Mimesis Law
15 July 2019

Cop Tips: Voluntary Contact, Detention, and Arrests

Mar. 29, 2016 (Mimesis Law) — I get a real kick out of the legal advice offered by YouTubers on how one should handle themselves during a police contact.

First, almost all of it is from non-lawyers who have no real understanding of the law. The advice given is almost universally crap.

Second, your telling the police at the scene that they are violating your rights is obviously going to make them stop doing what they are doing, and humbly beg for your understanding and forgiveness ratchet up the pressure and possibly arrest you for any number of offenses, some of which might actually stick.

Third, the street is not the place that the matter is going to be resolved.

Back in the day (a long time ago), I stopped a car for a traffic violation as a pretext for investigating the driver for Driving While Intoxicated. While some will scream and moan about the morality of making a pretext stop, in Texas it was (and still is) legal so long as I could articulate an actual traffic violation that I was stopping the person for. I knew this and used it to my advantage—almost every DWI arrest I made started with an actual traffic violation, and I never lost a case based on no probable cause for the stop.

It was near a bar area where there was a great deal of pedestrian traffic, and, sure enough, we got some people who decided to watch, comment on, and critique the entire stop. One of the commentators was a recent law school graduate who was awaiting bar exam results, and who did not really like the police.[i]

I didn’t particularly like his giving “legal” advice to the person I had detained, so I advised him to back off and shut up, or go to jail. The graduate immediately asked what he would be arrested for, and I replied for either interference or public intoxication, at which point the graduate moved on. I continued to conduct the field sobriety tests and eventually arrested the driver for DWI.

This little incident shows all three types of police-citizen interactions.

When I stopped the vehicle for a traffic violation, I was legally detaining the driver and the occupants of the vehicle. They were not free to leave, but they were also not under arrest. The driver was required by Texas law to provide their driver’s license and proof of insurance, but the passengers were not required to identify. If the driver had tried to leave, he would be arrested.

The contact with the law school graduate was a consensual encounter. He was free to leave at any time, and did not have to identify himself. I did not ask for his ID.[ii]

Finally, at the end, the driver was arrested for DWI, and was taken into custody.

The problem with the YouTubers is that they believe that if they demand that the officer explain the reasonable suspicion for the detention, the officers have to do so. They don’t, and I very rarely explained it other than tell them that they were stopped for whatever traffic violation I had observed. Most people don’t argue that point anyway, and it causes the officer to wonder if you’re an asshole if you bring it up.

I would still recommend that you ask, especially if the encounter is on video, because you never know what the officer will say, and sometimes it’s stupid enough to get the case dismissed.

The law school graduate knew enough to tell the driver not to answer questions, etcetera, and also knew enough to stop when contacted by an officer. While he knew that he could get the interference charge thrown out,[iii] he also knew that the intoxication charge would be based solely on the officer’s determination and would be almost entirely subjective. He didn’t want to take the chance, so he moved on. And that worked for both of us—I really didn’t want to deal with him, much less arrest him,[iv] and he didn’t want to go to jail.

Many YouTubers will continue to antagonize the officers, akin to poking the tiger with a stick. Then they are surprised when the tiger begins to pay attention to them. And police are very adept at using the law to their advantage. For example, if you curse at the officer and there is a civilian present, you are committing disorderly conduct if the officer can get the civilian to say that your language was offensive. And the officer knows how to ask the civilian that question to get the response he needs to arrest you.

And finally, you had a custodial arrest of the driver, where all of the Miranda rights kick in, and so on.

The YouTubers get completely lost at this point. The officer can legally seize the camera or cellphone as evidence[v], you go to jail, and even if you get the charges dismissed later, you are out money for bond, for your lawyer, and so on.

I don’t have a problem with people filming the police; they did it to me when I was on the street.

I have a problem with people interfering with my contact and subsequent arrest.

Just use common sense and you should be OK.

[i] And who also turned out to be a damned good attorney, especially on the appellate side.

[ii] There was also no point, I knew who he was, and asking for ID would have opened up additional issues with him that I had no interest in discussing.

[iii] It is not an offense if the “interference” consists only of speech.

[iv] I certainly did not want to spend the time to get the evidence for public intoxication on him. My goal was to see if the driver was intoxicated, not to deal with a passer-by.

