, but will grant him all sorts of leeway over NYPD's use of the "Stop and Frisk" tactics Bloomie uses to trample the Fourth Amendment. Which, by the way, was recently rejected by a Judge. Per the New York Times:

The judge found that for much of the last decade, patrol officers had stopped innocent people without any objective reason to suspect them of wrongdoing. But her criticism went beyond the conduct of police officers.

“I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner,”

She also, again, IMHO, correctly identified why it was so important to address these types of unwarranted stops, and that is the gradual acceptance of the American public to these types of activities that will, much like demonizing gun rights and gun owners do, (and for which many here would rightly agree that we need to "stand up" and resist the "camel's nose under the tent...") create a public who becomes more and more accepting of these encroachments.

Judge Scheindlin’s decision grapples with the legacy of Terry v. Ohio, a 1968 ruling by the Supreme Court, which held that stopping and frisking was constitutionally permissible under certain conditions. But she said that changes to the way the New York Police Department employed the practice were needed to ensure that the street stops were carried out in a manner that “protects the rights and liberties of all New Yorkers, while still providing much needed police protection.”

The judge found that the New York police were too quick to deem as suspicious behavior what was perfectly innocent, in effect watering down the legal standard required for a stop.....

She noted that officers routinely stopped people partly on the basis of “furtive movements,” a category that officers have testified might encompass any of the following: being fidgety, changing directions, walking in a certain way, grabbing at a pocket or looking over one’s shoulder.

“If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity,” Judge Scheindlin wrote.

She found that in their zeal to identify concealed weapons, officers sometimes stopped people on the grounds that the officer observed a bulge in the person’s pocket; often it turned out that the bulge was caused not by a gun but by a wallet.

“The outline of a commonly carried object such as a wallet or cellphone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” she ruled.

But the stops were not the end of the problem, Judge Scheindlin found. After officers stopped people, they often conducted frisks for weapons, or searched the subjects’ pockets for contraband, like drugs, without any legal grounds for doing so.

And to further illustrate a point made earlier in this thread, here is Bloomie's response to the decision:

The mayor said the judge did “not understand how policing works” and had misinterpreted what the Constitution allowed.

I guess that because she was a Judge and not a police officer, Bloomie thinks she doesn't understand how the police should perform their job either....sound familiar?

http://www.nytimes.com/2013/08/13/nyregion/stop-and-frisk-practice-violated-rights-judge-rules.html?pagewanted=1&_r=2&hp

Edited to add link to NY Times story

GZ, Q simply doesn't get it. He keeps using this silly Appeal to Authority argument over and over. He doesn't realize he's basing his entire argument over a logical fallacy.

Like the example I gave earlier - Q's line of thinking works like this: I go to restaurant and order a steak well done. It comes out bloody and with ice crystals on the edges. Since I never went to culinary school or worked in a kitchen, I'm unqualified to declare the steak undercooked. And my opinion is irrelevant. That's how silly his argument is.

I think both sides make valid points, however I think emotion is starting to rule.  People need to calm down and think before they hit reply.

All of the examples being used by KK and Q involve suspicion that someone is a perp after a crime is noted or reported.

This topic involves being stop when no crime is or has been committed. The act of photographing a building is not a crime. It is a Constitutionally protected activity, and can not be seen as suspicious.

Crime reported or not, these guys do the job long enough and a lot of the time their intuition has some basis in good fact.  I'm not saying it's right or wrong, but typically it's very effective.

With regards to legality........very difficult.  Freedom comes with a price as does security.  In some cases people want both, but IMHO they can be quite mutually exclusive.  Everyone likes the freedom until the SHTF, then they want security which has an affect on your indiviual freedoms.

BTW for the record I don't think Q really thinks that guys who don't agree with LEOs cause the destruction of the LEOs moral character.  I think we need to calm down, have a beer, and oggle SpeedTek's daughter.

Crime reported or not, these guys do the job long enough and a lot of the time their intuition has some basis in good fact.  I'm not saying it's right or wrong, but typically it's very effective.

With regards to legality........very difficult.  Freedom comes with a price as does security.  In some cases people want both, but IMHO they can be quite mutually exclusive.  Everyone likes the freedom until the SHTF, then they want security which has an affect on your indiviual freedoms.

I'm not sure anything you've written contributes to the discussion. 

Maybe right, or maybe wrong?  Intuition based on fact?  Freedom and security both have a price and are mutually exclusive?  People shift from freedom to security when the SHTF?

I'm not trying to insult you, but what you said makes almost no sense!   

Maybe there's actually a hidden point that I missed, but my impression is you are waxing philosophically with no real point in mind?

