{"id":632,"date":"2012-05-09T22:19:57","date_gmt":"2012-05-10T02:19:57","guid":{"rendered":"http:\/\/monachuslex.com\/?p=632"},"modified":"2012-05-09T22:19:57","modified_gmt":"2012-05-10T02:19:57","slug":"gun-owners-guide-to-the-4th-amendment-seizures","status":"publish","type":"post","link":"https:\/\/monachuslex.com\/?p=632","title":{"rendered":"Gun owners&#8217; guide to the 4th Amendment:  Seizures"},"content":{"rendered":"<p><a href=\"https:\/\/monachuslex.org\/wp-content\/uploads\/2012\/05\/Detained_by_Police.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignright size-full wp-image-786\" title=\"Detained_by_Police\" src=\"https:\/\/monachuslex.org\/wp-content\/uploads\/2012\/05\/Detained_by_Police.jpg\" alt=\"\" width=\"261\" height=\"300\" \/><\/a><\/p>\n<p><em>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated &#8230;<\/em> &#8211; 4th Amendment<\/p>\n<p>One of the most common interactions between law-abiding gun owners and law enforcement occurs when \u00a0a citizen, unfamiliar with the practice, sees someone openly carrying a firearm in a store, or a park, or just walking down the street. \u00a0In many cases, they call the police to report what the media has lead them to believe must be a crime.<\/p>\n<p>This usually results in a law enforcement officer approaching the person who is openly carrying their firearm to &#8220;<em>ask them a few questions.<\/em>&#8221; \u00a0This is what we call a law enforcement &#8220;stop&#8221;. \u00a0But not all stops rise to the level of a seizure subject to 4th Amendment protection.<\/p>\n<p>The modern era of 4th Amendment jurisprudence started in 1968 with the landmark ruling in <em><a href=\"http:\/\/supreme.justia.com\/cases\/federal\/us\/392\/1\/case.html\" target=\"_blank\">Terry v. Ohio<\/a><\/em>. \u00a0Under <em>Terry<\/em>, a seizure occurs &#8220;[o]nly when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.&#8221;<\/p>\n<p>After <em>Terry<\/em>, there are three broad categories of allowable &#8220;stops&#8221;, only one of which is not considered a seizure of the person. \u00a0These are consensual stops, Terry Stops, and detentions which amount to arrest.<\/p>\n<p><strong>Consensual Stops<\/strong><\/p>\n<p>A consensual stop is one in which law enforcement approaches a citizen and initiates a conversation but the citizen is free to leave at any time. \u00a0This is the only of the three allowable stops which is not a seizure of the person for 4th Amendment purposes.<\/p>\n<p>A perfect example of a consensual stop is this encounter between an open carrier and officer Evans of the Blacksburg, Virginia police department. \u00a0The officer asked his questions and, when the open carrier chose not to answer, identified himself and told the open carrier he was free to go. \u00a0The officer was knowledgable and professional. \u00a0I cannot commend him enough.<\/p>\n<p><iframe loading=\"lazy\" src=\"http:\/\/www.youtube.com\/embed\/1n1BHJs5V5c\" frameborder=\"0\" width=\"420\" height=\"315\"><\/iframe><\/p>\n<p>But not all officers are as professional and ethical as Officer Evans. \u00a0While claiming that a suspect is &#8220;<em>free to leave at any time<\/em>&#8220;, they often use interrogative techniques that make it difficult for a reasonable person to know whether they are actually free to leave.<\/p>\n<p>This concept of an objective &#8216;reasonable person&#8217; test first surfaced in the 1980 case of\u00a0<em><a href=\"http:\/\/www.law.cornell.edu\/supct\/html\/historics\/USSC_CR_0446_0544_ZS.html\" target=\"_blank\">U.S. v. Mendenhall<\/a>\u00a0<\/em>where the court articulated the rule that &#8220;a\u00a0person has been &#8216;seized&#8217; within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.&#8221;<\/p>\n<p>An important additional note from Mendenhall was found in the footnotes where the court stated that even if the officer had already decided to detain a person should they decide to leave, this does not factor into the analysis unless the officer has made this known to the person being &#8216;stopped&#8217;. \u00a0If the officer has made this known to the person being stopped then it will trigger the second &#8220;show of authority&#8221; prong from the <em>Terry<\/em> analysis, potentially making the encounter a &#8216;seizure&#8217; for 4th Amendment purposes.