More on police encounters

March 14, 2015

Normally, when a leo approaches a citizen (not a driver of a vehicle), the asking for the ID happens pretty quickly. All of what I’m writing here has to do with Florida, so if you live in another State, this probably doesn’t apply.

When do you have to give him your ID? and what is an ID? and are you required to carry a government ID with you?
1) are you required to carry a government ID? No.
2) Leos want to pull as much information out of you, so they can do a warrants check. About 50% of arrests in FL on a daily basis, involve arresting someone with an outstanding warrant.
3) Do you have to give him this information?

You have the right to remain silent. But giving up your name is a function of whether the leo has a RAS (reasonable articulable suspicion) in order to detain you in the first place. Many of these Stop and ID cases revolve around a couple of statutes. Obstruction without violence and Loitering and prowling. Sometimes trespass or trespass after warning. For instance, a leo approaches a homeless guy sitting near a convenience store. He asks the guy for an ID. The guy tells him to piss off (usually a juvenile, but the homeless guy’s do it too). The leo arrests him for obstruction without violence. But then during the discovery phase, the leo is asked what happened. He says that he asked the gentleman for his ID, he refused to give it up, so he arrested him under 843.02 on the theory that the homeless man has to give the leo his ID during a valid “Terry Stop”. But the court wants to know what the reason was for the approach in the first place. Well, he really didn’t have one, but the guy didn’t give up his ID so I arrested him. Case dismissed.

Or the leo says that he suspected the homeless guy of loitering and or prowling so he went to investigate. Again case dismissed, because leos aren’t supposed to “investigate” a claim of loitering and prowling. or the leo says I was investigating whether he was trespassing and was going to issue a trespass warning and needed his ID. Wrong again, a leo doesn’t need the guy’s ID to issue a trespass warning, so the guy doesn’t have to give it up for that. So, what legal theory does the leo have to request or demand an ID? not much, unless he witnesses a crime in progress or something that causes immediate alarm. However, the reason they always ask for ID, is because 95% of people give it up, so why not ask?


More loitering and prowling

March 14, 2015

MCCLAMMA v. STATE 138 So.3d 578 (2014) 2DCA

This is a great case and the court explains the application of this statute in detail. What is interesting to me is that This charge is definitely NOT a Stop and ID law in Florida. This is totally wrong on Wikipedia. My argument is that Florida doesn’t have a Stop and ID law at all. Because even in 901.151 which is the Stop and Frisk law, there is no penalty for refusing to give your ID to the leos. It is required that you give your “pedigree” information to the leo after an arrest, but during consensual and a lawful detention, you can tell the leo to pound sand.

Loitering and prowling has to be witnessed by the leo. All elements of the “crime” have to be in place before the approach of the leo to the subject. So, if I have this right, the leo witnesses the elements, goes to the subject and arrests him. Then, he asks the subject for his ID and an explanation as to what he was doing so that the explanation can alleviate his alarm. But only after reading the Miranda warning to the detainee. This statute cannot be used for a valid “Terry Stop”. Now, how many times have I watched “COPS” and how many times do they read the guy his rights before talking to him? Like never?

Another thing I never knew before is that if the leo tells you to take your hands out of your pocket, you are now detained. The reasoning is that you aren’t allowed to refuse that order, so you’re now being detained and are not free to leave. So, if you want to know if you are being detained during a police encounter, put your hand in your pocket and see how long it takes the leo to tell you to take it out.

More stuff to link to

April 30, 2013

8th Judicial circuit

hap v state

Pedestrian LEGuide-08

C.W. vs. State

Smallwood vs. State smallwood v state

D.A.W. Vs. State 2nd District htlegal opinion on

legal opinion on wiretapping

Just when you thought DUI roadblocks couldn’t be any more ridiculous…

April 1, 2013

The B.A.T. vans don’t work. Big surprise, huh.

And what happens when maybe 100’s of people are tested inaccurately and plead guilty or are convicted of DUI and the prosecutor knows that the BAT vans don’t work. They plead the 5th, in front of the grand jury.

A real victimless crime because it hasn’t happened yet

February 1, 2013

Loitering/prowling is probably the only criminal statute in FL State law that punishes suspected criminal activity that might happen, rather than all the other statutes that punish criminal activity that did happen. Loitering/prowling is on most state books to prevent crime rather than to investigate a crime that has been committed. Therefore since the state legislatures are leaving it up to the Leo to determine whether he suspects that a crime may be about to occur, this statute is pretty wide open to abuse.

This would be like having a statute that punished drivers for attempted running of a stop sign, giving the Leo the right to pull you over 100 yds in front of the stop sign and cite you because he suspected that you might not stop at the stop sign.

