Told by police that I&#39;m being detained. No probable cause or statute/law given. Am I free to leave? I recently watched this video on YouTube: https://www.youtube.com/watch?v=FSJTxalznxE It's of a man open carrying a shotgun and filming from a public street. Nothing he did was illegal which later in the video is even confirmed by the female officer. Yet when the man asks the cop if he was being detained she responded &quot;Yes&quot; and when asked for a reason, she said something along the lines of I'm carrying out an investigation from a call we received. I read another post on this website about what constitutes probable cause and it's my understanding that in the instance of this video, the police officer did not have probable cause to detain this man. Given that there is no probable cause as per my personal understanding of the situation and that no law was broken, according to the officer's own words, would it be illegal to walk away from the cops? Bonus question: If this man decided to run away, what reasons do the cops have to chase after him and if they did in fact chase after him, what would the reason for his arrest be?
There is a lot of confusion over the difference between reasonable suspicion and probable cause. They are not the same thing. Reasonable suspicion is any justifiable belief that a crime has been or is about to be committed. Probable cause requires an officer to have actual, tangible evidence that you have committed a crime. Only after probable cause has been established can an officer arrest you (with limited ability to search your immediate person and effects). Reasonable suspicion only requires some articulatable justification that you did something wrong. The police can detain you on reasonable suspicion, and they do not have to tell you why. This is called a Terry stop (after Terry v. Ohio where the Supreme Court ruled this was legal). However, they can only detain you long enough to ascertain whether or not they have probable cause to arrest you. If after conducting a preliminary investigation they can't find probable cause to make an arrest, they have to let you go. In that video, we have a guy walking around in Texas with a shotgun and some shells. We never see what this guy looks like or how he's carrying himself, but he appears to be a troll. The cops received a call, so they investigated. They had all the reasonable suspicion they needed to detain him. Texas is an open carry state (a person can walk around openly with a gun), and it is not a stop-and-identify state (the police cannot demand that you ID yourself). Therefore the man did not break any laws. But neither did the police officers. They were doing their job by asking questions, and after failing to find any evidence, they let him go. If he had run before the officers had cleared him to leave, they could have chased him down and arrested him. That is, after all, what a detention is. You don't get to run away because you don't recognize a cop's authority to stop you. And fleeing a law enforcement officer is a crime. But you do have the right not to answer any questions, including (in some states) what your name is.
You did not commit any crime, but that does not mean you cannot be charged with a crime. Up to the point where you take the item back out of your pocket, a police officer would have probable cause to believe you were attempting to steal the merchandise, and probable cause is all he would need to charge you. At trial, the government would have the burden of proving that you intended to actually steal the item, but it can satisfy that burden merely by showing that your actions were consistent with such an intention. You would have the option of testifying that you planned to pay for the item. From there, it would be up to a jury to decide whether it believes you. If so, you should be acquitted. If not, you would likely be convicted, and your conviction would likely be affirmed on appeal.
In Massachusetts where I live, here are the general guidelines: In re G.L. c. 268, § 32B(b). A person can be charged with resisting arrest only when the officer is acting under the color of his official position (meaning he is on duty and acting according to those duties). The Commonwealth must also prove that the defendant knew that the person seeking to make the arrest was a “police officer.” The Commonwealth may do so by proving that the officer was in uniform or, if not in uniform, identified himself (herself) by exhibiting his (her) credentials as a police officer while attempting to make the arrest. Such credentials would include such things as a badge, insignia, identification card, police radio, or other police equipment such as a clearly identified police vehicle. Thus, in Massachusetts according to usual legal interpretation: (1) The officer must be on duty and acting in an official capacity. (2) The officer must be provably known to be a police officer by some means to the person charged. Resisting arrest must be ancillary to some other charge. You cannot just be charged with "resisting arrest" unless you are actually being arrested on some other charge (or interfering with someone else being arrested). So, as far as a search is concerned, even if the resisting arrest charge were thrown out, the real question would be why was the person being arrested in the first place? That would determine the admitability of the evidence.
The answer provided by Dale M is half right, but there are a few things that I think are wrong. Firstly, the actual reality of the situation doesn't matter. What matters is that you act in a reasonable manner, performing assessments of the situation as a reasonable person would do. If you misread the situation, and end up killing a police officer that was acting in a lawful manner, it doesn't necessarily mean you were acting unlawfully yourself. Because police officers are generally exposed to situations where they would be forced to use their firearm, that obviously would impact how a reasonable person would see the situation, but the test for reasonableness would not go out the window. In addition, even if you were found to not be acting in a reasonable manner, there is certainly a question if you would be found guilty of a lesser charge of manslaughter rather than murder. It's possible the self-defence claim would be upheld as an imperfect defence.
So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not. Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true. In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor. Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene. Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide. Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun. Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder. As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us." Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case. In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case. Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense.