[v] Under federal law, video for dissemination to the public may not be seized unless the cameraman is arrested. Police are required to subpoena that type of video under that same federal law. Of course, YouTubers claim that the video is for personal use, which negates the protection of federal law.

19 Comments on this post.

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  • Mike
    29 March 2016 at 11:14 am - Reply

    Can you please elaborate on footnote v.? Is there a specific law or case reference?

    • Greg Prickett
      29 March 2016 at 5:30 pm - Reply

      42 USC 2000aa, et seq.; and Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457 (5th Cir. 1994), affirming 816 F. Supp. 432 (W.D. Tex. 1993). There are other cases, but that’s the lead case.

  • Tommy Gilley
    29 March 2016 at 1:12 pm - Reply

    You know… reading this article and other works by officers of the law… I just can’t figure out why there might be a subsection of the population which gets worked up over the manufactured and capricious intent behind traffic stops. It has to be Lupus.

    Somehow, someday one of these officers writing a ‘grin and take it’ article will realize the feeling of ‘Wow’ they had watching those youtube videos is the same ‘Wow’ I had reading this article.

    Pretty please, with sugar on top… may I go to another web page?

    • Greg Prickett
      29 March 2016 at 5:35 pm - Reply

      I never said that there was anything “manufactured” nor anything “capricious.” Words have meaning.

      I clearly stated that I would pull someone over for a traffic violation that I observed, as a pretext to investigate them for DWI. They committed a traffic violation. I was a cop and had the legal right to stop them for that violation. It is an objective standard, and the courts do not care what my subjective intent was. If I saw a violation, I could stop them, and then investigate anything else I found, like intoxication.

      That’s the law as to both the federal courts and those of Texas. You would have to double check for other states.

  • Mike
    29 March 2016 at 1:21 pm - Reply
    • Greg Prickett
      29 March 2016 at 5:36 pm - Reply

      I’m familiar with the letter. Is there a point to the link?

      • Mike
        29 March 2016 at 11:19 pm - Reply

        I was having trouble reconciling footnote [v] with the DOJ guidance that:

        F. Police departments should not place a higher burden on individuals to
        exercise their right to record police activity than they place on members of the press.

        In the case of evidence of criminal activity suspected of the cameraman, the Privacy Protection Act of 1980 does not apply. Regardless of if he says the video is personal, or for public distribution over the web via YouTube or the New York Times, you can seize the camera of an interfering ass. The protection of the federal law was already negated by the criminal interference.

        • Greg Prickett
          31 March 2016 at 7:36 pm - Reply

          True.

          Any offense committed by the cameraman negates the PPA’s protection.

  • Chris
    29 March 2016 at 1:39 pm - Reply

    If someone is not maintaining their lane or runs a light, it is called their job to pull them over. That job would also include following up if they appeared intoxicated or smelled like a brewery. Pulling people over for traffic violations near the local watering hole around closing time is not foul play, it is the kind of DUI enforcement that the law abiding public, sick of the mayhem caused by drunks on the road, demands.

    If one of these youtube lawyers, know-it-all law students, or sovereign citizens decides to insert themselves into or interfere with a DUI investigation, then, after fair warning to disperse, they absolutely should be arrested for obstruction.

  • Paul L.
    29 March 2016 at 2:47 pm - Reply

    “I did not ask for his ID.”
    And even the “Can I see your ID?” “request” that is spoken like a order/demand?

    • Paul L.
      29 March 2016 at 3:15 pm - Reply

      Correction:
      Not even the “Can I see your ID?” “request” barked like a order/demand?

      • Greg Prickett
        29 March 2016 at 5:39 pm - Reply

        Nope. Why would I? I knew who he was, could have run him by name only (or get the DOB from the jail). I didn’t want to deal with him, I wanted him to either move on or be quiet.

  • David Woycechowsky
    30 March 2016 at 1:24 pm - Reply

    almost every DWI arrest I made started with an actual traffic violation, and I never lost a case based on no probable cause for the stop

    this is the basic problem with having the Exclusionary Rule act as the primary safeguard of 4A rights. Of course they never found lack of probable cause — that would have let a drunk driver go unpunished.

    This is how notions of probable cause become degraded over time, to the point where many judges believe not merely that probabilities are difficult to quantify in mant case, but, more damagingly to 4A rights, that “probable cause” does not require a “preponderance” even in situations where probabilities can be at least roughly quantified. This is the kind of thing you get when Exclusionary Rule suppression hearings are the primary determinant of 4A related legal standards.

