What is a "Consensual" Police Encounter?
Community policing is considered a "pro-active" approach to criminal justice. Police officers randomly approaching citizens, making contact, identifying them, sometimes even pat-searching them, and engaging in what is supposed to be "casual" conversation has been upheld by courts as "consensual encounters" and not violations of the 4th Amendment (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized). They are not considered "detaining" an individual because, as the courts have said, the individual is free to leave or refuse to speak to the police officer. But is that true? Maybe in law, but certainly not in practice.
I want to play “devil’s advocate” here. I am in no way challenging the intentions or character of the police officer in most community contacts with citizens. I agree with a community policing approach, walking up to people at all hours of the night and day just to speak with them—if that's all it is. But let me ask you this question: what IS the reason for approaching random people and just talking to them? Just to be friendly? Perhaps an “ear to the ground” approach in getting to know the beat? I am familiar with the officer’s interpretation “I am just talking to folks, they are free to leave; it’s a consensual encounter.” But is it? How does the person the police are "randomly" approaching feel about it? Let me note a couple of things. While an officer may present, and the citizen is "free to leave," because the officer never "forced them to stay" is a subjective opinion. Courts have increasingly been asking whether or not a “reasonable person felt free to leave the encounter” or does the police encounter suggest to a reasonable person that he is not at liberty to ignore the police encounter and go about his business? I guess only the individual officer can answer that, but the person interviewed gets a say, too. I am asking questions based on my own experiences. I am in no way suggesting all officers abuse this discretion. I know the realities of day to day police work. My goal here is to get a police officer to see it from the citizen side, and get a citizen's perspective.
The U.S. Supreme Court has ruled that officers may approach, ask questions, and ask for consent searches without running afoul of the 4th Amendment, “so long as their conduct does not suggest compliance is required.” What conduct of a police officer would suggest that? Many would disagree that the policeman's uniform, police cruiser, and fully equipped belt complete with a pistol does not suggest compliance is voluntary.
Does the average citizen really feel he is free to walk away from a casual encounter with a police officer, when it's initiated by the police officer? And I want to go back to the question of "Why the contact?" Is he presuming something about me and wants to "check me out?" If so, the police officer's subjective opinion about me is trumping my rights. I resent that as a law-abiding citizen. No law-abiding citizen should feel like they have to allay an officer’s perception that they may be “suspicious.” In law enforcement lingo this is known as a “surplus stop,” or a stop based on “little or flimsy evidence of suspicious behavior.” That is not presumption of innocence, the staple of our justice system.
Research suggests that even low-level police encounters make most citizens feel “they are not free to leave.” I understand that police officers do not like the scrutiny of these "consensual encounters," but scrutiny is not judging. It's examing their merits and intent. I am simply asking questions, from a citizen’s point of view.
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