Presumption Problems in Consensual Encounters
Traditionally, the law has divided interactions between citizens and police into three types: consensual encounters, investigative detentions, and arrests. In order to initiate these interactions, police require increasing levels of suspicion of criminal activity, and these distinctions are the basis for differing levels of protections under the Fourth Amendment.
A police officer may initiate a consensual encounter even in the absence of any suspicion that a crime has been committed or is about to be committed. As a corollary to this, the citizen is under no obligation talk with the officer. Indeed, courts often observe that citizens are within their rights not to talk to the police during a consensual encounter, and the Ohio Supreme Court recently held (correctly) that citizens are free to run away from consensual encounters if they are so inclined. However, it takes little imagination to understand why the presumption underlying this category is incorrect.
First, while citizens have a constitutional right to terminate a consensual encounter, a police officer’s reaction to the termination of such an encounter is unlikely to be favorable. The Ohio Supreme Court case just mentioned is illustrative, and the reaction of the police officers was predictable: they chased down, handcuffed, and frisked the defendant, then placed him in a police cruiser. In light of recent events, it does not strain credibility to suggest that the encounter could have ended much worse for the defendant.
Second, and more importantly from a doctrinal point of view, police officers use the termination of a consensual encounter as reasonable suspicion to escalate the interaction into an investigative detention, which reviewing courts then analyze under a totality of the circumstances test that operates in practice as a fait accompli.
As a result, the invocation of a constitutional right becomes the basis for further invasion of that right, a problem I’ve previously written about in the context of no-refusal DWI checkpoints.
This raises several problems for the state of the law on Fourth Amendment protections in the case of consensual encounters. Most simply, it presumes that consensual encounters have a voluntary nature that they lack in practice.
Moreover, whether a citizen is engaged in a consensual encounter or an investigative detention is dependent on the subjective beliefs of the investigating officer, and a citizen who attempts to terminate what he believes is a consensual encounter that the investigating officer believes is an investigative detention risks rough treatment by the investigating officer, arrest and charges for resisting arrest, or worse.
A citizen’s inability to confidently determine the nature of the interaction, and the seeming lack of knowledge on the part of police about the existence of such a constitutional category, chills the exercise of Fourth Amendment rights. Finally, when police ignore the fact that the Constitution requires the possibility of consensual encounters, in combination with the way courts formulate reasonable suspicion under a totality of the circumstances test, police are able to use invocation of that right as a justification for further limitation of that right, which raises a host of further problems.
Patrick Luff is a highly respected attorney with over 25 years of experience in the practice of law. He specializes in areas such as business litigation, real estate, and trust and estates planning. Patrick is dedicated to providing quality legal services to his clients and is committed to finding practical and successful solutions to their legal issues. He is a respected member of the legal community and is committed to upholding the highest standards of professionalism.
Loading...