Part One
Again, I want the reader to know that this post is not about bashing the police or the "authorities".
There are good and bad within every group of people. This post is about the bad ones.
The Tyrants. The Power Hungry. The Modern Day Gestapo!
This Post (and site) is about two very simple things:
1) Giving citizens information that they need to confidently exercise their constitutionally protected rights without fear of being "unlawfully" prevented from doing so, and or fear of being prosecuted by those "in authority" for doing so.
2) Educating those in authority" who are ignorant about the laws they are supposed to be enforcing.
BUT BE FOREWARNED, anyone employing the tactics, and or techniques, used by Constitutional auditors, MUST know where their rights end and where the authority's power begins! If You Don't, you can quite easily become "arrested", booked, and found guilty of any number of charges. You may also become a victim of physical violence for asserting your Constitutionally Protected Rights. That is why you should ALWAYS FILM ANY encounter with ANY officer of ANY government entity! This is not a game!
Let's Get Started!
The First Amendment of the U.S. Constitution
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging (reducing the effect of a law, privilege or power) the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances".
In this post we will be dealing with the abridgment of freedom of speech, and or of the freedom of the press, within the context of taking still pictures, and or videos, in "public places".
I'm sure that by now you have seen at least one video, or have read one news story, about someones civil rights (personal rights guaranteed and protected by the U.S. Constitution) being violated by police and or by other public servants.
This infringement of our civil liberties has been going on for decades and is taking place more and more often with each passing year. So much so that there are now thousands, of 1st Amendment Auditors across the nation putting themselves at risk of being unlawfully arrested to preserve these rights. (as well as to educate the public ,and powers that be, in the rules of law governed by the 1st, 4th, and 5th Amendments).
Legal Definitions
The three levels of a police encounter: 1) simple field inquiry, 2) investigative detention, 3) arrest.
When encountered by the police it is as important to be aware of your surroundings as it is to know your constitutional rights.
Often there is confusion among the citizenry about when a citizen can be "legally" questioned by, and or detained by authorities, for questioning. Sometimes the totality of the circumstances of a police encounter must be evaluated to determine whether a person has been subjected to a simple field inquiry, an investigative detention, or an arrest.
Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition
the government for a redress of grievances.
Field Inquiry
Terry v. Ohio 392 U.S. 1 (1968), police may not stop people at random and detain them without a particularized suspicion of criminal activity. However, police are allowed to conduct a field inquiry, which is not seen as an infringement upon constitutional rights, according to State v. Pineiro, 181 N.J. 13, 20 (2004).
Particularized means that the injury must affect the plaintiff in a personal and individual way. Defenders of Wildlife, 504 U.S. at 561 n.1.
According to Florida v. Royer, “Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen ..” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983) "
It is also clear however that a person "need not answer any question put to him or her, that they may decline to listen to the questions at all and may go on his way," and that "his refusal to listen or answer does not, without more, furnish" grounds for his detention.” Id. at 498, 103 S. Ct. at 1324, 75 L. Ed. 2d at 236.
The most important thing to know about a field inquiry is that you don’t have to listen to the police or answer their questions, if you are not being detained. You have the right, by law, to simply walk away!
A simple field inquiry evolves into an investigative stop or detention when a reasonable person would believe they are not free to leave. See State v. Shaw, 213 N.J. 398 (2012), State v. Rodriguez, 172 N.J. 117 (2002), and Florida v. Royer 460 U.S. 491 (1983).
An investigative stop, sometimes called a Terry stop, must be based on a reasonable suspicion of criminal activity. The standard here is less than the probable cause required to effectuate an arrest. Though an investigative stop, or detention, is still considered to be a seizure of the person (otherwise known as kidnapping) because they are not free to leave.
A person has been seized whenever there is "meaningful interference, however brief, with an individual's freedom of movement." United States v. Jacobsen, 466 U.S. 109, 113 & n.5 (1984).
The general rule is that a person is "seized" when the attending circumstances of a police encounter would lead a reasonable person to believe that the freedom to leave was not an option. See Florida v. Royer, 460 U.S. 491 (1983).
Even a short detention, such as a stop for a motor vehicle violation, may qualify as a seizure within the meaning of the Fourth Amendment. See State v. Baum, 199 N.J. 407, 423 (2009); State v. Dickey, 152 N.J. 468, 475 (1998); State v. Chapman, 332 N.J. Super. 452, 461 (App. Div. 2000).
Fourth Amendment
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.
