Conducting the Investigation
After engaging the suspect and taking appropriate safety measures, officers will ordinarily begin their investigation by asking questions. As the court observed in People v. Manis, “When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning.”91
In addition to such questioning, there are some other investigative procedures that officers may ordinarily utilize without converting the encounter into a detention. But first, we will discuss—actually, reiterate—the all-important subject of the officers’ general attitude.
Respectfulness
Lacking grounds to detain or arrest the suspect, officers must be courteous and demonstrate a respectful attitude. Even if he is a notorious sleaze with a bloated criminal record and a bad attitude, they must be careful not to impose their authority on him, at least until they develop grounds to do so. It doesn’t matter whether they choose to adopt a friendly tone or one that is more businesslike. What counts is that they create—and maintain—a non-coercive environment. As the Court of Appeal explained, “It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.”92
For example, in U.S. v. Jones 93 an encounter quickly became a detention when, upon approaching the suspect, the officers immediately requested that he lift his shirt and consent to a search. Said the court, “A request certainly is not an order, but a request—two back-to-back requests in this case— that conveys the requisite show of authority may be enough to make a reasonable person feel that he would not be free to leave.” And in Orhorhaghe v. I.N.S. the Ninth Circuit ruled that an encounter was converted into a de facto detention mainly because the officer “acted in an officious and authoritative manner that indicated that [the suspect] was not free to decline his requests.”94
In contrast, in Ford v. Superior Court the court ruled that “[a]lthough petitioner was never told in so many words that he was not under arrest or that he was free to leave, that advice was implicit in the sergeant’s apology for the time it was taking to interview other witnesses.” 95 Similarly, the courts have noted the following in ruling that a contact had not degenerated into a de facto detention:
The officer “spoke in a polite, conversational tone.” 96
The officer “seemed to act cordially.”97
His tone “was calm and casual.”98
The conversation was “nonaccusatory.”99
“[A]t no time did [the officers] raise their voices.” 100
Their “tone of voice was inquisitive rather than coercive.”101
To say that officers must be respectful does not mean they may not demonstrate some degree of suspicion. After all, most people are aware that officers do not go around questioning people at random in hopes that they had just committed a crime. Thus, in People v. Lopez, the court noted that, while the officer’s questions “did indicate [he] suspected defendant of something,” and that his questions were “not the stuff of usual conversation among adult strangers,” his tone was apparently “no different from those presumably gentlemanly qualities he displayed in the witness box.”102
Officers may also demonstrate respectfulness if they take a moment to explain to the suspect why they wanted to speak with him, rather than begin by abruptly asking questions or making requests. For example, in rejecting an argument that a DEA agent’s initial encounter with the defendant at an airport terminal had become a de facto detention, the court in U.S v. Gray noted that the agent “informed Gray of the DEA’s purpose and function.”103 Similarly, in U.S. v. Crapser the Ninth Circuit pointed out that the officer began by “explain[ing] to [the suspect] why the police had come to her motel room.” 104
In contrast, in People v. Spicer, officers pulled over a car driven by Mr. Spicer because it appeared that he was under the influence of something.105 While one officer administered the FSTs to Mr. Spicer, the other asked his passenger, Ms. Spicer, to produce her driver’s license. Although he had good reason for wanting to see the license (to make sure he could release the car to her) he did not explain this. As Ms. Spicer was looking for her license in her purse, the officer saw a gun and arrested her. But the court ruled the gun was seized illegally mainly because the officer’s blunt attitude had effectively converted the encounter into a de facto detention. Said the court, “Had the officer made his purpose known to Ms. Spicer, it would have substantially lessened the probability his conduct could reasonably have appeared to her to be coercive.”
