When a police officer stops you on the street, the law says that the stop will fall into one of three categories: consensual contact, detention, and/or arrest. In the event that you are stopped for a traffic issue, the officer will likely attempt to engage you in the first, and the encounter may never proceed beyond that point. How you handle this encounter at the very outset will determine which, if any, of these three categories your stop falls into, and depends on how clearly you understand your right to limit contact with government and its agents. It is up to you to question and to make a determination of the authority of anyone who approaches you purporting to represent a government agency. If you can establish a courteous beginning, with respect shown by both sides, you’re likely to obtain the outcome you want. But be aware that the LEO (law enforcement officer) wants to build a case against you for some traffic infraction. And that he needs your consent in order to do that. Remember, anything you say (or documents you provide) can and will be used against you in a court of law. If the stop has nothing to do with an actual crime and you can establish that fact at the outset of the contact, you can then put the officer on “good faith” notice that you do not voluntarily consent to being detained and then pose to him your own questions. The reason for doing this is: if you do not personally establish by your own statement that you do not agree to be stopped, then you are said to allow a presumption to be created (under the law) that you do agree in being detained.
Remember, the first objective of the Officer in dealing with you is to form a contract, such as “May I see your driver’s license and registration?” or “Will you please roll down your window a little further!” If you immediately comply with either of these requests without questioning it or without objecting to it, it is deemed, in law, an oral contract! In other words, you have just consented to the contact. (Remember the first category above? “Consensual contact.”) Just be aware that you have the right to ask the officer for his identification also (in the form of his business card, which he is by law supposed to carry on his person at all times) in order to satisfy yourself that he isn’t an impostor. Or that you can object to the contact by stating that you “do not consent to this contact” at the very outset of the encounter. Remember, under the Constitution you have a right to remain silent (Fifth Amendment) and to not interact with government actors.
If you intend to interact with the officer, then the following five questions and statement are really all that is needed to control most police encounters. They may seem somewhat counter intuitive at first glance; until you realize that by consenting to the contact, you waive your right to remain silent. It is almost never a good idea to converse with law enforcement, especially when you are being stopped in a traffic issue. These questions are simple and will generally solicit a predictable and reliable response. The first four questions are designed to demonstrate knowledge of your rights to the officer that unless he has specific and articulable facts to detain you or a warrant, you should be free to leave.
1. What is the nature of your inquiry? (Let him state his cause.)
If he asks you for your driver license and registration, you should reply:
2. Is that a request or a demand? (Let him answer one way or the other. Once he has, follow up with the third question. You should know that you are within your rights to deny a request, but can only accede to a demand “under duress.” Make sure you say something like: “I am handing this over under duress” to get it on the record.)
3. Do I have the right to remain silent? (This lets him know that you want him to respect your rights. If he becomes belligerent about the matter, calmly follow up with questions five and six.)
Once he agrees to recognize your rights, ask the fourth question:
4. Am I free to go?
5. Can anything I say to you or any documents I give to you be used against me in any legal matter? (You and he both know that this is true.)
6. I am not refusing to cooperate. I am exercising my right to remain silent. (By making this statement, you are exercising your right to remain silent.)
If you get as far as the fourth question and the officer is still attempting to detain you, then this stop and detention becomes a Fourth Amendment issue. Unless you have committed a known crime according to common law (and common sense) that the officer has witnessed, then your Fourth Amendment rights against unwarranted search and seizure apply and you cannot be forced to produce anything.
In a second scenario, rather than ask, “What is the nature of your inquiry,” you can state right at the outset that: “Before we go any further, I do not consent to this contact, and I reserve all my rights. I accept your oath of office as binding.” Accepting their oath of office puts them on notice that they must abide by their Constitutional oath and uphold your rights. If they do not, they can be held personally liable for any injury they may cause you. You can even tell them this. After stating that you do not agree to being stopped and detained for no articulable reason, you must ask the officer if he is detaining you. If the officer answers he is not detaining you, then you inform him that you will be on your way.
If the officer answers that he is detaining you, then you must ask the officer does he have a well founded probable cause (“specific and articulable facts” is the phrase that officers are taught and use to describe this) that you have committed a crime known to the people’s common law as his basis for detaining you, and that you expect a “good faith” answer from him. If the officer states he has no such well founded probable cause, then you inform him that you will be on your way. It will be helpful, at this point, for you to remind him that when an individual is detained, without warrant and without having committed a crime (traffic infractions are not crimes), the detention is a false arrest and unlawful imprisonment. If the officer goes silent, continue to ask, “Am I free to go”, until you receive a yes.