Formal traffic stops where a marked police car with siren lights stops a person is considered a seizure, because you are not free to leave. See Delaware v. Prouse, 440 U.S. 648, 650 (1979), State v. Amelio, 197 N.J. 207 (2008). Also, any passengers in a motor vehicle stop are also considered to be seized. See Brendlin v. California, 551 U.S. 249 (2007); State v.Sloane, 193 N.J. 423 (2008). However, when a marked police car merely follows a person, without activating their siren lights or commanding the person to halt, then it is not a seizure. See Michigan v. Chesternut, 486 U.S. 567 (1988) ; State v. Hughes, 296 N.J. Super. 291 (App. Div.). However, regular encounters with police may escalate into seizures when any factors arise where a reasonable person would feel that they are not free to leave.
For example, Since United States v. Werking, 915 F.2.d 1404 (10th Cir. 1990), United States courts have repeatedly concluded that a detention cannot end before an officer returns a driver’s documentation. See United States v. Gregory, 79 F.3d. 973 (10th Cir. 1996).
It stands to reason that if the police are holding your driver’s license, you are not free to leave. The same would be true, for example, if the police had confiscated your keys while questioning you during a traffic stop. Other factors that would determine if you have been seized include:
whether the officer's questions were conversational in manner,
whether the officer made demands or issued orders,
whether the officer's manner was either overbearing or harassing in nature,
whether outnumbered by police,
whether guns were drawn, or if the police had blocked your path in any way, as in State v. Davis, 104 N.J. 490 (1986).
Whether you have been seized or not is case specific and depends on the circumstances of the encounter.
Investigative Detention
“Investigative detention” defined: An investigative detention is a temporary seizure of a
suspect for the purpose of determining, (1) whether there is probable cause to arrest him, (2)
whether further investigation is necessary, or (3) whether the officer’s suspicions were
unfounded.
Other types of detentions:
Traffic stops: A traffic stop is a car stop based on probable cause or reasonable suspicion
that the driver committed a traffic infraction.
Special needs detentions:
A special needs detention is a temporary seizure of a person for
a non-investigative purpose.
Detentions pending issuance of search warrant:
Officers may detain a suspect pending issuance of a search warrant if, (1) there is probable cause for the warrant; (2) probable cause to arrest the suspect would exist if the sought-after evidence was found during the search; and (3) officers were diligent in seeking and executing the warrant.
Detentions of property: Officers may “detain” (temporarily seize) property for a
reasonable period of time if there is reasonable suspicion to believe it is, or contains,
evidence of a crime; e.g., officers detained a suitcase while seeking a warrant to search it.
Detentions of mail: Mail may be detained without reasonable suspicion if the detention
does not significantly interfere with its timely delivery in the normal course of business.
Detentions for parking violations: If officers have probable cause to cite the driver of a car
for a parking violation, they may detain him for the purpose of writing a citation or
investigating the matter.
When a suspect is “detained”: A suspect is detained if a reasonable person in his position
would have believed he was not free “to decline the officers’ requests or otherwise terminate
the encounter.”
Grounds to detain: Grounds to detain exist as follows:
Reasonable suspicion: Officers may detain a person if they reasonably believe the person
was committing a crime, was about to commit one, or had recently done so.
Also known as RAS - Reasonable, Articulate-able, Suspicion
Arrest
An arrest also qualifies as a seizure, but it is more than that, because an arrest requires the presence of probable cause, which is a higher standard than the reasonable suspicion of criminal activity required to effectuate an investigative detention.
There are other conditions associated with arrests that do not apply with investigative detentions. A clearer definition of an arrest is found in State v. Ferraro, 81 N.J. Super. 213, 217 (Cty. Ct. 1963), where “An arrest, as the term is used in the criminal law, signifies the apprehension or detention of the person of another in order that he may be forthcoming to answer for an alleged or supposed crime.”
Whether an investigatory detention or an arrest, the classification of a seizure has meaningful implications regarding the constitutional rights that must be afforded during such an encounter.
If you are subjected to a seizure, by having your freedom of movement restricted, even though it may not amount to a formal arrest, the element of the seizure of your person will trigger certain constitutional rights, or could possibly make subsequent seizures of physical evidence invalid as fruit of the poisonous tree. The distinction may determine things like whether your Miranda rights should have been read or not, or whether a consent waiver was voluntary, etc.
A seizure has all kinds of implications. Therefore, it is important to know the distinction between an investigative detention and arrest or a simple field inquiry.
The information provided here can help you evaluate the factors surrounding a police encounter and apply the right federal or state laws to your unique circumstances.
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