Requesting ID
Before attempting to confirm or dispel their suspicions, officers will almost always ask the suspect to identify himself, preferably with a driver’s license or other official document. Like a request to stop, a request for ID will not convert an encounter into a seizure unless it was reasonably interpreted as a command.106 As the Supreme Court put it, “[N]o seizure occurs when officers ask . . . to examine the individual’s identification—so long as the officers do not convey a message that compliance with their requests is required.”107 Similarly, the Court of Appeal explained:
It is the mode or manner in which the request for identification is put to the citizen, and not the nature of the request that determines whether compliance was voluntary.108
Even if the suspect freely handed over his license or other identification, a seizure might result if the officer retained it after looking it over. This is mainly because, having examined the suspect’s ID, the officer’s act of retaining it could reasonably be interpreted as an indication that he was not free to leave.109 As the Ninth Circuit put it, “When a law enforcement official retains control of a person’s identification papers, such as vehicle registration documents or a driver’s license, longer than necessary to ascertain that everything is in order, and initiates further inquiry while holding on to the needed papers, a reasonable person would not feel free to depart.”110 For example, the courts have ruled that a detention resulted when an officer did the following without the suspect’s consent:
took his ID to a patrol car to run a warrant check.111
kept the ID while conducting a consent search.112
pinned the ID to his uniform.113
Asking Questions
Although officers may pose investigative questions to the suspect,114 questioning can be problematic if, as often happens, the suspect’s answers are vague, nonresponsive, inconsistent, or nonsensical as this will necessarily prolong the encounter and may cause the officers to become frustrated which, in turn, may cause them to act in an aggressive or authoritative manner.115 As the Tenth Circuit noted, “Accusatory, persistent, and intrusive questioning can turn an otherwise voluntary encounter into a coercive one.”116 Although the line between permissible probing and impermissible pressure can be difficult to detect, the following general principles should be helpful.
INVESTIGATIVE VS. ACCUSATORY QUESTIONING
There is a big difference between investigative and accusatory questions. As the name suggests, accusatory questions are those that are phrased in a manner that communicates to the suspect that the officers believe he is guilty of something, and that their objective is merely to confirm their suspicion. While this type of questioning is appropriate in a police interview room, it is strictly prohibited during contacts. As the Court of Appeal observed:
[Q]uestions of a sufficiently accusatory nature may by themselves be cause to view an encounter as a nonconsensual detention. . . . [T]he degree of suspicion expressed by the police is an important factor in determining whether a consensual encounter has ripened into a detention.117
For example, in Wilson v. Superior Court, LAPD narcotics officers at LAX received a tip that comedian Flip Wilson would be arriving on a flight from Florida and that he would be transporting drugs.118 When one of the officers spotted Wilson in the terminal, he approached him and, according to the officer, “I advised Mr. Wilson that I was conducting a narcotics investigation, and that we had received information that he would be arriving today from Florida carrying a lot of drugs.” Wilson then consented to a search of his luggage in which the officers found cocaine.
In a unanimous opinion, the California Supreme Court suppressed the drugs because the encounter had become an illegal de facto detention when Wilson gave his consent. Said the court, “[A]n ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer.”
In contrast to accusatory questioning, investigative inquiries convey the message that officers are merely seeking information or, at most, are exploring the possibility the suspect might have committed a crime. In other words, while such questioning is “potentially incriminating,” it is also potentially exonerating.119 For example, in U.S. v. Kim, a DEA agent approached two suspected drug dealers on an Amtrak train and greeted them with, “You guys don’t have drugs in your luggage today, do you?”120 One of the men, Kim, consented to a search of his luggage in which the agent found methamphetamine. In rejecting Kim’s argument that the agent’s question rendered the encounter a seizure, the court said, “[t]he tone of the question in no way implied that [the agent] accused or believed that Kim had drugs in his possession; it was merely an inquiry.”