I'm not sure anything you've written contributes to the discussion. 

Maybe right, or maybe wrong?  Intuition based on fact?  Freedom and security both have a price and are mutually exclusive?  People shift from freedom to security when the SHTF?

I'm not trying to insult you, but what you said makes almost no sense!   

Maybe there's actually a hidden point that I missed, but my impression is you are waxing philosophically with no real point in mind?

take the video posted and add the following changes
you work @ this building
no one stops him to ask this guy a questions(why hes walking late @nite armed taking pictures of fed building)
he is a convicted felon with a stolen firearm
he walks to your house
murders your family

would you not have wanted no why nobody even bothered to see what this guy was up to? or would you be fine with"we didnt bother him because we didnt want to impose on his rights"

BTW,now he can be questioned now that he HAS committed a crime

Found this transcript interesting. Goes over Terry Stop from a Federal Law Enforcement perspective.

Some of the more interesting things are that "they" consider any "hard" object a weapon and describe keys and a pen as potential weapons. They also correctly point out that while they can stop you on reasonable suspicion, that stop alone is not justification for a frisk. That is a separate issue and requires additional articulation of a reasonable suspicion that the detained person might be armed.

http://www.fletc.gov/training/programs/legal-division/podcasts/4th-amendment-roadmap-podcasts/4th-amendment-transcripts/terry-stop-frisk.html

take the video posted and add the following changes
you work @ this building
no one stops him to ask this guy a questions(why hes walking late @nite armed taking pictures of fed building)
he is a convicted felon with a stolen firearm
he walks to your house
murders your family

would you not have wanted no why nobody even bothered to see what this guy was up to? or would you be fine with"we didnt bother him because we didnt want to impose on his rights"

BTW,now he can be questioned now that he HAS committed a crime

Take your scenario and add this:

The cops would have STILL let the felon with the illegal gun continue on his way to kill your family after talking to him. 
The cops had no reason to stop him,
he was within his rights to not produce ID (therefore no way for the cops to know he's a felon),
and my emotional response to "why didn't the cops do something" is the exact same thing as "we need more gun control to prevent another Sandy Hook shooting." 

Emotional appeal in place of logic and reasoning ... always the best approach at problem solving?  Sure it is, as long as it's "for the children!".

take the video posted and add the following changes
you work @ this building
no one stops him to ask this guy a questions(why hes walking late @nite armed taking pictures of fed building)
he is a convicted felon with a stolen firearm
he walks to your house
murders your family

would you not have wanted no why nobody even bothered to see what this guy was up to? or would you be fine with"we didnt bother him because we didnt want to impose on his rights"

BTW,now he can be questioned now that he HAS committed a crime

If you are in a State that allows open carry, the mere fact that you open carry cannot be used as a reason to stop you. Same with photography.

With your logic all drivers should be stopped because they could be under the influence, all adults walking with children should be stopped because they could be pedophiles, and all vehicles exiting Kokohead Shooting Complex should be stopped and searched because they could be transporting guns illegally, or have illegal guns.

Those that give up liberty for safety deserve neither.....

If you are in a State that allows open carry, the mere fact that you open carry cannot be used as a reason to stop you. Same with photography.

With your logic all drivers should be stopped because they could be under the influence, all adults walking with children should be stopped because they could be pedophiles, and all vehicles exiting Kokohead Shooting Complex should be stopped and searched because they could be transporting guns illegally, or have illegal guns.

Those that give up liberty for freedom deserve neither.....

I think "security" belongs there somewhere

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Memoirs of the life and writings of Benjamin Franklin (1818).

Mine was based on Franklin's but not a quote....but I did screw even that up....thanks....

I'm not sure anything you've written contributes to the discussion. 

Maybe right, or maybe wrong?  Intuition based on fact?  Freedom and security both have a price and are mutually exclusive?  People shift from freedom to security when the SHTF?

I'm not trying to insult you, but what you said makes almost no sense!   

Maybe there's actually a hidden point that I missed, but my impression is you are waxing philosophically with no real point in mind?

OK let me explain better. 

Freedom to act how you will.  IMHO it is inherently going to end with chaos especially in crowded urban environments.  No laws, no enforcement, etc. will lead to this fact. 

On the opposite end you have security from other things; terroristic acts, robbery, etc.  You get this under control by putting your thumb on the population and reducing their inherent rights.  You restrict free speech, you put in place and enforce curfews, unlawful search & seizure, etc.  You deal with criminals severely and immediately.

