First LEO encounter

[MT Yon]

OK I think you handled it very well for your first encounter with the LEOs. However, I do agree with 99% of what rick1962 has had to say. I try to be a good ambassador of the second amendment and try to live by his Patrick Swayze quote "Be Polite." After all that is what they taught us during our riot control training right before we put it to use.

As a disabled Marine and VFW member I do agree that sometimes I have to agree with NavyLT a little bit about having my rights stepped on too many times would make me a tad belligerent, but it serves no purpose in the long run. Having lived to the ripe old age of near 40 (never thought I'd make it this far) I have mellowed out a little and now understand that there are battles you chose and some that chose you. This young man did exactly what the situation called for. The male officer will leave with some respect for him in the future, however, as many have pointed out, the female will think he is a complete jerk the next time she sees him.

Many of the LEOs here in Great Falls know me as a friend and do not bother me. The "Hands up. Nice and High..." may seem strange and offensive to some of you, however, in Bosnia, Haiti and a few other places I did "PeaceKeeping" that was the exact greeting anyone with so much as a big knife received from us. Like that officer I want to go home at night hug my kids and maybe squeeze the wife (depending on her mood) and "Hands Up! --- Are you trying to arrest me???" Is definitely not the way to get home anytime soon. Best case detainment due to over aggressiveness, worst case the over-agressive one that snuck up on him gets trigger happy to defend a brother in blue from a gun toting idiot.

I carry because tenants can be stupid, they are a lot less stupid if you are armed. Ergo, being armed makes for a polite society, I have NEVER had anyone get in my face while my weapon was not concealed. So like the respect goes, I give respect and politeness and 99.99% of the time I receive both in return.

 

[40s-and-wfan]

Navy LT, you mentioned the exact things I was inclined to post. This isn't Haiti or Bosnia or anyplace like that. This is the United States and things happen here a little different than they do in some other third-world country.
All I can say is that I appreciate what you've said here and I couldn't agree more!!

 

[MTDave71]

I am new here, but going through some of these old threads to learn more about OC in MT.

Many who responded to this string almost 2 years ago are not from MT, so I thought I would post this portion of MCA and see what others have to say.

http://data.opi.mt.gov/bills/mca/46/5/46-5-401.htm

IMO, there is a gray area in the code pertaining to "observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense."


Remember that MT is a "stop and identify" state per the code cited above.

OC is legal in MT, but still relatively uncommon. A circumstance of this situation may be that if an LEO sees a person OC, even in a legal manner, that LEO may believe that he/she has observed a person in "circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense." Am I incorrect? Does rarity of OC, even though legal, create particularized suspicion by LEO?

Next comes "If the stop is for a violation under Title 61, unless emergency circumstances exist or the officer has reasonable cause to fear for the officer's own safety or for the public's safety, the officer shall as promptly as possible inform the person of the reason for the stop." Bold added by me.

If I am correct, that the local interpretation of the law may fall on the side of the LEO, even though the OCer is within his/her legal rights, then "(2) A peace officer who has lawfully stopped a person or vehicle under this section may:" comes into play.

"(a) request the person's name and present address and an explanation of the person's actions and, if the person is the driver of a vehicle, demand the person's driver's license and the vehicle's registration and proof of insurance; and
(b) frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present. The officer may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon until the completion of the stop, at which time the officer shall either immediately return the object, if legally possessed, or arrest the person."

I am not trying to start an argument, as a new guy, please understand that. I am, however, trying to understand where some of the "gray areas" lie so that we can all understand the "sticking points" if we are ever in these situations. In other words, I want to actually be within my legal rights in MT if the need arises, obviously. I do not believe some of the advice given earlier was appropriate, given MCA.

I think the circumstances presented regarding LEO in this case could be interpreted within the law, and in fact, the OCer may have broken the law in MT by not providing his name to the LEO.

Thoughts?

Thanks,

Dave

 

[KBCraig]

http://data.opi.mt.gov/bills/mca/46/5/46-5-401.htm

IMO, there is a gray area in the code pertaining to "observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense."


