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First Amendment (“Cop”) Audits

By J. Brooks Davis

I have been following the so called First Amendment or “cop” audit videos with interest for several months. These videos are popular on social media and are generally of a citizen or citizens recording an encounter with law enforcement. Perhaps the most infamous and annoying of these is the “free inhabitant of the earth” video. See https://www.youtube.com/watch?v=HQKxPYPn4Eo. In this video a woman vehemently protests the detention of her friend for driving without a license. It isn’t clear what the reason was for initiation the traffic stop. The woman states that under Article IV of the Articles of Confederation the detainee is a “free inhabitant of the earth” and not required to possess a driver’s license while operating a motor vehicle on a public highway. She then refuses to exit the vehicle at the officer’s request under the same theory. I have also heard of people invoking a similar argument by stating they are not driving, rather they are “traveling”. Traveling may apply to any passengers of a moving vehicle, but certainly not the driver.

What this young woman is referring to is properly known as the “Privileges and Immunities Clause”, Article IV, Section 2 of the Constitution of the United States. The Article states “. . . the citizens of each state shall be entitled to all privileges and immunities of the citizens in the several states.”

The purpose of the clause is to protect fundamental rights of citizens and to restrain state efforts to discriminate against out-of-state citizens. This clause is founded on Article IV of the Articles of Confederation which states “. . . to secure and perpetuate mutual friendship and intercourse among the people of the different States in the Union, the free inhabitants of each of these States . . . shall be entitled to all free citizens in the several States; and the people of each State shall ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof.”

Firstly, the Articles of Confederation were superseded by the Constitution of the United States and have little legal authority as the Constitution reigns supreme as the “law of the land”. The only enforceable provisions of the Articles are those parts which have not been superseded by the Constitution. Secondly, nowhere in either the Articles of Confederation or the Constitution of the United States is a “free inhabitant of the earth” ever mentioned. The purpose of the clause and the Article is to allow citizens of one state of the United States to move about the country freely and enjoy the same fundamental rights in one state as in any other. In other words, you are a free inhabitant of the United States, but not the earth. If you are availing yourself to the resources of any of the United States, then you are subject to their laws. In other words, the woman’s argument of being a “free inhabitant of the earth” is nonsensical and exceeds the boundaries of ridiculousness.

Now that we have established the invalidity of Article IV of the Articles of Confederation argument, what’s next?

Can the police order the occupants of the vehicle to exit the vehicle? Yes. This decision was held in Pennsylvania v. Mimms, 434 U.S. 106 (1977). In this case the Supreme Court of the United States held the order to vacate the vehicle, issued after the detainee was lawfully detained, was reasonable and permissible under the Fourth Amendment in that the intrusion upon the detainee’s personal liberty was a “minimal and reasonable intrusion” to the detainee and subservient to the interests of officer safety. The only defense to this is to claim you were not lawfully detained law enforcement has a great deal of discretion in this country.

Can the police perform a warrantless search of your vehicle? Yes. This is commonly referred to as the “Carroll Doctrine” after Carroll v. United States, 267 U.S. 132 (1925). Under the Carroll Doctrine, two requirements must be met for a valid vehicle search without a warrant. First, there must be probable cause to believe that evidence of a crime or contraband is located in the vehicle to be searched. This is usually determined by an object in plain sight of the officer such as drug paraphernalia or the odor of drugs or alcohol. The second requirement is that the vehicle be “readily mobile”. This does not mean that the vehicle in question must be moving at the time it is encountered, only that that is is capable of ready movement. If the police decide to search your vehicle without a warrant or your permission, you may ask them to specify the probable cause under which they are acting. If it is later determined that there was no probable cause to search the vehicle, any evidence found in the search may be suppressed as a violation of the Search and Seizure provisions of the Constitution of the United States. The police may also lawfully conduct a “wingspan” search of the interior of the vehicle, or a search of any areas accessible to the occupants where a weapon may be present for their own safety.

Can the police demand your driver’s license at a traffic stop? Yes. Section 56-1-190 of the South Carolina Code of Laws states the following.

“A licensee shall have his license in his immediate possession at all times when operating a motor vehicle and shall display it upon demand of an officer or agent of the Department of Motor Vehicles or the Department of Public Safety or a law enforcement officer of the State.” Driving is privilege, not a right, and law enforcement may order you to produce a driver’s license to show you are operating your vehicle in accordance with state law.

Lastly, can an officer detain you on the street and order you to identify yourself? Let’s take this in two parts. Firstly, under Terry v. Ohio, 392 U.S.1 (1968), the police may detain and search you if a reasonable prudent man would be warranted in believing a person may be armed and present a threat to officer safety while the officer is conducting an investigation premised on “reasonable suspicion”. What is reasonable suspicion? Terry v. Ohio holds that reasonable suspicion may be inferred from “the specific reasonable inferences which he (the officer) is entitled to draw from the facts in light of his experience.” Reasonable suspicion is the broadest and most vague authority to perform a warrantless search and this the most easily defended argument.

Secondly, you are under no legal obligation to identify yourself or present any form of identification to a police officer if you are ordered to do so. There are no “stop and identify” statutes in South Carolina. The most applicable statute to this situation would be Section 16-5-50 of the South Carolina Code of Laws, “Penalty for hindering officers or rescuing prisoners”. The relevant language in the statute states the following.

“Any person who shall (a) hinder, prevent, or obstruct any officer or other person charged with the execution of any warrant or other process issued under the provisions of this chapter in arresting any person for whose apprehension such warrant or other process may have been issued . . . shall be subject to a fine of not more than three hundred dollars or imprisonment for not more than three years, or both, at the discretion of the court having jurisdiction.”

In other words, unless a warrant or other process has been issued and you are under custodial arrest you have no obligation to identify yourself to the police or provide them with any form of identification.

Let’s take another look at the Free Inhabitant video intelligently.

Is the woman a “free inhabitant of the earth” under Article IV of the Articles of Confederation? No. Article IV of the Articles of Confederation was superseded by Article IV, Section 2 of the of the Constitution of the United States. Nowhere in either document is any mention of a free inhabitant of the earth. Rather if you are a citizen of the United States, the fundamental rights you enjoy in your one state must be honored by any of the other several states.

Was to officer lawfully authorized to remove the woman from the vehicle? Yes, under Pennsylvania v. Mimms.

Was the officer lawfully authorized to order the driver present his driver’s license? In South Carolina, yes, under Section 56-1-190 of the South Carolina Code of Laws.

Was the officer lawfully authorized to order the woman to identify herself and present a form of identification? In South Carolina, no.

Can the police lawfully stop and detain you in South Carolina? Yes, so long as the officer can articulate reasonable suspicion that criminal activity was afoot or the detainee may pose a danger to other persons per Terry v. Ohio.

Can the police lawfully order you to identify yourself or produce identification if you aren’t operating a motor vehicle? No unless you are in custodial detention per Section 16-5-50 of the South Carolina Code of Laws.

Know your rights, don’t guess. If you are confronted by a law enforcement officer whether on the street or in your vehicle, be courteous, respectful and compliant. The proper venue to argue is the courtroom in front of a judge, not at the side of the road with a police officer.