Both of these have problems that you get into when you push too far one way or the other.  Many people now hate TSA with a vengence.  I sure do.  I hate that these guys are supposed to man their lines at 04:15AM every morning but due to varying briefings sometimes take longer than that (when GZ has to get a 04:30AM boarding time).  I hate that idiots who stand in line cannot figure out to take off their shoes, watches, belts, computers, etc. ahead of time.  I hate that I a person who flies the same flight for weeks on end has to be searched with the guys who take trips infrequently.  I hate all of that, but I understand it is a price of security.  My personal freedoms are impacted.  Some people think it's too much and some not enough, but it is what it is because we are human and humans will always have that differing point of view.



Intuition based on fact.............if you are a beat guy and have seen things time and time again you will get a feeling about people and situations.  These are rooted in your experience and that basically being fact.  With this respect Q & KK are 100% accurate that we don't (always) know this day to day stuff.  As I have said however it has to be tempered and our voice is still importantly something that has to be heard.


Finally I am disappointed that you are getting angry.  You want people to take your side and if they don't you get frustrated and angry.  I can handle that, it's your right to do so.  However it doesn't make me think of you more highly than Q if this is what you resort to when people don't agree with you.  HiCarry and I have got a bit into it before on the Rail/Mayor issue, but I respect what he has to say no matter if I don't agree with it or if I later find out I'm wrong.  I certainly hope/think he feels the same about me.

Whether it's suspicious to me or not is irrelevant. This a matter of legal jurisprudence/precedent. The courts have ruled that behavior is protected under the 1A. When a LEO interferes w/ someone exercising a constitutional right, they're behaving unlawfully. i.e., they themselves are breaking the laws they're supposed to defend. Just because a LEO thinks a home is suspicious, it doesn't give him the justification to kick in a door and search the premises w/out a warrant or REAL probable cause like screaming from within. I don't think you'd be in favor of police violating the 4th Amendment due solely to suspicion. Yet, that is what you're arguing in favor of - police acting outside their proscribed powers.

It's protected free speech. LEO can have their suspicion. I don't give a damn. It's when it veers from suspicion into a violation of the constitution, and then it's serious.  Also, you're conflating suspicion with probable cause. One is a feeling, the other is a legal justification. You, as a former LEO, should know this. Unless, of course, you're just talking out of your ass.

If you have this attitude, then I presume you're okay w/ LEO stopping open carriers based on fact they're open carriers and nothing else, right? Or, let's say a low rider pulls up alongside your squad car and it's full of black males dressed all gangsta, listening to rap music and they begin to mean mug you (stare you down intently). Is that suspicious behavior? Yeah. Is it probable cause to stop their car and search it? Nope.  You seem to be arguing it is, though.

I can tell you that taking pictures of a facility, at night, while walking with a gun can certainly be considered reasonable suspicion that criminal activity may be afoot.  The facts of your other case are not similar, it wasn't at night, and he didn't have a gun.  Also, the ACLU's settlement only really covers  "any rule that results in the arrest of people for exercising their First Amendment rights."  No one would agree to not stop and inquire what someone is doing.

You may not know it, and may not care, but doing things at night can really expand the "whole picture" to make your normal activity suspicious.

@HiCarry - in a place where open carry is allowed, that alone may not be used for a stop. Add darkness, and reports of you circling or walking around in the same area taking photographs and the facts don't swing in that individuals favor.   


On a similar case in my criminal procedure class, I had a huge debate with one of my professors who is a sitting judge on some cases just similar to this (night time, walking around, taking pictures), but it didn't have a gun.   I think we got about 20-30 pages into it on there and he was right.

I can tell you that taking pictures of a facility, at night, while walking with a gun can certainly be considered reasonable suspicion that criminal activity may be afoot.  The facts of your other case are not similar, it wasn't at night, and he didn't have a gun.  Also, the ACLU's settlement only really covers  "any rule that results in the arrest of people for exercising their First Amendment rights."  No one would agree to not stop and inquire what someone is doing.

Once again, you're conflating suspicion with probable cause. They're two distinct things. The similarities of each case are enough to warrant using the former to defend the latter. He was open carrying which is 100% legal in that state. The police had no right to stop him for that activity, as others have pointed out case law on that matter. The NYC federal ruling did not make any distinction between photographing at night or day - the activity's legality is not contingent on the amount of ambient light present. That behavior is 100% legal and protected under the 1A. Neither activity - open carry or photo taking - rose to the level of any illegality that justifies probable cause, which is what LEO needs in order to do what they did in this video. They had NO right to detain him as they did, not matter how short the duration.

You may not know it, and may not care, but doing things at night can really expand the "whole picture" to make your normal activity suspicious.

