OK, I read the opinion. Thank you for the link. It is not so bad; in fact, the guy won against the cops on most of the issues. I’ll analyze briefly.
1. The case was on an appeal from a motion to dismiss granted by the Circuit Court. Basically, the police department got the district Court judge to toss it right after it was filed.
2. The Court of Appeals said the district court was wrong and now the case can go forward as the facts alleged are sufficient;
3. The plaintiff is a long way from winning the case, but,
4. The facts alleged are sufficient, that if proven, show the police violated this man’s 4th Amendment rights by stopping him without reasonable suspicion;
5. Because they had no reasonable suspicion for the initial stop, any police conduct therafter was unlawful;
6. The Court did say he didn’t have a 5th Amendment right against self-incrimination, but I’m not entirely comfortable with that. I discussed it more below.
7. The Court did rule against the guy on his retaliation claim, that the police “punished” him in retaliation of his exercise of 5th Amendment rights (since they said they were not implicated to begin with);
So all in all, other than where I disagree with them on the 5th Amendment issue, the case does not appear to permit excessive police misconduct. In fact, this one is overall a win for civil rights against the police.
PS: On further review, regarding the 5th Amendment privilege and not being in custody, it’s probably factually better to look at it as a 4th Amendment issue than a 5th Amendment issue. If the police approach you and ask you a question, you don’t have the 5th Amendment implicated at that point. You are not seized under the 4th Amendment, so you are “free to go.” You can just smile, say “excuse me” and go about your business. Once the police say “wait a minute” and stop you, you ask “am I under arrest? Why are you stopping me?” If they don’t have an answer, you say “thank you have a nice day” and walk away.
I do believe the police cannot create a reasonable suspicion because you decline to speak to them in a consensual encounter.
PS: On further review, regarding the 5th Amendment privilege and not being in custody, it’s probably factually better to look at it as a 4th Amendment issue than a 5th Amendment issue. If the police approach you and ask you a question, you don’t have the 5th Amendment implicated at that point. You are not seized under the 4th Amendment, so you are “free to go.” You can just smile, say “excuse me” and go about your business. Once the police say “wait a minute” and stop you, you ask “am I under arrest? Why are you stopping me?” If they don’t have an answer, you say “thank you have a nice day” and walk away.
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Just to clear things up they can temporarily detain a person without putting them under arrest. The key question to ask, which you stated is, “am I free to go?”