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  1. #1
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    Can police retaliate against a citizen for refusing to answer questions?

    Quote Originally Posted by Orin Kerr
    In a new case, Alexander v. City of Round Rock, the U.S. Court of Appeals for the 5th Circuit considers the following question:

    If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions?


    In the 5th Circuit’s decision, the court rules that:
    • Retaliation against the driver for refusing to answer police questions may involve acts that violate the Fourth Amendment.
    • Retaliation for refusal to answer police questions doesn’t clearly violate the First Amendment
    • and such retaliation doesn’t violate the Fifth Amendment.
    Full case:
    http://www.ca5.uscourts.gov/opinions...-50839-CV0.pdf

    Florida attorney's recommendation:
    http://www.brittlaw.net/duicheckpoint.html

  2. #2
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    Quote Originally Posted by Unregistered View Post
    THis lawyers PDF print out opens the driver up to arrest. No where in 322.15 does it not allow you to produce a DL. Refusing to answer any questions is not illegal but you do have to provide the DL upon request. Failure to do so coupled with lawful orders to step out of the vehicle will result in an arrest.

  3. #3
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    Quote Originally Posted by Unregistered View Post
    That lawyers PDF print-out opens the driver up to arrest. No where in 322.15 does it not allow you to produce a DL. Refusing to answer any questions is not illegal, but you do have to provide the DL upon request. Failure to do so, coupled with lawful orders to step out of the vehicle will result in an arrest.
    The attorney is either saying that (not sure which):
    - the DL can be slipped through the window or
    - the driver can hold the DL up to the rolled-up window for the officer to read (but he can't touch or hold it).

    If the driver holds his DL up to the window for the officer to read it, then did the citizen provide his DL? Or is there case law that says that an officer must physically touch (or hold) a DL for it to be valid? A computer check quickly reveals if it's valid or not.

    Here is an example of how a citation can be valid, even if the driver never "physically touches" it:

    In the old days, a driver had to physically sign for a civil citation, or he could be arrested. However, the law changed -- and now a driver can refuse to sign (or touch) the citation -- but the citation remains valid, unless the driver takes it to court and is found not guilty.

    Again, does the officer have to hold the citizen's DL for it to be valid?

  4. #4
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    Quote Originally Posted by Unregistered View Post
    The attorney is either saying that (not sure which):
    - the DL can be slipped through the window or
    - the driver can hold the DL up to the rolled-up window for the officer to read (but he can't touch or hold it).

    If the driver holds his DL up to the window for the officer to read it, then did the citizen provide his DL? Or is there case law that says that an officer must physically touch (or hold) a DL for it to be valid? A computer check quickly reveals if it's valid or not.

    Here is an example of how a citation can be valid, even if the driver never "physically touches" it:

    In the old days, a driver had to physically sign for a civil citation, or he could be arrested. However, the law changed -- and now a driver can refuse to sign (or touch) the citation -- but the citation remains valid, unless the driver takes it to court and is found not guilty.

    Again, does the officer have to hold the citizen's DL for it to be valid?
    I could make the arguement that I must hold it in my hand along with the registration and proof of insurance. I am not going to stand at the window and try to read and copy things on the side of the road. PLus if the person has any kind of tint on the car its very hard. PLus I need to inspect the DL to ensure its authentic. They could slip it through the window though that would be fine..

  5. #5
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    Quote Originally Posted by Unregistered View Post

    I will give you an example. While you cannot be retaliated against for not answering questions you can be arrested. F.S. 856.021 Loitering and Prowling. If I come upon you hanging out behind a closed business. I detain you, I ID you if you still have not dispelled my suspicions. Then I will read you Miranda and if you choose to not speak with me I must tell you that your failure "to dispel my suspicions as to you being in a place at a time that a normal law abiding citizen would be" that you will be placed under arrest for Loitering and Prowling. Now it is well within your rights not to speak with me however it is within my rights to arrest you as well.

