And Now, A Quiz

Assume you are walking down the street, minding your own business. Coming the other way, or at least on some sort of intercept course, is a police officer. He’s not running or shouting or doing anything exceptional. He walks up to you and says, “hey, pal, can I talk to you for a minute?”

Let’s assume further that you’re in no mood to talk. You’ve had a long day at work and just want to head home and crack open a beer. Or you just had a fight with your girlfriend and you just want to head home and crack open a beer. Or, perhaps, those pre-election poll numbers weren’t so biased after all and you just want to head home, crack open a beer, and dream of 2016. Regardless, you don’t want to deal with anybody on the way home, much less a cop.

So what do you do? More to the point, what do you think you have to do? Can you ignore the cop? Can you say, “sorry, officer, I’m in no mood to talk” and go about your way? Or do you have to stop and talk?

I’m guessing most people figure they have to stop and talk. After all, when a cop asks you to do something, it’s backed up with the authority of the state. He’s got the gun, the night stick, and the handcuffs, after all. Although practically that might be the case, legally it’s not. When it comes to the Fourth Amendment’s protection against unreasonable seizures, the Fourth Circuit explains*:

[t]his guarantee does not extend to all police-citizen encounters. Rather, as the Supreme Court has instructed, ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’ Police-citizen encounters that are consensual require no justification, but those that are not consensual impose a detention on a citizen and so must be supported by an officer's reasonable, articulable suspicion.

As a general matter, law enforcement officers do not effectuate a detention or seizure ‘merely by approaching individuals on the street or in other public places and putting questions to them.’ But, an officer’s authority to initiate an encounter with a citizen rather than detain him is ‘no greater than[ ] the authority of an ordinary citizen to approach another on the street and ask questions.’

Which, of course, begs the question – is any encounter with a cop really “consensual”? Over at Slate’s new crime blog, Justin Peters looks at the issue and generally concludes that there isn’t:

The idea of a consensual encounter is a nice one, conjuring an image of lovers sneaking away for some mutually fulfilling afternoon delight. But, in reality, a police officer who pursues a ‘consensual’ conversation is often just looking to screw you. As Janice Nadler and J.D. Trout note in their fascinating paper ‘The Language of Consent in Police Encounters,’ many consensual engagements are pretexts for less-consensual behavior. ‘The police officer’s main purpose is to get information about what the person is doing, and get permission to do something else, like search their person, house, car, bags, etc.,’ they write.

So it’s bad enough that officers use the consensual loophole as a way to get into (theoretically) more regulated encounters with the populace. But at least they’ve got a good eye for suspicious folks, right? I mean, if people aren’t doing anything wrong, what do they have to hide?

Most people who are stopped by the cops aren’t doing anything illegal. In New York City, for example, the NYPD’s stop-and-frisk policy specifies that cops are only allowed to stop someone if, just like in Florida, they have an articulable suspicion that he or she is involved in criminal activity. But of the 685,724 police stops initiated in 2011, 605,328 of them found absolutely nothing. That’s almost a 90 percent whiff rate. Either the NYPD is staffed by a bunch of Mr. Magoos, or the police are violating the rules of the stop-and-frisk program pretty egregiously. But it’s hard for a citizen to challenge an improper stop and frisk, because any his-word-against-yours system favors the guy with the gun and the badge.

Courts assume, quite incorrectly in my experience, that everyone knows the law and knows their rights. Squishy concepts like whether someone is free to leave police questioning (which determines whether Miranda warnings are given) are examined using a “reasonable person” standard that’s closer to a “reasonable lawyer” (or “reasonable judge”) standard. Most people, when faced with the inherent authority of a police officer, will do whatever he says.

The law needs to catch up with reality when it deals with real world application of Constitutional principles. Reexamining the legal fiction of “consensual” encounters with police would be a good place to start.

*US v. Jones, 687 F.3d 293, 298-299 (4th Cir. 2012)(citations omitted)