The NYC ruling doesn't make a distinction whether it's done at night or day. Your argument is illogical. If the original case had occurred during night and it was ruled the same way, would then try this line of reasoning if the open carry video occurred during day? Of course not. You're trying to assign some arbitrary distinction between when the sun is high in the sky and the moon is out. Astrological conditions are irrelevant to the court's findings.

Furthermore, you're once again conflating suspicion with PC.

Once again, you're conflating suspicion with probable cause. They're two distinct things. The similarities of each case are enough to warrant using the former to defend the latter. He was open carrying which is 100% legal in that state. The police had no right to stop him for that activity, as others have pointed out case law on that matter. The NYC federal ruling did not make any distinction between photographing at night or day - the activity's legality is not contingent on the amount of ambient light present. That behavior is 100% legal and protected under the 1A. Neither activity - open carry or photo taking - rose to the level of any illegality that justifies probable cause, which is what LEO needs in order to do what they did in this video. They had NO right to detain him as they did, not matter how short the duration.

The NYC ruling doesn't make a distinction whether it's done at night or day. Your argument is illogical. If the original case had occurred during night and it was ruled the same way, would then try this line of reasoning if the open carry video occurred during day? Of course not. You're trying to assign some arbitrary distinction between when the sun is high in the sky and the moon is out. Astrological conditions are irrelevant to the court's findings.

Furthermore, you're once again conflating suspicion with PC.

You are demonstrating that you don't really understand the law or what goes into.  You can sit and cite your settlement all day long.  Things are not taken as a part, it's based on the "totality of the circumstances."  SeeUnited States v. Arvizu, 534 US 266 (2002). It's also not based on what you think you know, but what the officer thinks they are seeing because this "process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them." I.d at 274.

Furthermore, they received a "tip"  and if, with a little bit of extra investigatory police work it looks reasonable - they can initiate an investigatory stop.  Alabama v. White, 496 U.S. 325 (1990). 

You don't seem to understand much about the fourth amendment, ask any cop if time of day can play into the suspicion. Walking around in a shopping mall or strip mall during business hours would not be a good cause to stop someone, walking around after hours is.  The area could also be a "high crime activity" or "drug area", which also leads to sufficient cause for the stop. I'll take the time to teach you something new today: time of day has much to do with reasonable suspicion.

Also, good luck arguing that this individual was even seized without an escalation of force either by touching or a lot more verbal escalation.

Lastly, I'm not sure how you get someone is 'conflating' reasonable suspicion with probable cause, while they are not the same thing - one is just higher up on the scale than the other.  It doesn't take much of anything for me to get reasonable suspicion.  Hell, in the Terry case, all the guy did was walk back and forth in front of a building and look around with his buddies.    You would do good to take a few classes in law, and specifically criminal law, to learn how the Fourth Amendment is really working.  There are some attorneys on this board, feel free to figure out who they are and message them.

rose to the level of any illegality that justifies probable cause, which is what LEO needs in order to do what they did in this video.

*Sigh* Again, reasonable suspicion is required... not probable cause.

Hunch -> Suspicion -> Reasonable Suspicion -> Probable Cause -> Preponderance of the Evidence

Chris - I agree that at night there may be an increase in the "suspicion" quotient, but that is, by and large, part of the "mission creep" that has become the new normal and is what I personally am most concerned with. Is it currently accepted as a significant contributing factor that makes the totality of the circumstances swing toward "reasonable suspicion?" The answer is probably yes. Do I think it should be? I don't. The contributing factor, again IMHO, is that the flexibility of the initial ruling in Terry, there to provide an increased measure of safety for the LEO, has been stretched way beyond the intended scope. Let's look at one of the factors in evaluating suspicion under Terry: Furtive movements. Initially they were meant to allow for movement generally associated with an attempt to hide or conceal a weapon. Per the NY ruling, furtive movement now includes glancing behind you or turning around. That, IMHO, is far too broad. And, as the Judge noted, those actions, erroneously attributed to be furtive in nature, are mostly insensitive toward the goal of determining who may be secreting a weapon. When 90% of the stops, based wholly or in part of these misnamed furtive movements, end up producing nothing, it should be clear that using them as such is ineffective and should fall outside what would be considered "furtive" for the purposes of determining reasonable suspicion.

Kevlar - I don't think Chris (Funtimes) is incorrect. From my personal experiences I believe that the time of day is, and to a limited extent, should be, factored into the totality of the circumstances to determine reasonable suspicion. It should be used, but the time of day (or night) should be weighed in light of the circumstances as a whole. Someone walking back and forth in front of a store at noon is most likely a lot different than doing so at midnight after the store is closed. Which, for those don't know, was in large part what Terry v. Ohio was based on.