Remember that MT is a "stop and identify" state per the code cited above.

Actually, it's not. The section above merely codifies the standard of Terry v. Ohio. By that standard, every state is "stop and identify" if the listed circumstances apply.

That's far different from actual "stop and identify", which would give police broader authority to stop and demand identification of almost anyone at almost any time.

 

[MTDave71]

Thanks for your opinions. I did some more digging using some of the phrases you both posted, and that has been helpful.

This phrase "suspicion supported by articulable facts suggesting criminal activity was afoot before a policeman could stop a person for investigative purposes." sums it up nicely. I didn't find it until I used some of the phrases you folks did.

Thanks again, I can see the transcript differently now.

Dave

 

[slapmonkay]

46-5-401 still requires the standards set in Terry vs Ohio to be met IMO. Additionally, there is no penalty for violating 46-5-401 (however they may try obstruction?). You always have the 5th Amendment, as soon as contact is made simply inform them that you do not wish to answer any questions without counsel present or simply don't say a word.

 

[LkWd_Don]

46-5-401 still requires the standards set in Terry vs Ohio to be met IMO. Additionally, there is no penalty for violating 46-5-401 (however they may try obstruction?). You always have the 5th Amendment, as soon as contact is made simply inform them that you do not wish to answer any questions without counsel present or simply don't say a word.

I will agree that you have a 5th amendment right to not answer any question that might provide information that could incriminate you, but can you show me where they have a right to compel you to answer any questions to begin with? Outside of a court of law of course -though even in a court of law, you could opt for contempt of court by refusing to answer non-incriminating questions anyway.

Glad to see you made it there safely!

 

[Citizen]

Actually, it's not. The section above merely codifies the standard of Terry v. Ohio. By that standard, every state is "stop and identify" if the listed circumstances apply.

That's far different from actual "stop and identify", which would give police broader authority to stop and demand identification of almost anyone at almost any time.

I have no information that Terry v Ohio turned every state into a stop-and-identify state.

There is no compulsion to identify oneself in Terry.

 

[Citizen]

SNIP I think the circumstances presented regarding LEO in this case could be interpreted within the law, and in fact, the OCer may have broken the law in MT by not providing his name to the LEO.

Which is the "this case" to which you are referring? The OP (original post)?

If so, no. Mere exercise of an enumerated right cannot possibly be reasonably suspicious.

However, in the broader picture, one can rarely know for sure whether the cop possesses reasonable articulable suspicion (RAS) when the encounter is occurring. For all our OPer knew, somebody called 911 and gave an embellished or partially false report against the OPer. Its not what the suspect thinks he knows, its what the cop observed/has been told/etc.

You can learn more about this at these threads:

http://forum.opencarry.org/forums/s...-Your-4th-and-5th-Amendment-Resources-Here!!&

http://forum.opencarry.org/forums/s...-Correctly-Determine-Whether-the-Cop-has-RAS&

 

[KBCraig]

I have no information that Terry v Ohio turned every state into a stop-and-identify state.

There is no compulsion to identify oneself in Terry.

That was my point, although I worded it poorly.

Although it doesn't change the ruling, every state code that I've seen that codifies Terry includes some form of demanding identity. It doesn't compel anyone to answer, merely states the police may "demand" it.

 

[Citizen]

That was my point, although I worded it poorly.

Although it doesn't change the ruling, every state code that I've seen that codifies Terry includes some form of demanding identity. It doesn't compel anyone to answer, merely states the police may "demand" it.

More likely such statutes were a response to Brown vs Texas where the Texas statute that required people to identify themselves to police was shot down for lack of an RAS requirement. States didn't need statutes for Terry. But, all identify statutes that lacked an RAS requirement were pretty much nullified by Brown. That is to say, such statutes were not so much codifying Terry as they were codifying Brown.