Assuming, pending information about the jurisdiction, that this happened in the US, the answer is it depends. As described in Justia's Vehicular Searches article and Wikipedia's Motor vehicle exception article, Under US law police can search a motor vehicle without a warrant if they have probable cause. This doctrine was first stated by the US Supreme Court in Carroll v. United States 267 U.S. 132 (1925) and later modified or repeated in Husty v. United States, 282 U.S. 694 (1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U.S. 160 (1949). All of these cases involved contraband, but in Chambers v. Maroney, 399 U.S. 42 (1970), the Court broadened the rule to evidentiary searches. See also Coolidge v. New Hampshire, 403 U.S. 443, 458–64 (1971) In Preston v. United States, 376 U.S. 364 (1964) the Court ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the station house for a warrant-less search at the convenience of the police. Subsequent cases have widened the scope of the exception, although the probable cause requirement has remained, and stops must have at least "articulable and reasonable suspicion". In the case of an ordinary traffic stop, the police may conduct a Terry-type search, based on "articulable suspicion". However, if the police arrest the driver, that is grounds to search the car under Atwater v. City of Lago Vista, 532 U.S. 318 (2001) and New York v. Belton, 453 U.S. 454 (1981) Under Michigan v. Thomas, 458 U.S.(and Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67 (1975); United States v. Ross, 456 U.S. 798, 807 note 9 (1982).) police may remove the car for a search elsewhere if they have probable cause to believe that there is contraband (such as alcohol, drugs, or weapons) in the car. Thus the arrest justified a search, as described in the question. It might not have justified the tow if there was not probable cause to suspect contraband. But that depends on the detailed facts, and judging those is beyond the scope of this site. In Collins vs Virginia (2018) the Court ruled that a warrant-less search of a car parked on the owner's property and within the curtilage was not justified. (The "curtilage" is the area near the house which gets additional Fourth Amendment protection, almost as if it were inside the house). However, in that case no arrest was made at the time of the search, and the search was based on an officer recalling the car having been used to elude arrest some two months previously, not just a few minutes before, so that case may not apply in the situation described above. If there was no probable cause, any evidence found might be subject to suppression, and a suit for damages under sec 1983 might be brought against the officers and the police force, but that would depend on the specific facts, and would in practice require a lawyer skilled in such matters.
This all depends upon where you are. I am a landlord and I am answering based upon the laws of the U.S. and the states that I operate in. First things first. You are not the property owner. While this does not limit the answer, it is a factor. You do not have the right to the property even if you have a key and the permission of the tenant. You are not the property owner, do not represent the property owner nor the tenant, and by contract do not have legal rights to the apartment. It does put you in a different situation. As a landlord, it is against the law for me to provide access to a tenants apartment to anyone without authorization. This, of course, precludes emergencies such as welfare checks. In the case of the police, a warrant is required or a form that the police fill out that allows the police to gain access. This would be used in cases such as when a spouse requires the recovery of personal property during a domestic dispute. A judges order is not always possible in these cases. These are often limited cases and the form absolves the landlord of liability even in cases where the police act incorrectly. So without a warrant or a form that certifies any lawful request, anyone including the landlord can be arrested for a crime. For your situation, a quick call to the landlord would have been appropriate. Without a warrant or certification, the police still had options including waiting for the person in question to either leave or return to the apartment or even request a warrant by phone. Often, the warrant, once signed by the judge, can be read over the phone. Any landlord should always have a paper copy provided within minutes since some cruisers will have a printer and can print the warrant. Your refusal appears to be legal. However, in the future, you can ask for a copy of the warrant that you provide the landlord. I do not wish to paint a negative image of the police who do the hard work that most people will never take on, they are after all heros, however, some do not know the law perfectly well especially tenant landlord law. As well, some will try and get away with skirting the law trying to get an important job done. It does happen. I hired a lawyer just last week for an illegal request unrelated to the question here. Addressing the OPs comment: Hello, I believe I misstated the situation a bit in that the locked door in question was for the apartment building and not a tenet's apartment itself. I have edited my question. Does this change anything? Technically, this does not change much of anything, however, the request by the police can be seen as a reasonable one. They just may want to talk to the individual which is reasonable. In this case, I might have let them in if the access I was giving them was to a common space such as a hallway. In this case, the outer door locks are only to keep Intruders from entering the building and not meant to restrict access for valid purposes. Are you in trouble? I would say no. If anyone asks, you can give reasonable arguments for your situation. However, the next time, consider what I have written here. The police have a tough enough time doing their jobs. If you can help and stay within the proper boundaries of what the law allows, that would be best.
No An arrest is the act of detaining a person or property by legal authority or warrant and has been made when a police officer or another individual makes it clear to the person that they are no longer a free person. A person does not need to be physically touched to be placed under arrest as words alone are capable of bringing about an arrest if they establish that the person is no longer a free person. Now, if a LEO asks you to accompany them, then, so long as you have the choice not to, you are not under arrest.