Perpetuating the Fiction of the Consensual Police Encounter

In a case released yesterday from the Texas Court of Criminal Appeals (State v. Castleberry), the CCA went to great lengths to defend and perpetuate the fiction of the “consensual police encounter.”

In Castleberry, the defendant and a friend were walking behind an Uncle Julio’s restaurant in Dallas. They were not engaged in and did not appear likely to engage in criminal conduct. A Dallas police officer approached them and asked for identification. The defendant reached for his waistband. The police officer then ordered appellant to place his hands in the air. The defendant grabbed a baggy of cocaine from his waistband and tossed it on the ground. The trial court suppressed the cocaine, reasoning that the officer did not have “reasonable suspicion” to justify the stop. The 5th District Court of Appeals agreed.

The CCA, on the other hand, held that the lower courts applied the wrong legal standard and characterized the stop as a “consensual police encounter.” Writing for the majority, Judge Keasler, stated:

Even if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that a citizen complied with the request does not negate the consensual nature of the encounter…We conclude that a reasonable person in [the defendant’s] position would have felt free to decline [the officer’s] request for identification and information.

The obvious question then becomes, what would the CCA preferred the defendant to do? “No, thanks officer, I prefer not to provide any identification or tell you what I am doing. Thank you. Have a nice night.” Had the appellant said that, there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here.

The opinion goes on to suggest police officers (even when they are in uniform) are just like any average citizen.

Because an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the officer’s]conduct shows that the interaction was a consensual encounter.

Ultimately, the CCA reasons that because the defendant could have been reaching for a weapon when he reached into his waistband, the officer’s further pat-down search was justified under Terry.

The CCA concludes:

The Court of Appeals failed to separate [the encounter] into two distinct parts: (1) [The officer’s] initial approach of [the defendant], which was a consensual encounter; and (2) [The defendant’s] act of reaching for his waistband, which provided [the officer] with reasonable suspicion to detain and frisk [the defendant]. We therefore reverse the court of appeals’s judgment, hold the seized contraband to be admissible, and remand the cause to the trial court.

Halt! Who Goes There?

A while ago, I wrote about consensual police encounters and how they differ from investigative detentions. See previous posts HERE and HERE. There are several factors that courts consider when determining whether a situation amounts to a consensual encounter or an investigative detention, but the short version is that if a person submits to a police officer’s show of authority and it does not appear that the person is allowed to leave, then the situation is an investigative detention (it might even be an arrest, but that’s another analysis). While consensual police encounters can be initiated for no cause whatsoever, an investigative detention requires reasonable suspicion.

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

The 4th District Court of Appeals (San Antonio) recently considered the whole consensual-encounter-or-investigative-detention issue in Parks v. State and reversed a trial court’s finding for abuse of discretion. The opinion did not make clear, and maybe that is part of the problem, whether the trial court concluded that the stop was a consensual encounter or an investigative detention. In any event, the Court of Appeals held that the facts of the case demonstrated that the stop was an investigative detention for which the officer must have had reasonable suspicion. Because the officer did not have reasonable suspicion, the fruits of his search should have been suppressed and case must be reversed. Once you read the facts, you’ll wonder how the trial court could have ever concluded that this was a consensual police encounter or that there was reasonable suspicion to justify an investigate detention. The Court of Appeals, I’m sure, did not labor long over this reversal.

Here’s what happened (taken from the Court of Appeals opinion). A police officer noticed four men walking behind a shopping center (strip mall). The officer shined his spotlight on the men and noticed that a couple of them had blue bandanas hanging from their pants.

Although the men were walking near the back doors of the businesses, the groups appeared to be walking past the location, no one appeared to be checking the doors to the businesses or the dumpsters, none of them appeared to react to his presence by changing his manner of walk, no furtive gestures or gang hand signals were notes, nothing passed among them, and the officer had no information that any of the group had a criminal record or was a gang member. The only factual circumstance the State appears to rely on to show reasonable suspicion is the presence of the blue rags.

There was also no testimony that the clothing that the men wore was emblematic of any gang membership. The officer drove over to the individuals, and in an authoritative tone asked them to place their hands on the car. The appellant took two steps back and looked around, so the officer repeated his request. The officer then frisked appellant and found a gun in one of his pockets.

This should have been a no-brainer for the trial court, but apparently an officer’s hunch is good enough for some trial judges. Who needs specific, articulable facts, when we can simply rely on the officer’s experience and intuition? The law does. Accordingly, the Court of Appeals reversed the conviction and remanded the case back to the trial court.

Based on this case, I also take back what I said about the San Antonio Court Appeals in this previous POST, when I jested that the Reasonable Suspicion standard was all but dead in San Antonio.  Thanks for proving me wrong.

"Come Over Here and Talk to Me"

Crain v. State - (Tex. Crim. App.) June 30, 2010.

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."

A Consensual Police-Citizen Encounter - Does Such a Thing Exist?

Last week, in State v. Priddy, the 2nd District Court of Appeals (Fort Worth), explained:

The Texas Court of Criminal Appeals recognizes three categories of interactions between police officers and citizens: arrests, investigative detentions, and encounters.  Unlike an investigative detention or an arrest - each a seizure for Fourth Amendment purposes - an encounter is a consensual interaction, which the citizen may terminate at any time.

In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver's license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

Once the woman rolled down her window, however, everything changed.  Through midst of grilled onions, ground beef, and mustard, the officer detected a hint of alcohol from inside the vehicle.  Now, according to the appellate court, the "encounter" created reasonable suspicion by which the officer could initiate an investigative detention.  Of course, the ensuing investigative detention substantiated the DWI.

Here's what the Court had to say about "encounters:"

So long as the citizen remains free to disregard the officer's questions and go about his or her business, the encounter is consensual and merits no further constutional analysis.

Are you telling me that this woman could have simply waived off when the office approached her vehicle?  She could have simply refused to answer questions - refused to cooperate - and everything would be fine!?  I seriously doubt it.  I submit that if she had refused to cooperate, the officer would have used that fact (and the court would have ratified the decision) as reasonable suspicion to further detain the woman to investigate.  In my view, there was absolutely no way she could have gotten around talking to the officer.  None.

She was able to convince the trial court that the search was unreasonable, but the 2nd Court reversed.  Best of luck to Mrs. Priddy at trial.