I personally hope that the NY ruling starts to curb those actions that have now far exceeded what was originally thought reasonable. For example, in the FLETC transcript, it now appears that keys and pens are now "weapons." I believe that would never have been considered a weapon by the court that decided Terry, because the intent was to provide an extra measure of safety for the officer by allowing them to identify guns. Once a weapon is found, you most likely would have grounds to expand your "frisk: to a "search" and now that initial pat down is a defacto full on search. And now that at least some agencies may consider a pen or keys weapons, does that then allow them to expand their frisk to a search? And, once again the slippery slope appears.......

Chris: the gentleman in the video was detained/seized. The officer said so, and in response to the gentleman's question on what grounds he was being detained, the officer replied, "I don't know, you're not telling us anything..."

I'm pretty sure at that point any reasonable person would presume they were being detained. Which, brings up another issue I believe is significant: If, as the law demands, a citizen is allowed to ask if they are "detained" in order to determine if the encounter is consensual or involuntary, any misinformation by the LEO stating that the citizen is detained when in fact there would be no basis to do so, there should be penalties. The citizen must rely on the accurate information provided by the LEO to best make a determination as to his conduct moving forward.

For example: "Am I being detained?" LEO: No, may I see ID. Me: No, good bye have a great day.
"Am I being detained?" LEO: Yes, let me see your ID. ME: Why? If he's going to write me a citation, I provide an ID. If it's an investigatory stop and the state does not mandate providing an ID, I say no. If the state requires providing ID, I give him my ID.

Chris: the gentleman in the video was detained/seized. The officer said so, and in response to the gentleman's question on what grounds he was being detained, the officer replied, "I don't know, you're not telling us anything..."

There are quite a few cases that say it's a necessary element that they use some sort of force.  Say you go to walk away, I grab your arm... touch your shoulder etc.  Or they begin yelling "I SAID STOP!!!!"  If the individual submits voluntarily, then it could be a constructive seizure. It just may not be as clear as saying "yes" or "no" to the am I being detained.   Stance, body language, threats of force, command voice, multiple officers, proximity to the individual (standing up on you etc.) all seem to be tiny elements that they look at. 

After conducting his investigatory stop, the officer should not have said he was being detained.

Funtimes, as Hicarry pointed out, the man asks the officer at ~2:34 into the video "...because you have reasonable suspicion I've committed a crime, right?" This is after the officer confirms he's being detained. The officers response: "Well, I'm concerned as to why you're taking photographs." He NEVER confirms reasonable suspicion as the reason for the stop. The REAL reason is obvious: he's armed and taking photos. Their actions (LEO) are a clear violation Us vs Deberry, 1996 and Delaware vs Prouse, 1979. Also, if reasonable suspicion was never cited, the LEOs asking for ID violates Hiibel v. Sixth Judicial District Court of Nevada.

And please don't take the whole 'you need to be a lawyer route'. That is a classic Appeal to Authority argument.

Edit: Re-watch the video at the ~4:18 mark.  "Listen, the officer told me last time, I don't have to identify shit; I don't have to surrender my weapon [even thought the LEOs did try to disarm him] unless you are stopping me under reasonable suspicion that I've committed a crime, from a Phoenix PD officer's mouth..."

There are quite a few cases that say it's a necessary element that they use some sort of force.  Say you go to walk away, I grab your arm... touch your shoulder etc.  Or they begin yelling "I SAID STOP!!!!"  If the individual submits voluntarily, then it could be a constructive seizure. It just may not be as clear as saying "yes" or "no" to the am I being detained.   Stance, body language, threats of force, command voice, multiple officers, proximity to the individual (standing up on you etc.) all seem to be tiny elements that they look at. 

After conducting his investigatory stop, the officer should not have said he was being detained.

But therein lays the problem. If I ask if I am detained and the officer says no, then I am free to leave unmolested. If "yes" then maybe I can leave but I need to "test" the officer's response by physical actions that could easily be interpreted by the officer as a reason to utilize physical force when said force was otherwise unneeded to effect the desired outcome? Where is the logic in that? That's like having an officer come up behind you while driving and use his lights to try to pull you over but you're not quite sure if he really means to pull you over so you try to leave.

If as you suggest, that a plain "yes" or "no" isn't sufficient, then we must get into a discussion of subjective interpretation of what any particular order, command or request an officer makes of us and if indeed the plain language meaning is sufficient or if there is some sort of hidden meaning.

Of course I'm not questioning the case law you infer, but rather what a difficult position those decisions place a citizen in when trying to interpret police actions when such actions should, for the safety of all, be crystal clear.