<\/p>\n<p>While the holding in <em>Mendenhall<\/em> sounds like a bright-line rule, the courts have continued to allow law enforcement significant latitude in this regard. \u00a0A recent example of this comes to us from Pima Arizona where an officer tells the open carriers that they are free to leave but when they attempt to leave, they are chased down and detained.<\/p>\n<p><em>Take note of the discussion on the video of whether ID is required when stopped by police. \u00a0We will discuss that in a future segment of this column.<\/em><\/p>\n<p><iframe loading=\"lazy\" src=\"http:\/\/www.youtube.com\/embed\/AWwSlcDH9cU\" frameborder=\"0\" width=\"420\" height=\"315\"><\/iframe><\/p>\n<p>After <em>Mendenhall<\/em>, the next important seizure case occurred in 1991 with <em><a href=\"http:\/\/www.law.cornell.edu\/supct\/search\/display.html?terms=bostick&amp;url=\/supct\/html\/89-1717.ZS.html\" target=\"_blank\">Florida v. Bostick<\/a><\/em>. \u00a0<em>Bostick<\/em> involved officers boarding a bus at a bus stop and asking passengers if they would consent to a search of their luggage. \u00a0The twist in <em>Bostick <\/em>was the fact that the encounter occurred in a bus. \u00a0The defendant argued that, because he did not want to leave the bus and be left behind and thus &#8220;did not believe he was free to leave&#8221;, he was &#8216;seized&#8217; without probable cause or even reasonable suspicion.<\/p>\n<p>The court in Bostick stated that the &#8220;free to leave&#8221; language from the rule must be read in context. \u00a0They noted that, when an encounter occurs in an area where the citizen wishes to remain such as a bus, airplance, etc, the rule should be interpreted as whether they &#8220;would feel free to decline the officers&#8217; request or otherwise terminate the encounter.&#8221;<\/p>\n<p>There was also a second important 4th Amendment seizure case decided in 1991. \u00a0In the case of <em><a href=\"http:\/\/supreme.justia.com\/cases\/federal\/us\/499\/621\/\" target=\"_blank\">California v. Hodari<\/a>\u00a0<\/em>the court refined the two prong test from <em>Terry<\/em> which required that, in \u00a0order for a seizure to occur, there must be either physical force or a show of authority. \u00a0Under <em>Hodari<\/em>, a mere show of authority is not sufficient to establish a seizure. \u00a0The suspect must also submit to that show of authority.<\/p>\n<p><strong>Terry Stops<\/strong><\/p>\n<p>A Terry Stop, named aptly enough for the aforementioned case of <em>Terry v. Ohio<\/em>, is a &#8216;seizure&#8217; of the person (there is also a &#8216;search&#8217; component to Terry which I will address in a future article but here we are focused on &#8216;seizures&#8217;). \u00a0According to the court, it is justified when &#8220;swift action based upon on-the-spot observations of the officer on the beat is required.&#8221; \u00a0No warrant is required for a Terry Stop, nor is there a requirement for probable cause such as would be a prerequisite for obtaining a warrant. \u00a0Rather, a Terry Stop requires only &#8220;reasonable suspicion that criminal activity may be afoot.&#8221; \u00a0If the officer wishes to search or &#8220;frisk&#8221; the person he is seizing, they must also have reasonable suspicion that they &#8220;may be armed and presently dangerous&#8221; but this is not required to simply seize the person.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"alignright size-medium wp-image-806\" title=\"RAS\" src=\"https:\/\/monachuslex.org\/wp-content\/uploads\/2012\/05\/RAS-300x187.jpg\" alt=\"\" width=\"300\" height=\"187\" \/>If it isn&#8217;t the same as probable cause then what is reasonable suspicion? \u00a0According to the court in\u00a0 <em><a href=\"http:\/\/scholar.google.com\/scholar_case?case=7068891057291415639&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\" target=\"_blank\">Alabama v. White<\/a><\/em>, reasonable suspicion is\u00a0 \u201cconsiderably less than proof of wrongdoing by a preponderance of\u00a0the evidence.