In November, I wrote about Joseph June, a Florida man sentenced to five years in prison for cocaine possession. The cocaine was found in a search that stemmed from a “consensual encounter,” one into which both parties entered voluntarily; the officer had no reason to suspect that June was engaged in illegal activity, and just stopped him in order to chat. In the initial piece, I suggested that consensual police encounters are often anything but. Cops have guns, and handcuffs, and cars with back doors that don’t open from the inside. Even if a police officer is polite as pie, he or she will have the upper hand in most conversational situations. As a consequence, most ordinary citizens will feel compelled to talk with a police officer even when, legally, they don’t have to.
Since then, I’ve received a lot of emails from readers asking what, exactly, you should do if you find yourself in a supposedly consensual conversation with an officer of the law. Apparently a lot of innocent, non-suspicious-looking people have been or expect to be pressured into gratuitous interactions with the police. And, from the emails I’ve received, a lot of people have no interest in talking to the law in these situations. Which, to be sure, is their right. You’re under no obligation to talk with a police officer in non-investigatory situations, and you shouldn’t be intimidated into feeling otherwise. (And to be clear, I’m not talking about those times when a cop stops you for speeding, or jaywalking, or stealing an old woman’s purse. In scenarios like these, when there’s reasonable suspicion that you’ve done something wrong, you’re obliged to cooperate, and refusal to comply may lead to your arrest.)
The simplest answer is that you need to be explicit. It’s up to you to assert your rights. If an officer of the law stops you for a conversation, make it clear that you are uninterested in participating. Ideally, the officer will move on, and the encounter will end. Sometimes, the cop might become offended or truculent and use force or other means to compel you to stay. In this scenario, you might eventually end up in court, which is why you want to make sure that your actions are as clear as possible.
In an excellent, thorough 2001 article for the San Diego Law Review, Daniel J. Steinbock proposed a three-step approach for avoiding unwanted consensual police encounters, informed by the relevant case law. Making the good point that not all police-citizen interactions are adversarial—sometimes, a cop just wants to buy you some boots—Steinbock suggests that citizens answer an officer’s request for conversation with “Why?” or “What is the reason, officer?” If the reason is anything other than overtly benign, or if the police officer gives a non-answer (something like “This’ll just take a minute”), Steinbock suggests you proceed to the second step: “Just Say No.”
The crux of avoiding a consensual encounter is noncooperation—refusal to answer questions and to consent to police requests. As noted above, this requires a fair degree of self-confidence and a willingness to flout the conventions of common discourse (which, of course, this is not). Nevertheless, it is the sine qua non of consensual encounter avoidance. "Can we see your driver's license?" "No!" "What are you doing here?" "I am not answering," or less politely, "None of your business."
Saying "no" once may not be enough. Some courts have held that continued badgering after a first refusal causes the encounter to cross the line to a seizure, but others have permitted repeated questioning and requests for consent to search without concluding that a seizure had taken place. A reasonable person would thus be well-advised to say "no" repeatedly, and to reject any attempt by the officer to accompany her if she tries to leave. Some courts have found it significant that the refusals were delivered in a shout or scream, or that the individual ran from police in an attempt to get away. The cases thus not only encourage flatly rebuffing the officer's inquiries, but also encourage doing so in the rudest, most confrontational, and most obnoxious manner.
Take note: Being obnoxious is not a crime. (If it were, we would’ve executed Urkel 20 years ago.) Steinbock goes on to note that saying “no” also means never saying “yes,” because “refusal looks more suspicious if it comes after the individual has already cooperated.” Next, Steinbock encourages you to “announce one’s intent to depart and then do so at a measured pace.”
“A measured pace?” you ask. “But didn’t Steinbock just pretty much say (in the above blockquote) that it’s sometimes OK to run from the police?” Good catch, hypothetical back-talking reader. Steinbock was referring to the 1991 Fourth Circuit opinion on US v. Wilson, in which the court found it significant that Albert Wilson had to run from police in order to terminate an extended and involuntary encounter. But the courts aren’t entirely consistent on this point. In other cases, like Illinois v. Wardlow, flight has been interpreted as providing reasonable grounds for a search and seizure. It’s all very ambiguous.
There are certainly times when running away is justified. (In US v. Wilson, for example, cops followed Albert Wilson through an airport and refused to stop badgering him, despite Wilson’s numerous loud attempts to end the encounter.) But, in general, you don’t want it to appear like you're trying to flee from the police. No matter how the courts might eventually interpret your actions, to a police officer, running away generally looks suspicious; a cop might reasonably argue that your sudden flight transformed the encounter from a consensual one to an investigatory one.
In a recent email exchange, Steinbock told me that he still stands behind this three-step approach. Other people have different strategies. Emailer K.K. from Arizona, a frequent videotaper of police encounters, writes that he carries orange business cards that he hands out to police in these situations. They read like this: “This interaction is NOT consensual, and is being audio and video recorded for my safety as well as yours. I am invoking my Fifth Amendment rights and refusing to answer ANY questions. Please do not ask me any questions without my attorney present. I furthermore invoke my Fourth Amendment rights and do NOT consent to ANY searches of my persons and or property.” If you’ve got a functional printer and a line on some high-quality card stock, you can make this technique work for you. The point is to be explicit, such that both the cop and any potential judge down the line would have no way of mistaking your intentions.
To be clear, I think police officers have tremendously stressful jobs, and I think the vast majority of them approach their work with the best intentions. But I also think it’s important for citizens to know their rights, and many of us don’t understand what rights we’re afforded when we’re stopped by the cops. We live in a society of laws, and as long as those laws set limits on police-citizen encounters, those limits should be well understood and respected by all relevant parties.