However, just standing around on a street corner or a sidewalk is not enough to be loitering. There has to be an imminent threat to public safety or property. For instance, a gentleman is standing on a sidewalk near an intersection with a sign that says, “Homeless
Vet, God Bless”. He may not be moving to go anywhere and people are rolling down their windows to give him money, but he is not loitering because the definition of loitering includes the element that there has to be an imminent threat to public safety with his presence. Also he isn’t soliciting from a public right of way, because his sign isn’t asking for handouts.

In State v. Ecker, 311 So.2d 104 (1975), the complaint reflects that the defendant was observed in front of an apartment building. When approached for identification, he apparently had no proper or credible identification. The charging complaint shows no circumstances that threaten the public safety, and, therefore a charge of loitering could not be properly established.

Landmark right to record case in New England

January 11, 2013


Iacobucci v. Boulter, 193 F. 3d 14 – Court of Appeals, 1st Circuit 1999 – Go

More on right to record

November 15, 2012

Due Process clause of the 5th Amendment gives you the right to record police encounters:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Click on link to read paper by legal scholars:

due process right to record

Right to Record

September 14, 2012


Worthy cause But can I do it Too..

April 27, 2012

I cut and pasted this story from the North Port Sun:

As Lee County Sheriff’s Sgt. David Drum responded to a crash in 2003, a car pulled out in front of his motorcycle.

With nowhere to go, Drum laid down his motorcycle, sending him tumbling. He suffered two ruptured disks in his lower back, needing a cane and walker to get around after surgeries.

Today, Drum knows the outcome could have been worse. He could have been one of the roughly 150 law enforcement officers killed in the line of duty each year.

With that in mind, Drum took the first steps Wednesday on his 10-day, 390-mile trek by foot from Lee County to Tallahassee, raising money for 177 families and 265 children of officers killed in the line of duty. He calls his efforts the Walk for the Fallen.

Drum has raised about $35,000 for Concerns of Police Survivors, a national nonprofit organization supporting those families. He’s almost to the goal of $39,000, or $100 for each mile.

“Last year was a horrible year for law enforcement officers nationwide,” Drum said. “There are 177 tragic stories, but with the help of the COPS organization, there are 265 stories that are still going to be told.”

As the sun rose Wednesday, about 100 deputies, family members and supporters sent off Drum from the Sheriff’s Office headquarters on Six Mile Cypress Parkway. Each day, Drum expects to run and walk about 40 miles, hoping to reach Tallahassee by May 4. He’ll stay in the state capitol for the Florida State Fraternal Order of Police memorial for fallen officers scheduled on May 6 and 7.

He passed through North Port Thursday morning between 9 and 10 a.m., walking in the right lane of U.S. 41 with his brother, Rob, visiting from Ohio. Behind the two men, Lee County Sheriff’s Office and North Port Police Department cruisers with lights flashing shielded them from passing motorists. One motorist honked and gave Drum a thumbs-up.

“I feel bad we’re tying up traffic,” Drum said Thursday, adding most have been supportive as he walks. On day two of 10, he said he was a little sore from day one.

“I ran about two-thirds of the 39 miles (Wednesday),” said Drum, who planned to make it to Sarasota by Thursday night.

Drum’s run has been about a year and a half in the works, marked by long training days, fundraising events and some health hiccups. He often rose at 3 or 4 a.m. to train, working up toward his first marathon. About a month and a half ago, he came down with pneumonia.

Along the way, Drum has had supporters back him. Several local Chickfil-A franchises and The Sandy Parrot in Fort Myers hosted fundraisers, with the latter donating $3,000. An art auction brought in about $3,000. Snyderman’s Shoes donated running kicks.

“I appreciate the support that’s just been pouring in from everybody recently,” Drum said.

Charlene Orsine heard about Drum’s run and chipped in, driving along Drum’s route Tuesday up to Sarasota, leaving messages in chalk every few miles.

“I just stopped and wrote, ‘Go, Dave, go,’ or, ‘You inspire us.’ Just little messages along the way,” Orsine said.

You can follow Sgt. David Drum’s progress as he runs and walks to Tallahassee for law enforcement officers killed in the line of duty at http://bit  . ly/lvqEJ6, or visit Walk for the Fallen on Facebook.

Obviously, this officer has had a bad shake and he has a worthy cause, trying to raise money for children of officers who have died in the line of duty. But I guess my point is, everyone thinks their cause is the most worthy. And police aren’t going to let us walk in the middle of the road without charging us with multiple offenses if we don’t get off the road.

Everything about 843.02

April 6, 2012

Everything you’ve ever wanted to know about 843.02  : From State Attorney

In light of these differences and existing case law and current statutory provisions, Hiibel cannot be read as authorizing an arrest for resisting when one refuses to identify himself in a Terry stop situation.

so even if the officer has a reasonable articulable suspicion in FL (Terry Stop), arrest cannot be made for 843.02 when one refuses to identify himself.