Converting Detentions Into Consensual Encounters
Many of the procedural problems that officers encounter during detentions can be avoided by converting the detention into a consensual encounter or “contact.” After all, if the suspect knows he can leave at any time, and if he says he doesn’t mind answering some more questions, there is no reason to prohibit officers from asking more questions.
To convert a detention into a contact, the officers must make it clear to the suspect that he is now free to go. Thus, they must ordinarily do two things. First, they must return all identification documents that they had obtained from the suspect, such as his driver’s license.190 This is because “no reasonable person would feel free to leave without such documentation.”191
Second, although not technically an absolute requirement,192 they should inform the suspect that he is now free to leave.193 As the Court of Appeal observed in People v. Profit, “[D]elivery of such a warning weighs heavily in favor of finding voluntariness and consent.”194
One other thing. The courts sometimes note whether officers explained to the suspect why they wanted to talk with him further, why they were seeking consent to search, or why they wanted to run a warrant check. Explanations such as these are relevant because this type of openness is more consistent with a contact than a detention, and it would indicate to the suspect that the officers were seeking his voluntary cooperation.195
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