{"id":495,"date":"2007-04-06T15:23:44","date_gmt":"2006-10-15T17:44:46","guid":{"rendered":""},"modified":"2017-09-17T13:41:48","modified_gmt":"2017-09-17T18:41:48","slug":"en-us-125","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=495","title":{"rendered":"Officer’s inquiry of name and DOB for operating a bicycle for no light was not a seizure where there was no “stop”"},"content":{"rendered":"

The defendant was seen riding his bicycle without a light, and the officer pulled up behind the bicycle and slowly followed, but never put on his lights. The defendant stopped the bicycle and looked back at the officer who got out of the patrol car and walked toward him. The blue lights were never activated. Defendant had no ID on him when asked, but the officer asked for name and DOB which was given. It came back that defendant had a warrant out on him, so the officer arrested him and a search incident revealed a baggie of meth. The search was reasonable, and the police car was parked far enough away to not block his path. The officer never pulled a gun or issued any commands. The officer did not have any ID in hand, so that could not constitute a seizure itself. Motion to suppress denied. State v. Tehero, 2006 UT App 419, 562 Utah Adv. Rep. 36, 147 P.3d 506 (October 13, 2006). Comment:<\/strong><\/em> Once again, our common understanding of police-citizen encounters is contrary to the legal understanding advanced by the courts and prosecutors. And, once again, we get unmitigated fiction from the courts to find the detention voluntary or reasonable. Be realistic: When a cop is questioning a person, does that person really feel that he can turn his back and walk away? The answer clearly is “no.” I always ask “was the defendant free to leave?” The answer usually is “no,” or if there is a hesitation before the answer, I ask “what would you have done if he turned around and walked away [or got in his car and drove off leaving his driver’s license in your hands]?” The response always is “I would arrest [detain] him.” “Physically?” “Yes.” If the answer is “yes, he was free to leave,” the next question is “how did you communicate this to him?” I have actually gotten mileage from “aren’t people usually taught as children to respect the police and do what they are told?” It would be better to preface the questions with a short series of questions on who was standing where, what words were exchanged, the radio call had been made, etc. to commit the office to the scenario being one of him in control. Again, if it is a stop by a patrol car, get the videotape.<\/em><\/p>\n

Plain view supported seizure of drugs. Police received a call that a red Chevrolet with the license plate “CLASSIC” parked in the yard of an elderly couple, and the husband went outside to ask (or tell) him to move it. The defendant then pointed a gun at the man. 911 was called and names were given, and the vehicle was seen and an officer tried to pull it over, and defendant bailed from the car and ran. When the officers approached the car, drugs were in plain view. United States v. Martin, 205 Fed. Appx. 648 (10th Cir. 2006)* (unpublished).<\/p>\n

Detention was reasonable in length before consent was sought and obtained. The record supports the denial of suppression. The fact the detention was fairly long is not coercion in itself because the whole detention was based on facts. State v. Felder, 2006 Ohio 5332, 2006 Ohio App. LEXIS 5311 (8th Dist. October 12, 2006).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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