Overview
Hey, how you doing? You mind if we talk?
There is a wide range of contacts that law enforcement officers make with citizens. Depending on the nature of the contact, an officer's constitutional justifications necessary to make contact can range from no constitutional justification to probable cause to believe that the citizen committed a crime. In this section, we are addressing contacts that do not require any constitutional justification (i.e., neither reasonable suspicion nor probable cause is required). In other words, these contacts do not implicate a citizen's 4th Amendment rights.
A Brief Introduction From the Federal Lawful Enforcement Training Centers
A Fourth Amendment "Seizure"
Not all interactions between law enforcement officers and citizens amount to a "seizure" under the Fourth Amendment. Some encounters are purely voluntary. When an officer's encounter with a citizen is completely consensual, the Fourth Amendment does not apply. However, words and actions on an officer's part may convert a voluntary, consensual contact into a "seizure." It is also important for law enforcement officers to understand exactly when an individual is "seized" for purposes of the Fourth Amendment.
A person is "seized" when either of two situations occurs: 1) police make a show of authority and a reasonable person would not feel free to leave or otherwise terminate the encounter; or, 2) police intentionally apply force upon a person with the intent to stop that person's freedom of movement. The latter is a seizure even if the person does not submit to the officer and is not subdued by the officer. A seizure occurs from the moment force is applied.
Property is "seized" when there is some meaningful governmental interference with an individual's possessory interest in that property.
Police-Citizen Encounters
There are three types of police-citizen encounters:
a consensual encounter (also known as investigative contacts);
an investigative detention or "Terry stop;" and
an arrest.
Only the Terry stop and the arrest are Fourth Amendment "seizures." The Fourth Amendment applies only when a "seizure" occurs.
Consensual Encounters
A consensual encounter (or "investigative contacts") with a citizen is a brief, voluntary encounter between a law enforcement officer and an individual. An encounter is consensual if a reasonable person feels entitled to terminate it and leave at any time. This type of contact is not a "seizure" and therefore is not subject to the Fourth Amendment.
When conducting a consensual encounter, the officer may take any or all of the following actions without turning the contact into a "seizure." First, the officer may approach an individual and ask questions, even incriminating questions. Second, the officer may request—but not demand—to see an individual's identification. Third, the officer may identify him or herself and display credentials. Fourth, the officer may seek consent for a search or a frisk.
In contrast, the officer might take actions during an encounter that could change the nature of the contact into a "seizure." A court will scrutinize the officer's actions during a voluntary contact to determine whether the encounter became a "seizure." Among the factors courts will examine to determine whether a contact is a seizure include:
The time, place, and purpose of the encounter;
The words the officer uses;
Language or tone of voice indicating that compliance with the officer's request is mandatory;
The number of officers present;
Whether the officer displays a weapon;
Any physical touching of the individual and amount of force used;
Retention of the individual's identification or personal property;
Whether the officer notified the individual of the right to end the encounter (though this is not a requirement for voluntary contacts).
Consensual Encounters in Practice
One of the interesting things about contacts is that they usually pose a dilemma for both the suspect and the officer. For the suspect (assuming he’s guilty) the last person on earth he wants to chat with is someone who carries handcuffs. But he also knows that his refusal to cooperate, or maybe even a hesitation, might be interpreted as confirmation that he is guilty. So he will ordinarily play along for a while and see how things go, maybe try to outwit the officer or at least make up a story that is not an obvious crock.
Meanwhile, the officer knows that, while his badge might provide some “psychological inducement,”4 he cannot “throw his weight around.”5 Thus he must employ restraint and resourcefulness, all the while keeping in mind that the encounter will instantly become a de facto detention if it crosses the line between voluntariness and compulsion.6 So it often happens that both the suspect and the officer are role-playing—and they both know that the other knows it.
For officers, however, acting skills and resourcefulness are not enough. As one court put it, they must also have been “carefully schooled” in certain legal rules—the “do’s and don’ts” of police contacts7—so as to prevent these encounters from inadvertently becoming de facto detentions, at least until they develop grounds to detain or arrest. What are these “do’s and don’ts”? That is the subject of this article. To set the stage, it should be noted that, whenever an officer interacts with anyone in his official capacity, the law will classify the interaction as an arrest, detention, or contact. Arrests and detentions differ “markedly”8 from contacts because they constitute Fourth Amendment “seizures” which require some level of suspicion; i.e., probable cause or reasonable suspicion.9 So, as long as the encounter remains merely a contact, the Fourth Amendment and its various restrictions simply do not apply.
One other thing. Officers will sometimes contact a suspect at his home. Known as “knock and talks,” these encounters are subject to the same rules as contacts that occur in public places. But because they are viewed as more of an intrusion, there are some additional restrictions that we will cover in the article “Knock and Talks” later in the reading.
From the Courts to the Street
A. Neither reasonable suspicion nor probable cause is required to initiate a social contact, but a proper introduction ... should be utilized whenever possible.
B. A social contact is consensual or voluntary. The citizen is under no obligation to answer any questions and is free to leave at any time.
As with all encounters with the public, police members shall treat individuals encountered in a social contact in a professional, dignified and unbiased manner.
Police members should safeguard their actions and requests so that a reasonable person does not perceive the contact as a restraint on their freedom. Police members will be respectful, attempt to build rapport, and keep the contact as brief as possible.
The SOP further describes basic protocol for officers to follow when making contact:
A. Police members can expect to make numerous contacts with the public on a daily basis. These contacts form the basis for the relationship between the department and the community. While these contacts vary in nature, and each situation must be treated individually, the goal of the department is that each contact be conducted in a courteous, professional and lawful manner.
Contacts with the police and any police actions that may result from a contact are often subject to great scrutiny. Most contacts are governed by landmark court cases which define the boundaries for proper police conduct in this arena and police members must be familiar with those court cases and remain within the boundaries set forth therein.
B. Members shall use proper approach considerations when contacting a person and shall not jump out as a means of surprise, immediately approach a vehicle, or engage persons at close proximity unless the member can articulate specific facts and circumstances, which support an individualized, objective, and articulable reason to do so.
C. Members shall avoid intentionally trying to provoke the flight of a person through immediate approach, surprise, or other means unless the member can articulate specific facts and circumstances, which support an individualized, objective, and articulable reason to do so.
D. INTRODUCTION
To the extent that safety considerations allow, police members will introduce themselves to all individuals they make contact with. A proper introduction will establish the identity of the police member, the rank of the police member, and the context surrounding the initiation of the contact. This provides the platform for the lawful actions or requests made by the police member during the contact. Introductions should be formulated so that they provide:
a. The police member’s last name.
b. The police member’s rank or title and badge number (if applicable).
c. The police member’s affiliation with the Milwaukee Police Department.
d. The reason for the contact or stop.
The introduction shall occur as early in the contact as safety permits and will be given prior to the police member’s request for identification or license and registration information from the person being contacted.
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