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4th (Fourth) Amendment Seizures of persons

Posted by attorney Robert Lee "Is it unreasonable for an officer to stop me on the street and request to search my luggage or person absent probable cause?" That depends: The US Supreme Court has recognized three categories of law enforcement encounters with individuals: 1.) 'casual encounters' 2.) 'temporary detentions' and 3.) 'arrests' The first type of encounter, a 'casual encounter' has been held NOT to be a seizure of your person and therefore, any information obtained by law enforcement during this 'casual encounter' can be used against you! The Court has stated that a casual encounter is one where the individual is free to terminate the encounter at any time and without repercussion. The Supreme Court went on to explain in US v. Drayton that "law enforcement officers do NOT (emphasis added) violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are WILLING TO LISTEN (emphasis added)... Even when law enforcement officers have no basis for suspecting a particular individual, they may POSE QUESTIONS, ASK FOR IDENTIFICATION, AND REQUEST CONSENT TO SEARCH LUGGAGE (emphasis added) -- provided they do not induce cooperation by coercive means... If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Now, what the Court is saying here is that a police officer may initiate conversation with you or I just as any other 'normal' individual and in spite of our programming to the contrary (to give deference and respect to officers of the law) we may "terminate" or ignore the officer and end the conversation absent ramifications. Clearly (given the above flawed opinion) no member of the Supreme Court has ever had a run-in with the law. No 'reasonable person' would possibly feel free to unilaterally terminate a conversation with a law enforcement officer. This 2002 Supreme Court decision, while preposterous however, is the unfortunate state of the law. As such, so long as you are 'free to leave' there is no detention and therefore no Fourth Amendment violations regarding a seizure of a person should an officer of the law stop you in the street to 'chit chat.' In closing - if you are randomly stopped by an officer while walking around town and do not wish to partake in their conversation, remember: you don't have to talk back. Ask them if you are free to go and if so, end the conversation at that. : call us at 305.322.9971 for a free legal consultation!

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