Archive for March, 2015

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.