Ins and outs of consent
This article has nothing to do with the #MeToo movement, but this is a subject that can get you in just as much trouble if you don’t understand the rules. When you are dealing with a member of the public while on duty, the law will classify the contact in one of three ways: a consensual encounter, a detention or an arrest.
Detentions and arrests require reasonable suspicion and probable cause, respectively. A detention, or arrest, without the required reasonable suspicion or probable cause is a violation of the Fourth Amendment.
Consent is a horse of a different color. While detentions and arrests can involve force, consent cannot. A “consensual encounter” is a contact between an officer and an individual that is strictly voluntary. The key element is that the person remains totally free to leave or not cooperate. The good side of consent is that you do not need any reason or justification to make this contact. The bad side is that you could inadvertently do or say something that turns the consensual encounter into an illegal detention. Illegal detentions have a nasty way of turning into personnel complaints and civil lawsuits. However, as they say, it never hurts to ask.
Asking, it turns out, is not a violation of the Fourth Amendment. However, you must tread softly. Your choice of words, or even your tone of voice, can push the consent into a
detention. “Mind if we talk?” is consensual. “Come here, I want to talk to you” is a detention.
Even without words, detentions can happen. For instance, shining a spotlight on someone and walking briskly toward them has been held to be a detention. Obviously, if you turn on your red lights and someone stops, a detention has occurred. Also, having
your weapon out, or even sometimes resting your hand on your holstered weapon as if getting ready to draw it, can trigger a detention. The test is “would a reasonable person feel that they are free to leave?” If not, it is not a consensual stop, but a detention.
You can, however, request identification of a person during a consensual contact without offending the Fourth Amendment. Of course, if you retain a person’s driver’s license, that consent may fade into a detention because a person would not feel free to leave if their driver’s license is being held, although that would only be one factor a court would look at especially if the person did not ask for the license to be returned. Better to return it quickly though.
The Fourth Amendment is not violated if you merely knock on a door. So-called “knock and talk” can occur when the knock is polite, the hour is reasonable and there is no badgering or compulsion. Politely requesting permission to enter or permission to search does not trigger the Fourth Amendment. Of course, the loud police knock with a baton and a demand to open the door at 3 a.m. does not qualify as consensual.
The courts do recognize that your job is dangerous. You get a little latitude when it comes to officer safety. Ordering a person to keep their hands in sight or remove their hands from their pockets will not necessarily convert a consensual encounter into a detention, but it may. Start out with a request, then do what your safety requires you to do. If the suspect’s actions create an appearance of potential danger, your reaction, although converting the consensual encounter into a detention, may make the detention a legal detention. But articulation is a must. Conducting a pat-down converts any consensual encounter into a detention. Asking for permission to conduct a pat-down and getting that permission does not. So, ask.
Paradoxically, a detention does not occur until the person actually submits
to your authority. So, you order a suspect to stop and they run. A detention has not occurred. When you catch the person, then he is detained. Up until then nothing has happened under the Fourth Amendment. Remember that once you get into detention territory, for the detention to be legal, you have to have reasonable suspicion to satisfy the Fourth Amendment. That means you have to articulate that 1) criminal activity
may be afoot and 2) the person you are about to detain is connected with that possible criminal activity. If you cannot do that, then you have to deal with the consequences of an illegal detention. Suppressed evidence, personnel complaint, and a lawsuit, are
all potential results. That is why starting every encounter with consent is a better practice, even when you have reasonable suspicion. Valid consent saves a lot of arguing later on about the elements of reasonable suspicion, for one thing. You can cut to the chase without all that legal wrangling. Even the old adage “Ask-Tell-Make” starts
with ask. An added bonus is that nowadays you do not even need to argue about
whether or not you actually got consent. The proof is right there on your body-worn video. Be clear. Be concise. And be a Spielberg. Direct your own evidence show for the jury. And… Be legally careful out there.
