Engaging the Suspect
Regardless of why the officers wanted to contact the suspect—whether he was acting suspiciously, or he resembled a wanted fugitive, or he was just hanging out in a high-crime area—the manner in which they get him to stop and talk to them is critical. This is because the usual methods of stopping a suspect constitute such an assertion of police authority that they automatically result in a seizure. As the Supreme Court put it, a seizure is likely to occur if an officer’s “use of language or tone of voice indicat[ed] that compliance with the officer’s request might be compelled.”34
Commands to Stop
Commanding a suspect to “stop,” “hold it,” “come over here,” or otherwise make himself immediately available to the officer is such an overt display of police authority that it will automatically render the encounter a de facto detention.35 “[W]hen an officer ‘commands’ a citizen to stop,” said the Court of Appeal, “this constitutes a detention because the citizen is no longer free to leave.”36
Requests to Stop
Unlike a command to stop, a request to do so demonstrates to the suspect that he has a choice and that the officer is not asserting his authority. For example, the courts have ruled that none of the following requests resulted in a detention: “Can I talk to you for a moment?”37 “Hey, how you doing? You mind if we talk?”38 “Gentlemen, may I speak with you just a minute?”39
The courts are aware, however, that an officer’s manner and tone of voice in making such a request may send an implicit message that the suspect has no choice. As the court explained in People v.Franklin:
[I]f the manner in which the request was made constituted a show of authority such that [the suspect] reasonably might believe he had to comply, then the encounter was transformed into a detention 40
For example, in U.S. v. Buchanon a state trooper who had stopped to assist the occupants of a disabled vehicle started thinking they might be transporting drugs, at which point he said, “Gentlemen, why don’t you all come over here on the grass a second if you would please.” Although the trooper’s words were phrased as a request,the court listened to a recording of the incident and concluded that his tone of voice was “one of command.”41
Demonstrating Urgent Interest
A request to stop might be deemed a detention if it was accompanied by one or more circumstances that demonstrated an unusual or urgent interest in the suspect.42 This occurred in People v. Jones when an Oakland police officer engaged three suspects by pulling his patrol car to the wrong side of the road, parking diagonally against traffic, then asking them to stop. Said the court, “A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic.”43
Approaching and Asking Questions
A detention will not result if an officer merely walks up to a suspect, flashes a badge or otherwise identifies himself and— without saying or doing anything to indicate the suspect was not free to leave—begins to ask him some questions.44 As the court observed in People v. Derello, “[T]he officers were doing exactly what they were lawfully entitled to do, which is to approach and talk if the subject is willing.”45
Red Lights
Shining a red light at a moving or parked vehicle is essentially a command directed at the driver to stop or stay put and thus necessarily results in a seizure of the driver if he complies.46 As the Court of Appeal noted, “A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer.”47
Although a red light constitutes a command to only those people to whom it reasonably appeared to have been directed (usually the driver),48 when an officer lights up a vehicle all passengers are also deemed detained. This is because they know that, for officer-safety purposes, the officer may prevent them from leaving the vehicle and may otherwise restrict their movements while he is dealing with the driver. As the Supreme Court explained in Brendlin v. California, “An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely.”49 Such a detention of the passengers is, however, legal so long as the officer had grounds to detain the driver or other occupant.
Spotlights, High Beams, and Amber Lights
Using a white spotlight or high beams to get the suspect’s attention is a relevant but usually insignificant circumstance. (This subject is covered below in the section “Officer-Safety Measures.”) Also note that because an amber warning light is a safety measure that is directed at approaching motorists, it has no bearing on whether the suspect was detained.50
Blocking the Suspect's Path
A detention will ordinarily result if officers stop the suspect by blocking his vehicle or path so as to prevent him from leaving.51 For example, in People v. Wilkins 52 a San Jose police officer was driving through the parking lot of a convenience store when he noticed that two men in a parked station wagon had ducked down as if to conceal themselves. Having decided to contact them, the officer “parked diagonally” behind the vehicle, effectively blocking it in. He soon learned that one of the men, Wilkins, was on searchable probation, so he searched him and found drugs. The court, however, ruled that the search was unlawful because “the occupants of the station wagon were seized when [the officer] stopped his marked patrol vehicle behind the parked station wagon in such a way that the exit of the parked station wagon was prevented.”
A detention will not result, however, merely because officers stopped a patrol car behind a pedestrian or to the side of a vehicle. As the court explained in People v. Franklin, “Certainly, an officer’s parking behind an ordinary pedestrian reasonably would not be construed as a detention. No attempt was made to block the way.” 53 Similarly, the courts have ruled that a seizure does not result when an officer only partially blocked the suspect.54 For example, in U.S. v. Basher the Ninth Circuit ruled that, although an officer testified that he “parked his vehicle nose to nose with Basher’s truck,” this did not constitute a detention because the officer also testified that “there was room to drive way.”55 And in a forfeiture case, U.S. v. $25,000, the court ruled that two DEA agents had not inadvertently detained a person they spoke with at LAX because, among other things, one of the agents stood “about two feet” in front of the suspect, and the other stood “behind and to the side” of him.56
“You're Free to Go”
The easiest and most direct method of communicating to a suspect that he is free to go is to say so.57 Although such a notification is not required,58 it is recommended, especially in close cases. As the Court of Appeal put it, “[T]he delivery of such a warning weighs heavily in favor of finding voluntariness and consent.”59
When giving a “free to go” advisory, however, officers must not place any conditions or restrictions on the suspect’s freedom to leave. This is because a suspect is either free to go or he’s not; there’s no middle ground. For example, despite such an advisory, the courts have ruled that encounters became detentions when an officer told the suspect that he would have to wait for a K9 to arrive,60 or “wait a minute,”61 or remain in the patrol car while the officer talked to another person.62 Similarly, informing a suspect that he is free to go will have little impact if officers conducted themselves in a manner that reasonably indicated he was not; e.g., the officer used a “commanding tone of voice,”63 the officer kept “leaning over and resting his arms on the driver’s door.”64
Location of the Encounter
The courts frequently mention whether the encounter occurred in a place that was visible to others, the theory being that the presence of potential witnesses might provide the suspect with a greater sense of security.65 For example, the courts have noted in passing that “many fellow passengers [were] present to witness the officers’ conduct,”66 “the incident occurred on a public street,”67 “the encounter here occurred in a public place—the parking lot of a [7-Eleven] store— in view of other patrons.”68 Nevertheless, the fact that a contact occurred in a more isolated setting is seldom a significant circumstance. As the Third Circuit observed, “The location in itself does not deprive an individual of his ability to terminate an encounter; he can reject an invitation to talk in a private, as well as a public place.”69
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