 

[40s-and-wfan]

I think the OP did fairly well since this was in fact his first encounter with Law Enforcement, but I do have issues with why he was stopped in the first place. MCA 46-5-401 states: In order to obtain or verify and account of the person's presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle HAS COMMITTED, IS COMMITTING OR IS ABOUT TO COMMIT AN OFFENSE."
According to the criteria in this part of MCA, the officers couldn't justify the momentary detention on those grounds. I was detained under similar circumstances and after the stop was over, I called and complained to the Under-Sheriff because I didn't feel it was justified. He gave me some BS reply that he thought would satisfy me, but we both knew it was a bunch of crap.
I think the OP did alright, but the cops need a little education in regards to what they can and can't do. I don't see them stopping anyone who has a rifle in the rack in the back window of their trucks because they want to ascertain the legality of the owner!

 

[Citizen]

SNIP

"(a) request the person's name and present address and an explanation of the person's actions and, if the person is the driver of a vehicle, demand the person's driver's license and the vehicle's registration and proof of insurance; and
(b) frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present. The officer may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon until the completion of the stop, at which time the officer shall either immediately return the object, if legally possessed, or arrest the person."

I know most of y'all probably already know; so, this post is for new readers who might be misled by the statute.

The 5th Amendment right against self-incrimination means you don't have to give an explanation of your actions. From the non-binding discussion in a US Supreme Court decision:

Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown, 443 U.S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U.S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty, 468 U.S. 420, 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U.S. 486 (1966). In the course of explaining why Terry stops have not been subject to Miranda, the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer, supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop. Hiibel vs 6th Judicial District Court

Readers should note that just a few paragraphs futher along, the Hiibel court ruled that the Nevada statute in question which compelled answering identity questions was constitutional and did not violate the 5A right against self-incrimination. Meaning the court went on in this opinion to carve out an exception to 5A protections for identity.

Also, the cop who arrested Hiibel for refusing to identify himself had a dashcam running. You can actually see the police stop that led to this court decision on YouTube. Key word Hiibel.

http://www.law.cornell.edu/supct/html/03-5554.ZO.html

More about your rights during a police encounter: http://forum.opencarry.org/forums/s...-Your-4th-and-5th-Amendment-Resources-Here!!&



Separately, notice that the statute allows the cop to ask about your actions. This is part of the government's sneaky way of not acknowledging the right against self-incrimination. Just for perspective, a step up in protection would be to allow the cop to ask, but require that nothing stated by the suspect could be used against him to convert so-called reasonable suspicion into probable cause for an arrest or search. Another notch would be to prevent anything said being used in a prosecution. Real government recognition of the right would be like the ancient Hebrews who said that nothing the accused said could be used against him. No quibbling about whether the suspect was Mirandized for the ancient Hebrews.

 

[Citizen]

I am new here, but going through some of these old threads to learn more about OC in MT.

Many who responded to this string almost 2 years ago are not from MT, so I thought I would post this portion of MCA and see what others have to say.

http://data.opi.mt.gov/bills/mca/46/5/46-5-401.htm

IMO, there is a gray area in the code pertaining to "observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense."


Remember that MT is a "stop and identify" state per the code cited above.

Hmmmm. I wonder if it really is a stop-and-identify statute. I noticed something while composing the preceding post.

Here is the text of the statute straight from the state gov website, red ink by Citizen:

46-5-401. Investigative stop and frisk. (1) In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. If the stop is for a violation under Title 61, unless emergency circumstances exist or the officer has reasonable cause to fear for the officer's own safety or for the public's safety, the officer shall as promptly as possible inform the person of the reason for the stop.
(2) A peace officer who has lawfully stopped a person or vehicle under this section may:
(a) request the person's name and present address and an explanation of the person's actions and, if the person is the driver of a vehicle, demand the person's driver's license and the vehicle's registration and proof of insurance; and
(b) frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present. The officer may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon until the completion of the stop, at which time the officer shall either immediately return the object, if legally possessed, or arrest the person.
(3) A peace officer acting under subsection (2) while the peace officer is not in uniform shall inform the person as promptly as possible under the circumstances and in any case before questioning the person that the officer is a peace officer.