PERSISTENCE
If the suspect agreed to answer the officers’ questions (and, again, assuming he was guilty), officers will often be unable to obtain the truth unless they are persistent. But persistence, in and of itself, will not render an encounter a detention. For example, in United States v. Sullivan, a U.S. Parks police officer contacted Sullivan and asked him “if he had anything illegal in [his] vehicle.”121 Sullivan hesitated, then asked “illegal”? The officer repeated the question, at which point Sullivan “turned his head forward and looked straight ahead.” The officer persisted, telling Sullivan that “if he had anything illegal in the vehicle, it’s better to tell me now.” Still no response. Eventually, Sullivan admitted “I have a gun” and, as a result, he was convicted of being a felon in possession of a firearm. In rejecting Sullivan’s argument that the officer’s persistent questioning had converted the contact into a seizure, the court said, “[T]he repetition of questions, interspersed with coaxing, was prompted solely because Sullivan had not responded. They encouraged an answer, but did not demand one.”
On the other hand, a seizure will certainly result if officers persisted in asking questions after the suspect made it clear that he wanted to discontinue the interview. For example, in Morgan v. Woessner, the court ruled that baseball star Joe Morgan was unlawfully seized at Los Angeles International Airport when an LAPD narcotics officer continued to question him after Morgan had “indicated in no uncertain terms that he did not want to be bothered.” Said the court, “We find that Morgan’s unequivocal expression of his desire to be left alone demonstrates that the exchange between Morgan and [the officer] was not consensual.”122
LENGTHY QUESTIONING
Because contacts are usually brief, the length of the encounter is seldom a significant issue.123 But lengthy questioning will not ordinarily convert a contact into a seizure so long as the suspect continued to express—explicitly or implicitly—his willingness to assist officers in their investigation. An example is found in an Oakland murder case, Ford v. Superior Court.124 Here, a contact with a “witness” to a murder (who was actually the murderer) began at the crime scene and ended with his arrest twelve hours later in a police interview room. Despite the length, the court ruled the encounter had remained consensual throughout because the suspect “deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence,” and the officers merely played along until they had probable cause.
MIRANDA WARNINGS
If an encounter is merely a contact, officers should never Mirandize the suspect before asking questions.125 This is mainly because Miranda warnings are commonly associated with arrests and, furthermore, they are likely to be interpreted as an indication that the officers have evidence of the suspect’s guilt.
“YOU’RE FREE TO DECLINE”
Just as officers are not required to inform suspects that they are free to leave (discussed earlier), they need not inform them that they can refuse to answer their questions.126 Still, it is a highly relevant circumstance.127
Warrant checks
Running a warrant check without the suspect’s consent will not automatically result in a detention.128 But it can be problematic, especially if the officer walks off with his ID to run the warrant check on his radio or in-car computer. For example, in U.S. v. Jones, the court said that “[w]ithin thirty seconds” after initiating a contact with Jones, the officer asked for some identification. At that point, “Mr. Jones handed his identification to [the officer], who relayed it to [another officer who] then walked back to his patrol vehicle to run Mr. Jones’s license.” “Mr. Jones was seized,” said the court, “once the officers took [his] license and proceeded to conduct a records check based upon it.”129
In contrast, the court in U.S. v. Analla ruled that a detention did not result because, instead of taking the suspect’s license to his patrol car, the officer “stood beside the car, near where Analla was standing.”130 Note that this issue can usually be avoided if officers obtain the suspect’s consent to temporarily carry his ID a short distance for the purpose of running a warrant check.131
Seeking consent to search
Officers who have contacted a suspect will frequently seek his consent to search his person, possessions, or vehicle. Like any other request, this will not convert the encounter into a seizure if the officers neither pressured the suspect nor asserted their authority.132 But if the suspect declines the request, they must, of course, not persist or otherwise encourage him to change his mind.
