Police officer drives up next to a "suspicious-looking" pedestrian and says "Come over here and talk to me." At trial, of course, the officer testifies that:
had the [suspect] refused to talk to him, he would have let the [suspect] go, as he had not observed the [suspect] do anything that could be construed as criminal activity.When the suspect "voluntarily" spoke with the officers, they smelled an odor of recently-smoked marijuana on the him. Believing the suspect to be in possession of marijuana, the officer placed the suspect's hands behind his back and patted him down. Note: The suspect was not under arrest yet. During the pat-down search, the officers discovered a firearm tucked into the suspect's belt, but no drugs or other contraband.
At trial, the defendant moved to suppress the firearm, arguing that the interaction with the police officers was an unlawful investigative detention for which the officer did not have reasonable suspicion. The trial court found the interaction to be a consensual encounter that did not require any level of suspicion and denied the suppression motion. Appellant was convicted of unlawful possession of a firearm.
The 7th District Court of Appeals (Amarillo), affirmed, holding that the officer's conduct would not have communicated to a reasonable person that the appellant was not free to decline the officer's request and terminate the encounter. Chief Justice Quinn dissented, concluding that, under the circumstances, the stop was a detention rather than a mere encounter.
In a 6-3 opinion, the CCA reversed the 7th Court. Citing the dissent from the lower court, the CCA Judge Price emphasized:
As stated in Justice Quinn’s dissent, “[m]issing from the phrase ‘come over here and talk to me’ are words of contingency or option. That is, they are not a mere solicitation of cooperation. Nor do they extend any choice, explicit or implicit. Rather they are mandatory[.]”Judge Cochran submitted a concurring opinion, in which she observed:
Officer Griffin testified that the exact words he used in calling to appellant were, “Come over here and talk to me.” That is a command. It is an imperative sentence.Judges Keller and Keasler each filed dissenting opinions. Both would have classified the interaction as a consensual encounter rather than an investigative detention.
A few months ago I posted about consensual police encounters HERE. This case reinforces my prior opinion that "there is no such thing as a consensual police encounter."
