Mimesis Law
26 October 2020

Suspicious Activity: Is that a Felony or Misdemeanor?

January 3, 2017 (Fault Lines) – I watched a bunch of YouTube videos to find subjects to write about for my mean-a** editor,[1] who has this idea that we shouldn’t write on the same stuff all of the time. One thing that I’ve noticed lately is that there are a bunch of videos where both sides are right, and both sides are wrong.

The YouTuber is normally video-recording something, and the police make contact with the individual. Almost every time the officer asks for identification and almost every time the YouTuber wants to know what crime he is suspected of having committed, is suspected of being about to commit, or is in the process of committing. Almost none of the police get it right, but before all of the YouTubers get excited, almost none of them get it right either. For example, the following video pretty clearly shows the issue.

What you see here is typical. The police are responding to something that they believe is not normal, and they expect people to comply with their commands. Indeed, they repeatedly state that people should comply with all police commands and requests, obviously not understanding that this negates the protections of our Bill of Rights, and encourages police to step past the line that is supposed to limit civil rights violations.

So the police officer asks the YouTuber for identification, and the YouTuber immediately wants to know if he is being detained or if he is free to go, and next wants to know the reason for the detention. Then the typical officer responds that the YouTuber is suspected of suspicious activity, and that sets up the typical YouTuber’s classic retort, asking if that’s a felony or a misdemeanor.

That’s a trick question. The YouTubers have the right idea; the officer has to be able to articulate reasonable suspicion that a crime has been committed, is in progress, or is about to be committed. But that doesn’t give the officer a blank check, his actions must still be reasonable. The officer, in order to detain someone, must have actual suspicion of a crime. To force someone to identify themselves requires that there must be facts that support a conclusion of criminal activity. In Brown v. Texas, the Court noted that in order to demand identification from someone:

[W]e have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.[2]

An officer may ask questions of an individual whom he feels is suspicious. As Justice Byron White stated in his concurrence to Terry v. Ohio:

There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked, but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.[3] (Emphasis added.)

This is where the disconnect comes in on the part of the police. Unless you are in a stop and identify state, you do not have to identify yourself to police. In Texas, for example, you cannot be charged with Failure to Identify[4] for refusing to identify unless you have been lawfully arrested, you do not commit an offense if you refuse to identify when you have merely been detained.

Police officers don’t understand this. They have been taught buzzwords and phrases like “suspicious activity” and “reasonable suspicion” without understanding the concept behind those terms. So they will tell the YouTuber that they have stopped them for being suspicious when in fact they just want to identify the person, when they don’t have any objective facts to support the detention. That’s what the Seagoville, Texas sergeant did in the video, obtaining the YouTuber’s ID by intimidation.

And YouTubers don’t understand it when the officer actually tells them that there is reasonable suspicion, such as an inaccurate report of a complainant of trespassing by the YouTuber. They don’t understand that the complainant’s report doesn’t have to be true for the officer to investigate it, and the officer does not have to take the YouTuber’s word that he wasn’t trespassing.

You see, a 911 call of trespassing that provides a description, combined with the officer’s observation that the YouTuber meets that description, and the YouTuber being in the area of the alleged trespass, provide reasonable suspicion, and all of the denials on video won’t change that detainment into an unreasonable stop. Or, as in the second video, the officer has reasonable suspicion, but the YouTuber doesn’t understand what reasonable suspicion actually is.

Although the Coppell, Texas officer doesn’t push the issue, he clearly articulated reasonable suspicion for the stop. It was a legal detention, and the officer was smart enough not to push the issue where it did not need to go. The YouTuber did not have to identify himself; he wasn’t under arrest for another offense.

This is going to continue so long as we don’t educate both the police and the public on what the law actually means.

[1] Although to be fair, he didn’t say a word when my article was late due to my watching my Oklahoma Sooners continue their domination of SEC teams in general, and in the Sugar Bowl specifically.

[2] Brown v. Texas, 443 U.S. 47, 51 (1979).

[3] Terry v. Ohio, 392 U.S. 1, 34 (1967) J. White, concurring.

[4] § 38.02, Tex. Pen. Code.

7 Comments on this post.

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  • Brad
    3 January 2017 at 8:09 am - Reply

    It provides the policeman more flexibility to say that the call might have come in on the non-emergency line, just in case a recording of the trespassing complaint call cannot be located during any ensuing litigation.

    • Greg Prickett
      3 January 2017 at 9:12 am - Reply

      Whether the call is on a recorded line really doesn’t matter. If there is a call, there will be a call sheet or some other form of dispatch record. Reasonable suspicion is a very low bar, it does not take much to meet that requirement.

      The problem is that most officers don’t understand that “suspicious activity” means that they have to have facts that may indicate that criminal activity is occurring. They can’t just use the term and pass legal muster.

      • Brad
        3 January 2017 at 9:23 am - Reply

        What you are saying makes sense as long as the call really occurred and was not a harmless “white lie” made so that the policeman could investigate his hunch / exert his authority / etc.

  • Keith
    3 January 2017 at 8:58 am - Reply

    If the police have a call and general description, in order to have enough cause to require identification and a stop, do they have any obligation to tell you that?

    In other words, how does the person stopped know if they are in the situation described as an unlawful request or the one described as having cause if the police simply demand ID?

    • Greg Prickett
      3 January 2017 at 9:15 am - Reply

      No, they are not under any obligation to tell you, so the person will not necessarily be able to tell if it is an unlawful request or not.

      • SCG
        3 January 2017 at 10:02 am - Reply

        That is the problem. Given the police are permitted to lie, and that there is virtually no chance the prosecutor will have any consequence for lying, it really makes sense that trust in the State is being eroded.

        • Greg Prickett
          3 January 2017 at 10:16 am - Reply

          And the State has no incentive at this point to change.