\u201d \u00a0So what does that mean in real life? \u00a0Unfortunately, it is a low-bar indeed. \u00a0Reportedly, a common saying amongst law enforcement circles is that &#8220;Reasonable suspicion is what my nightstick says it is.&#8221;<\/p>\n<p>The requirement of reasonable suspicion from <em>Terry<\/em> is known today as reasonable and articulable suspicion or RAS. \u00a0And if an officer has RAS that\u00a0criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, then the seizure is considered justified at its inception. \u00a0One can easily understand why this broad rule has been repeatedly refined since <em>Terry<\/em>.<\/p>\n<p>In <em><a href=\"http:\/\/supreme.justia.com\/cases\/federal\/us\/528\/119\/case.html\" target=\"_blank\">Illinois v. Wardlow<\/a><\/em>, the court tackled the question of whether running from identified police officers (or marked police cars) in a high crime area gives rise to RAS. \u00a0The court held that it generally does despite a rousing dissent from Justice Stevens in which he noted that minority citizens rightly and reasonably fear police encounters even absent criminal activity. \u00a0The court stated that this is not a per-se rule but depends upon a number of factors beyond simple flight in a high-crime neighborhood. \u00a0These include:<\/p>\n<ul>\n<li>Furtive movements<\/li>\n<li>Time of day<\/li>\n<li>Number of people<\/li>\n<li>Number of police<\/li>\n<li>Whether police were in uniform<\/li>\n<li>Direction and speed of flight<\/li>\n<\/ul>\n<p>In <em><a href=\"http:\/\/scholar.google.com\/scholar_case?case=14806767433216666666&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\" target=\"_blank\">Florida v. Royer<\/a><\/em>, the court held that a Terry Stop, valid at its inception, does not cross the line into a detention that amounts to arrest when there is good reason to move a suspect some distance from the original encounter within the same building or general area.<\/p>\n<p>In <em><a href=\"http:\/\/supreme.justia.com\/cases\/federal\/us\/434\/106\/case.html\" target=\"_blank\">Pennsylvania v. Mimms<\/a><\/em>, the court held that during a valid traffic stop, officers may order a driver out of the vehicle even if the stop is based upon the flimsiest of violations. \u00a0And in <em><a href=\"http:\/\/scholar.google.com\/scholar_case?case=13380728522314550094&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\" target=\"_blank\">Maryland v. Wilson<\/a><\/em>, the court held that the same rule applies to passengers. \u00a0<em><a href=\"http:\/\/scholar.google.com\/scholar_case?case=8605561828750110049&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\" target=\"_blank\">Brendlin v. California<\/a><\/em> clarified that in a traffic stop, both the driver and any passengers are seized and thus all have standing to challenge the constitutionality of the seizure.<\/p>\n<p><strong>Detention That Amounts to Arrest<\/strong><\/p>\n<p>A detention that amounts to an arrest cannot be based upon the lower standard of &#8220;reasonable suspicion.&#8221; \u00a0It must be based upon probable cause that a crime has been committed and that the accused committed that crime. \u00a0And what is probable cause? \u00a0It is &#8220;facts and circumstances sufficient for a reasonable person to believe that crime is more likely than not.&#8221;<\/p>\n<p>The courts have articulated a number of situations where detainment exceeds the &#8220;on the street exigency&#8221; of <em>Terry<\/em> and \u00a0rises to the level of an effective arrest.<\/p>\n<p>In\u00a0\u00a0<em><a href=\"http:\/\/scholar.google.com\/scholar_case?case=4676545067983523514&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\" target=\"_blank\">Hayes v. Florida<\/a>, <\/em>the court held that a\u00a0suspect being taken against their will to the police station for fingerprinting or other investigative purposes, regardless of how brief the detention, would cross the line between a Terry\u00a0Stop and an arrest. \u00a0However, they also noted that fingerprinting at the scene of a Terry Stop is not necessarily violative of the 4th Amendment.