If his “probable cause” proves to be merely connected with the state’s traffic regulatory law scheme, which includes any local traffic regulatory ordinance or code, then he is violating your sovereign right to life, liberty and property; and by his detaining you he is holding you under false arrest and false imprisonment pursuant to the common law.
With regard to whatever probable cause or “probable suspicion” he may come up with, ask him if he has a license to make such a legal determination. If he answers “yes,” ask to see his license. If he has one, this means he must be some sort of attorney in addition to being a law enforcement officer. If he does not have an attorney’s license, he is not legally competent (or licensed) to make a legal deter- mination, and therefore must allow you to be on your way. If a demand is made, ask the question, “Can anything I say to you or any documents I give to you be used against me in any legal matter.” This is a dilemma for the officer. They are supposed to take an oath which binds them to the Con- stitution. Their oath to abide by the Constitution takes precedence over any request or demand for information they may make. They may choose to repeat their demand, and possibly become uncivil. Just keep asking the question until you receive an answer.
If you are not willing to stay the course because you feel that the officer may become violent, you can say “since you are using color (pretense) of law, threatening me with bodily harm, and forcing me to do business with you against my will, I am happy to cooperate under duress. May I please have your business card.” Then give them what they are requesting. If you have a driver license, make certain to state that it is not for identification purposes. Remember to give your identity as True Name (First Middle) only. You do not want to create a nexus between the artificial person (the legal fiction) and your status as a natural man or woman.
Make a mental note of what they say to you and write out a report of the facts of the incident as soon as possible to be used in an affidavit in case you want to file a tort claim against them later. If they refuse to give you their card, memorize their badge number and/or name. In point of fact, refusing to supply you with their business card is an infraction of their duty and a cause of action in a civil suit. unless you are stopped while driving a school bus or are a state employee or are engaged in commercial activity (like transporting cargo or persons for pay), the odds are slim indeed that you are subject to your state’s traffic regulatory scheme. Know that there are constitutional grounds which will defeat a traffic law violation charge no matter the circumstances.
If the officer should detain you without stating any probable cause reason after your proper good faith demand for one or can only claim some administrative law violation without being able to show his probable cause grounds (or evidence, like a quasi-contractual agreement based on your having and identifying yourself with a driver license) of why he thinks you are subject to it, then he is proceeding under color of office.
If you haven’t shown him a DL and he starts asking for one, then he is fishing for evidence, and that too is a no-no (Fourth Amendment violation). Under the Fourth Amendment, you have the right to be secure in your person, papers and property from unreasonable searches and seizures without a proper warrant being presented. He is using color of process. This means he is proceeding under color of law. At this point, it might be beneficial to warn him that tort damages and “civil rights” violation damages are in the making should he continue with this line of pursuit.
Always keep in mind that the officer will do whatever he believes he can do. If he becomes aware that you know your rights under this situation and that he can personally be held liable, that may be enough to make him pause and reconsider his course of action. In the case of any kind of unjustified detention, just remember the following: “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 US 1, 16 (1968)
Also be aware that: “An illegal arrest is an assault and battery.” State v. Robinson 145 Me. 77,72 Atl. 2d 260, 262 (1950). So, the officer faces these possible circumstances should he proceed with an actual arrest without probable cause. Of course, you must understand that the officer may actually believe he has probable cause because he has observed prima facie evidence that you are within his juris- diction and that you have violated a regulation or statute within that jurisdiction.
If after the above-mentioned events (where you are being forced to do business with the officer) you are asked to sign anything (like a citation) put the words “under duress” above your signature. This preserves your common law rights when brought out in court proceedings, even if you have been forced to turn over a driver license and registration. What matters in court is that you were not engaged in any regulated activity (commerce for hire) at the time of the stop.
What is important to establish from the very outset of the traffic stop event is your refusal to do business with the officer (if, indeed, you have committed no offense). Once you’ve been able to determine his reason for stopping you, you are perfectly within your rights to tell him: “I do not consent to this conversation.” Always respond to any request for information or documents with the question: “Is that a request or a demand?” If it is a request, ask: “Do I have the right to remain silent?” To which he should answer “yes.” Then you follow that by asking: “Am I free to go?” Your encounter can be this short if you stay focused, and no demands are made.
Asking “Am I free to leave” is important in establishing that you do not consent to this contact. Ask this several times to make sure the cop will have a hard time denying this and saying you didn’t mention it later on if you get to court. If it is really a consensual contact, the officer ought to let you go on your way if you ask to go. If you don’t actually verbally ask to leave, the court will presume that you consented to whatever follows.
Keep this as a note in notes on your iphone or keep a printed copy handy