    • Greg Prickett
      30 March 2016 at 2:06 pm - Reply

      OK, to clarify this.

      I would observe a traffic violation, which in Texas is a crime for which one can be arrested. A police officer may make a custodial arrest for any crime that occurs within his presence or view, and the initial seizure of the vehicle and driver for that traffic violation is based on probable cause.

      You should also be aware that probable cause doesn’t come any where close to preponderance of the evidence, and never has. Probable cause merely requires sufficient facts to lead a reasonable person to believe that the arrestee committed the offense. That’s it. And when the officer sees a traffic violation, he has probable cause to stop and arrest or detain the individual See Romero v. State, NO. 2-04-472-CR, 2005 Tex. App. LEXIS 8330 at *5, 2005 WL 2472049 (Tex. App.–Fort Worth, 2005, pet. ref’d).

      Once I contacted the driver, if the driver had any indicators of intoxication, such as slurred speech, bloodshot eyes, odor of an alcoholic beverage, etc., that provided the reasonable suspicion to investigate further.

      Then if I developed probable cause that they were intoxicated, they would be arrested for DWI. If not, they were released, and about 20% of the people I administered the SFSTs to passed and were released.

      But I also understand what you are saying about probable cause. I’ve got a DWI case right now where the main issue is the lack of probable cause for the arrest. The problem is that PC is such a low threshold…

      • David Woycechowsky
        31 March 2016 at 10:09 am - Reply

        Probable cause is cause that would cause a reasonable person to “believe” that a thing is true.

        If we could precisely quantify the probability that some thing is true based on what the police officer knew and didn’t know, and, on this basis of imperfect knowledge, the thing had a 48.00% probability of being true, then it would not be reasonable for the police officer to “believe” the thing was true. If the police officer testified that she believed the thing to be true, then she would be: (i) lying; (ii) unreasonable; or (iii) both.

        I understand that that is not how it works in practice, but it is what the law demands (when the law is taken seriously).

        • shg
          31 March 2016 at 10:37 am - Reply

          The Supreme Court has steadfastly refused to be goaded into quantifying probable cause, and has done grave harm to the language by using the word “probable” when it doesn’t mean it.

          As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

          Like you, I think this is nonsense, but then, that could explain why no one has nominated me for the Supreme Court.

        • Greg Prickett
          31 March 2016 at 12:11 pm - Reply

          Actually, using a “percentile” chance is forbidden in Texas courts in a number of areas for probable cause. Take the SFST battery for example. If a subject has 4 or more clues on the HGN and 2 or more clues (out of 8), then the NHTSA study says that there is a 80% chance that the subject is intoxicated. So if the officer says that he saw those clues, you have just given him probable cause, due to the “percentage” of the clues.

          Assigning mathematical precision to law may work in certain areas, contracts, transactional law, patent law, and the like, but it doesn’t translate well to criminal law. Or at least that’s my opinion. Quantifying it would help the police more than the citizen.

          • David Woycechowsky
            31 March 2016 at 1:00 pm -

            Think of the Colorado case where the police searched 20 vehicles for a fugitive.

            Or even Kentucky v. King where the suspect ran into one of two apt units.

            There are real life cases susceptible to meaningful (albeit not precise) quantification.

          • Greg Prickett
            31 March 2016 at 8:35 pm -

            The Colorado case was BS, they did not conduct a reasonable search (regardless of what the court ruled on the suppression, plus, the 1983 case is still pending).

            Quantification had no bearing on the search, since they had tracked the bait pack to that intersection. That’s what quantification brings, not precision, but fuzzy numbers and broad paintbrushes. When you bring statistics into reasonableness and probable cause, what you get is people who will manipulate the stats to prove what they want to prove.

            The odds are that the bank robber was in one of the 20 cars.

            There is a 50% chance that someone who is driving without headlights is drunk if the driver is also driving 10 mph under the speed limit. If he follows too closely, there is a 35 to 90% chance (which is wide enough to be useless).

            There is a 100% chance that no one ever smelled the odor of alcohol on someone’s breath (they actually smell the odor of the carrier for the alcohol, the Jack Daniels or Coors).

            If there is a 60% chance that the driver is intoxicated, there is a 40% chance he is not.

            There are too many ways to game the system. It won’t work.

            I’m not familiar with Kentucky v. King.