<\/p>\n<p>In <a href=\"http:\/\/scholar.google.com\/scholar_case?case=11139179932396474159&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\" target=\"_blank\">United States v. Sharpe<\/a>, the court articulated a two prong test to determine whether a given detention crosses the line between a Terry Stop and an arrest. \u00a0Those prongs are:<\/p>\n<ol>\n<li>Whether the officers&#8217; actions were justified at the inception by reasonable suspicion<\/li>\n<li>Whether the officers&#8217; actions were\u00a0reasonably related in scope to the circumstances which justified the interference in the first place<\/li>\n<\/ol>\n<p>The <em>Sharpe<\/em> court also added a &#8220;bolt-on&#8221; concerning the length of the detention. \u00a0This bolt-on third prong also requires that the officers &#8220;diligently pursue a means of investigation that [is] likely to confirm or dispel their suspicions quickly.&#8221;<\/p>\n<p>If any of these factors are not satisfied then the detention amounts to an arrest and probable cause is required. \u00a0If the office did not have probable cause then the seizure may be challenged.<\/p>\n<p><strong>In Summary<\/strong><\/p>\n<p>If you find yourself in an encounter with law enforcement, you should know that you always have the right to refuse consent to any request. \u00a0If a reasonable person would not feel free to politely decline the officers&#8217; requests and terminate the encounter (as seen in the first video above), then you have been &#8216;seized&#8217; and thus are entitled to 4th Amendment protection. \u00a0The key question is &#8220;Am I free to leave?&#8221; and if the answer is anything other than &#8220;No&#8221; then do so. \u00a0If it is &#8220;No&#8221;, then lawyer up, do not resist other than to state that you do not consent to any search or detainment, and keep the video camera running if you are in a jurisdiction where such recording is legal.<\/p>\n<p><strong>UPDATE<\/strong>: \u00a0The next chapter of the &#8220;Gun Owners Guide to the 4th Amendment&#8221; has been published. \u00a0 \u00a0It covers <a href=\"https:\/\/monachuslex.com\/?p=640\">Stop and Frisk<\/a>.<\/p>\n<p><em><strong>DISCLAIMER<\/strong>: \u00a0Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship. \u00a0For legal advice, you should contact a member of your state&#8217;s Bar association.<\/em><\/p>\n<div><\/div>\n","protected":false},"excerpt":{"rendered":"<p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated &#8230; &#8211; 4th Amendment One of the most common interactions between law-abiding gun owners and law &hellip; <a href=\"https:\/\/monachuslex.com\/?p=632\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[33,71],"tags":[],"class_list":["post-632","post","type-post","status-publish","format-standard","hentry","category-fourth-amendment","category-open-carry"],"_links":{"self":[{"href":"https:\/\/monachuslex.com\/index.php?rest_route=\/wp\/v2\/posts\/632","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/monachuslex.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/monachuslex.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/monachuslex.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/monachuslex.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=632"}],"version-history":[{"count":0,"href":"https:\/\/monachuslex.com\/index.php?rest_route=\/wp\/v2\/posts\/632\/revisions"}],"wp:attachment":[{"href":"https:\/\/monachuslex.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=632"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/monachuslex.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=632"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/monachuslex.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=632"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}