1. The use of the word request in the first clause instead of demand makes me think the first clause might be entirely refuseable. This statute is within the section on search and seizure; these sections deal with what police are and are not allowed to do, rather than a listing of criminal behaviours. Also, notice the statute allows the cop to request an explanation of a person's actions (constitutional), rather than demand an explanation (unconstitutional). Meaning, it would be unconstitional for the cop to compel answering questions about activities during a stop. The same verb, request, applies to both clauses: identity and explanation of actions.

2. I see no penalty for refusing identity in the statute itself.


So, before drawing a conclusion that refusing to identify oneself is without legal penalty, a few other questions would need to be answered:

Are there Montana court opinions that say refusal to identify oneself is obstruction of justice/police?

Is there a penalty stated in some other statute? Say, at the very beginning of the chapter?

 

[KBCraig]

More likely such statutes were a response to Brown vs Texas where the Texas statute that required people to identify themselves to police was shot down for lack of an RAS requirement. States didn't need statutes for Terry. But, all identify statutes that lacked an RAS requirement were pretty much nullified by Brown. That is to say, such statutes were not so much codifying Terry as they were codifying Brown.

I have't read Brown in detail, just snippets. Does it also include "reasonable articulable suspicion", and "has committed, is committing, or is about to commit a crime"?

I based my link to Terry because those famous Terry phrases, or paraphrases of them, appear in most state laws I've read.

 

[Citizen]

From Brown v Texas:

The Fourth Amendment, of course,

applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized' that person," id. at 16, and the Fourth Amendment requires that the seizure be "reasonable."​

United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)...

The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.[SUP] [n3][/SUP] Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is reversed.

http://forum.opencarry.org/forums/showthread.php?55914-Get-Your-4th-and-5th-Amendment-Resources-Here!!&

 

[F350]

To each his own. You handled your encounter fine. Its not like all of us have gobs of experience being stopped, investigated and sometimes detained by the police. You don't even need to ask about RAS in that situation in my opinion. Maybe if they demanded you to identify yourself under threat of unlawful actions on their part, but it seems that their queries were on the consensual contact level. Even the officer ordering you to put your hands in the air is going to be looked upon as legal seeing that he is approaching you and you are armed. In my opinion, to do so is more of a precaution for your safety than anything else.

Personally, I hate to answer questions about my travel and I get a bit offended if stopped in my vehicle and an officer asks questions such as where I work which happened in two of the past three times I've been pulled over. However, there isn't some template out there to go by for everyone in every situation. They are all unique and its up to you to decide how you want to handle your personal situation. The important thing is that your stop went smoothly, was uneventful and the place where you chose to stand your ground, not fully identifying yourself, wasn't breached. No escalation occured.

In my opinion you did fine.

Sorry but at " put your hands up. All the way up high" there IS NO consensual aspect to the stop.

 

[F350]

I see the slippery slope with our freedoms that all of you speak of, I just disagree. I have seen in my time going from police searching your car without a warrant, to just in the past 10 years 3 times in 3 different states me telling LE no, not without a warrant, and them not searching, I remember in the 80s` watching cops kicking a BG that was handcuffed, and when I spoke up I was told if I didn't leave the same thing would happen to me, those kind of cops go to jail today. Ive seen state after state get CC, Ive seen stand your ground become the law in many states, there was a time not long ago that if you shot a BG even in your house, you would probably go to jail. Ive seen " Freedom to Carry " pass in 2 states, and this year maybe at least 2 more, if not up to 4. Ive seen carry in Nathanil parks passed. Things are getting better! More can be done, and there are a lot of pro gun people working on it in most states, BEHIND THE SCEENS. I open carry in my bank, grocery store, city parks, restaurants, and never a problem, the police here now know me and trust me I always am polite, educate every where I go, and do my best to be a good Ambassador. You say you are standing up for others rights also, and I believe that, but the general public will watch you, and not say " hay that guy is standing up for my rights, " but instead say " hay that guy is a moron," and again for you military guys, you may win the war, but you lost the battle, in war some times you have to retreat, regroup and attack again.

And exactly WHY have those changes come about?????? For exactly the same reason blacks can now sit at the lunch counter or at the front of the bus; SOMEONE STOOD UP, if not they would still be in the back of the bus. Yes we HAVE come a long way, but is this where you want to stop??????