Chapter 04: Consensual Encounters: The “Nonseizure” LawTech Custom Publishing, Inc. Copyright 2010

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Consensual Encounters Defined Consensual Encounters Defined  If police avoid commands and intimidation, they can lawfully approach individuals in public and attempt to engage them in consensual conversations and observations, and no seizure has occurred.  The key for police officers is to avoid the use of any commands, hand gestures, blocking of access or egress, drawn weapons, use of force, touching, sirens or colored lights, whistles or other official controls to indicate to the person that he or she must comply with the officer’s wishes.  Related Case Law: Terry v. Ohio, Illinois v. Lidster, and US v. Mendenhall

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters  In a typical consensual encounter, a police officer engages the person in conversation; however, the person would be free to ignore the officer, or to turn and walk away.  Any observations the officer makes as to the person such as manner of speech, nervousness, constricted or dilated pupils, odors, tattoos, and/or injection tracks will not have been the result of any seizure, and cannot be suppressed on Fourth Amendment grounds.

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters  The Supreme Court has applied the concept of consensual encounters in the following settings: 1.Transportation and Terminal Consensual Encounters  Narcotics smugglers and other criminals often use public transportation such as airports and bus and train terminals to facilitate their crimes or escapes. (A consensual encounter does not require any justification, but it must be purely voluntary on the individual’s part.)

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters  Consensual encounters can occur at airports, on trains and buses, on the street, and in any other public place.  As long as officers do not resort to commands or intimidating tactics that convert the encounter into a detention or arrest, there will be no Fourth Amendment violation.  Related Case Law: US v. Mendenhall, Florida v. Rodriguez, and Florida v. Bostick

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters 2.Pedestrian Encounters  An officer can walk up to a person who is standing on a street corner, sidewalk, parking lot or other public place and begin a conversation and no Fourth Amendment seizure has occurred.  Officers intending to confine an initial contact to a consensual encounter should not retain the suspect’s ID or other property after a brief consensual inspection.  Related Case Law: Florida v. Royer, and US v. Mendenhall

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters  Parked Vehicles  If an occupied vehicle is parked in a place open to the public, officers can walk up to the vehicle and attempt a consensual encounter. 3.The “Rolling Encounter”  Police can engage in a rolling consensual encounter by driving behind or alongside a pedestrian or motorist without displaying emergency lights, sirens, weapons or other means of commanding the person to stop.

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters 3.The “Running Encounter”  A running consensual encounter occurs when a pedestrian flees from police. 4.Knock and Talk  Police officers could lawfully go onto a porch or entryway where any member of the public routinely has access and seek a consensual interview at the doorway.  Related Case Law: Fellers v. US

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Typical Encounters Typical Encounters 4.Citizen Contacts and Safety Checks  Police officers have many reasons for contacting people besides interacting with criminal suspects such as locating and questioning witnesses, searching for missing persons, and aiding those in distress.  Related Case Law: Terry v. Ohio

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Temporary Detentions Distinguished Temporary Detentions Distinguished  If a reasonable, innocent person would have felt free to disregard the police officer, the exchange between that person and police remains a consensual encounter, requiring no justification. (Feel Free to Leave) Scope of Activity Scope of Activity  A demand for ID or retention of ID voluntarily produced, a non-consensual pat-down, or physically blocking the person’s way would cause the encounter to lose its consensual nature and require reasonable suspicion.

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Request for ID Request for ID  A police officer can request ID during a consensual encounter and it does not amount to a detention. Request for Consent to Search Request for Consent to Search  During a consensual encounter, an officer may request consent to search; however, the person has the right to refuse to consent to a search, it is not constitutionally necessary for police to advise him or her of this fact.

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Observable Physical Attributes Observable Physical Attributes  During a consensual encounter, an officer may take note of the person’s observable physical attributes such as a person’s demeanor, speech, manner of dress, eye movements, restricted or dilated pupils, visible injection sites, distinguishing scars or tattoos, approximate height and weight, and facial features.

Investigative Constitutional Law Chapter 4: Consensual Encounters: The “Nonseizure” Investigative Advantages of Consensual Encounters Investigative Advantages of Consensual Encounters  There are legal advantages to attempting a consensual encounter instead of prematurely initiating a detention such as to ask questions, request ID, request consent to search and make observations of the suspect’s appearance and demeanor.  The result of these permissible activities could be either the clearance of the suspect, or the justifiable development of reasonable suspicion or probable cause.