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In A Consensual Encounter, Should The Police Be Required To Tell A Suspect He Is “free To Leave” Or Must The Suspect Just Guess?

Judge Rosenbaum authored a particularly thoughtful concurrence in the Knights decision on March 11. The question posed to the panel was whether the police had detained the defendant when they pulled their vehicles adjacent to the defendant’s vehicle on the side of the road. All three judges on the panel agreed that this did not amount to a seizure and therefore, the police did not need an articulable suspicion to start the encounter in this way.

Judge Rosenbaum’s concurring opinion explains the dilemma facing the suspect. Assuming there is no basis for a detention (i.e., there is no reasonable suspicion justifying a restraint on the person’s liberty), then the police may initiate a consensual encounter. But correspondingly, the citizen is free to terminate the encounter and walk or run away. But how does the citizen know whether the police are engaging in a consensual encounter or are detaining the citizen, albeit in a polite way? One can be detained and “not free to leave” even if the police have not pointed a gun at the person, or handcuffed him. The Supreme Court insists that determining whether a citizen has been detained is measured by a purely objective standard: “Does the citizen reasonably believe that he is not free to leave.” United States v. Drayton, 536 U.S. 194, 200 (2002); Michigan v. Chesternut, 486 U.S. 567 (1988); Florida v. Royer, 460 U.S. 491 (1983). There are numerous factors that the court may consider in deciding whether the suspect was detained, including the number of officers involved in the encounter, the use of weapons, any physical restraint, words spoken by the police that explain that the suspect is not free to leave, the age of the suspect.

The suspect, however, while possibly aware of all the existing objective facts, may or may not reach the same conclusion as the police (or the court) in determining whether a “reasonable person” would feel free to leave.

Consider the four possible scenarios that might exist:
If the citizen believes it is a consensual encounter and he is right, he can go about his business and leave the police in the dust.

  • But if the citizen is wrong and the police were detaining the citizen, then “going about his business” would amount to obstruction of justice and could lead to a violent encounter when the police try to recapture the fleeing suspect.
  • If the encounter is (objectively speaking) consensual, but the defendant believes he is being detained, he will be “restrained” in his own mind without any basis.
  • If the police were detaining the defendant and the defendant stays put, the investigation proceeds apace.

In her concurring opinion, Judge Rosenbaum suggests that the police should be required to announce to the suspect whether he or she is free to leave or not. That warning should be mandatory. Adopting this rule will remove any uncertainty in the mind of the suspect. If he is told he is being detained, he better not risk fleeing (though if the court later decides that there was no basis for the detention, he might be able to avoid any legal consequences of fleeing). If he is told he is free to leave, there is no risk in leaving.

Absent an explicit warning from the police, the suspect must decide whether leaving without further ado will lead to further criminal charges (if not a violent encounter). Given the fact that it is not uncommon that the court will reach a different conclusion than the police and it is not uncommon for judges to disagree with one another about the sufficiency of the information known to the police and the level of restraint, if any, that was being employed, it certainly seems like the citizen is entitled to some warning about his status before he is required to make a decision whether to walk away or remain in place.

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