For example, in United States v. Wilson, a DEA agent approached Albert Wilson at the National Airport terminal in Washington, D.C. and asked to speak with him.121 At first, Wilson was cooperative. But when the agent asked if he would consent to a search of his coat he angrily refused and began walking away. Undeterred, the agent trailed behind him, repeatedly asking Wilson why he would not consent to a search. As they stepped outside the terminal, Wilson bolted but was quickly apprehended. The agents then searched his coat and found cocaine. On appeal, however, the court ordered it suppressed because the agent’s “persistence” had converted the encounter into a seizure. It should also be noted that, although officers are not required to notify the suspect that he has a right to refuse consent, such a warning is a relevant circumstance.134, 135
Seeking consent to transport
In some cases, officers will seek the suspect’s consent to accompany them to some location such as a police station (e.g., for questioning, fingerprinting, a lineup) or to the crime scene (e.g., for a showup). Again, such a request will not convert the encounter into a detention so long as officers made it clear to the suspect that he was free to decline.136
For example, in In re Gilbert R., LAPD detectives went to Gilbert’s home to see if he would voluntarily accompany them to the police station to answer some questions about an ADW. Both Gilbert and his mother consented.137 At the station, Gilbert confessed but later argued that his confession should have been suppressed because the officers had effectively arrested him by driving him to the station. In rejecting the argument, the court said that a reasonable person in Gilbert’s position “would have believed that he or she did not have to accompany the detectives.”
In contrast, in People v. Boyer, several Fullerton police officers went to Boyer’s home to question him about a murder.138 Two of them covered the back yard while the others went to the front door and knocked. Boyer responded by running out the back door, where the officers ordered him to “freeze.” He complied and later agreed to be interviewed at the police station where he made an incriminating statement. But the court suppressed it on grounds the consent was involuntary. Said the court, “[The] manner in which the police arrived at defendant’s home, accosted him, and secured his ‘consent’ to accompany them suggested they did not intend to take ‘no’ for an answer.”
One other thing
Before transporting a suspect to a police station or anywhere else, officers may be required by departmental policy or officer-safety considerations to pat search him even though he is not being detained. As discussed earlier, this will not ordinarily convert the encounter into a detention provided that the suspect freely consented to the intrusion.
Converting Detentions Into Contacts
In the course of detaining a suspect, officers may conclude that, although they still have their suspicions, they no longer have grounds to hold him. At that point, the detention must, of course, be terminated. Nevertheless, they may be able to continue to question him if they can effectively convert the detention into a contact. As the Tenth Circuit said, “[I]f the encounter between the officer and the [suspect] ceases to be a detention but becomes consensual, and the [suspect] voluntarily consents to additional questioning, no further detention occurs.”139
What must officers do to convert a detention into a contact? The cases indicate there are three requirements:
Return documents: If officers obtained the suspect’s ID or any other property from him, they must return it.140 Again quoting the Tenth Circuit, “[W]e have consistently concluded that an officer must return a driver’s documentation before a detention can end.”141 Also see "Requests for ID," above.
“You’re free to go”: While not technically a requirement,142 officers should inform the suspect that he is now free to leave.143 As the court explained in Morgan v. Woessner, “Although an officer’s failure to advise a citizen of his freedom to walk away is not dispositive of the question of whether the citizen knew he was free to go, it is another significant indicator of what the citizen reasonably believed.”144
No contrary circumstances: There must not have been other circumstances that, despite the “free to go” advisory, would have reasonably indicated to the suspect that he was, in fact, not free to leave. For example, in U.S. v. Beck, the court ruled that a suspect was detained because, although he was told he was free to go, he was also told he could not leave unless he consented to a search or waited for a canine unit to arrive.145 Similarly, in U.S. v. Ramos, the court ruled that an attempt to convert a traffic stop into a contact had failed mainly because the driver and passenger remained separated.146
In addition to these three requirements, it would be significant that the officers explained to the suspect why they wanted to continue speaking with him. As discussed earlier in the section entitled “Respectfulness,” a brief explanation of this sort is significant because such openness is more consistent with a contact than a detention, and it tends to communicate the idea that the officers are seeking the suspect’s voluntary cooperation.147
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