  6. #6
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    Quote Originally Posted by Unregistered View Post
    I will give you an example. While you cannot be retaliated against for not answering questions you can be arrested. F.S. 856.021 Loitering and Prowling. If I come upon you hanging out behind a closed business. I detain you, I ID you if you still have not dispelled my suspicions. Then I will read you Miranda and if you choose to not speak with me I must tell you that your failure "to dispel my suspicions as to you being in a place at a time that a normal law abiding citizen would be" that you will be placed under arrest for Loitering and Prowling. Now it is well within your rights not to speak with me however it is within my rights to arrest you as well.
    However, the following case had nothing to do with L&P because it dealt strictly with:
    - a female attorney
    - who was in her car
    - on a public roadway.
    However, when she refused to answer questions, the NJSP trooper arrested her. Here is the story:

    http://www.nj.com/politics/index.ssf..._silent_d.html

  7. #7
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    Quote Originally Posted by Unregistered View Post
    I will give you an example. While you cannot be retaliated against for not answering questions you can be arrested. F.S. 856.021 Loitering and Prowling. If I come upon you hanging out behind a closed business. I detain you, I ID you if you still have not dispelled my suspicions. Then I will read you Miranda and if you choose to not speak with me I must tell you that your failure "to dispel my suspicions as to you being in a place at a time that a normal law abiding citizen would be" that you will be placed under arrest for Loitering and Prowling. Now it is well within your rights not to speak with me however it is within my rights to arrest you as well.
    You obviously feel power from your badge. No SAO would take your case. Hanging out behind a closed business is not against the law. And moron, in this country a citizen is not required to "dispel" your suspicions. You give cops a bad name. Get over your power trip.

  8. #8
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    Quote Originally Posted by Unregistered View Post
    You obviously feel power from your badge. No SAO would take your case. Hanging out behind a closed business is not against the law. And moron, in this country a citizen is not required to "dispel" your suspicions. You give cops a bad name. Get over your power trip.
    Your obviously not a cop and no concept of what L&P is or the case law behind why I wrote exactly what I did. And yes the person does have to dispel Leo suspicion or else they take a ride to jail. And yes if the LEO followed the steps outlined then a SAO can and will file charges. Even if they don't file on them the guy still took a ride and had to post bail.

  9. #9
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    The elements of L&P are:
    - statutorily defined
    - along with case law precedent.
    Both go together (if you want an L&P case to stick). However, there are very few L&P arrests and most of them are at nighttime. As an officer, you are required by law to give the citizen an opportunity to "dispel" your concerns. Your concerns must be predicated on what other officers (in your situation) would think. In other words: are you (as an officer) being reasonable?

    Anyway, a citizen cannot be punished for refused to answer questions. If a citizen is loitering and prowling, at a time and place that cannot be legally justified, then arresting him for L&P isn't not punishing him, even if he refuses to answer questions.

  10. #10
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    Quote Originally Posted by Unregistered View Post
    The elements of L&P are:
    - statutorily defined
    - along with case law precedent.
    Both go together (if you want an L&P case to stick). However, there are very few L&P arrests and most of them are at nighttime. As an officer, you are required by law to give the citizen an opportunity to "dispel" your concerns. Your concerns must be predicated on what other officers (in your situation) would think. In other words: are you (as an officer) being reasonable?

    Anyway, a citizen cannot be punished for refused to answer questions. If a citizen is loitering and prowling, at a time and place that cannot be legally justified, then arresting him for L&P isn't not punishing him, even if he refuses to answer questions.
    I agree with you on most of what you wrote. There are actually a good number of L&P arrests yes the majority of them are at night, however they are usually combined with other charges that during the course of the investigation come to light.

    I wasn't meaning to imply you were punishing someone by not answering questions. However in the case of L&P if you just choose to not speak with the officer then they must make a judgment call to arrest you or not. So while its not a punishment you can be arrested for not answering questions of a LEO.

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