Three Tiers of Police-Citizen Encounters

The three tiers of police-citizen encounters are the subject of today’s training video.  I cover consensual encounters, investigative detentions and arrests, breaking down some of the key elements to each.

Make sure to watch the video and also read the article below.  I cover the same topic, but in two different ways.  If one doesn’t make sense, try the other.  My goal is to give police officers training information in ways that it makes sense.

The Fourth Amendment to the US Constitution makes up the foundation of the laws and court decisions regulating police-citizen encounters.  A quick refresher, the Fourth Amendment states:

Amendment IV – The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally, for a person or place to be searched or seized, a warrant should be secured.  There are exceptions to this, since criminal activity is frequently a rapidly evolving thing and perpetrators may escape, evidence may be destroyed and the public may be endangered for want of a magistrate and a typewriter to issue a warrant.  But, those exceptions are narrow, and police officers should be cautious to balance the need to apprehend criminals against the rights of innocent citizens to be free from government harassment.  The ends do not justify the means.

The three tiers of police-citizen encounters can be described as consensual encounters, investigative detentions and arrests.  They are briefly described below, and more fully detailed in the video above.

Consensual Encounter

Consensual encounters is the most frequent interaction between law enforcement and the citizens we serve.  In a consensual encounter, the officer can ask any question he or she wishes and obtain consent to search the person or person’s property.  The citizen is free to leave, refuse to answer any questions, decline to identify themselves and ask the officer to leave their property.

No evidence of any crime is needed to initiate a consensual encounter, and the encounter can be terminated at any time by either party.

Examples of consensual encounters include casual conversation in line at a fast food restaurant, a citizen walking into the police station to obtain information and an officer striking up a conversation with someone in a parking lot or walking down the street.  If the officer restrains the citizen’s movement by directing them to a different location, turns on the cruiser’s overhead lights or intimidates the citizen through some show of force (multiple officers, etc.), then the encounter is likely not a consensual encounter.

Arrest

At the other end of the spectrum of encounters is the arrest.  Arrests must be supported by probable cause.  Every jurisdiction I am aware of allows a police officer to arrest a suspect without a warrant on a felony charge if the officer develops probable cause.

Some searches incident to arrest are easier than others. ©2007 Jonas Bengtsson

The authorization to make misdemeanor arrests on probable cause vary from jurisdiction.  Some jurisdictions allow the arrest of a person on misdemeanor charges only if witnessed by the officer.  Other areas allow for arrest on certain misdemeanor crimes with probable cause even if the officer did not witness the event (such as a DUI accident and domestic violence.)  Some states allow the officer to make an arrest on any misdemeanor just as they would on a felony.

With an arrest, the citizen is obviously not allowed to leave and can be (and should be) searched without additional probable cause.  A search of the area around the arrested person for weapons and evidence may be permitted without additional probable cause.  Those specifics go beyond the scope of this article.

Investigative Detention

The third type of police-citizen encounter falls between the two extremes and is called an investigative detention.  An investigative detention is often called a “Terry stop,” which refers to the US Supreme Court Case Terry v. Ohio.  In that case, the Supreme Court formally acknowledged the investigative detention as a reasonable investigatory tool that is less than an arrest, but still restrains a citizen’s free movement.

In a Terry stop, an officer must have reasonable, articulable suspicion that a specific person has committed, is committing or is about to commit a specific crime.  The stop may not be based on “mere suspicion” or a “hunch.”  The stop must be supported by facts and observations that the officer can articulate as likely criminal behavior based on his training and experience.

For example, a person who doesn’t look like he “belongs” in a neighborhood may not be stopped.  However, a police officer with five years of narcotics investigations experience observes the same person in an area known for drug activity make a hand-to-hand deal.  When the officer approaches the man, he quickly throws something in the bushes.  In that circumstance, the officer can likely articulate specific actions that would lead a reasonable person to believe a crime has just been committed.  Therefore, the officer could make a investigative detention of the subject.

In an investigative detention the citizen is not allowed to leave.  However, if the detention lasts beyond a reasonable amount of time, the detention can become a de facto arrest.  Likewise, other factors can escalate the detention into an arrest.  For example, the number of officers, what kinds of restraints (if any) are in use, where the stop takes place, how the subject is questioned and if threats or coercive statements are made can all move the detention to a de facto arrest.

An officer may forcibly stop a suspect if they have justification for a Terry stop.  In other words, if you meet the requirements for a investigative detention and the suspect flees, you can chase them and use reasonable force to gain compliance.  You can likely charge them with the criminal act of obstruction (or whatever it may be called in your area) as well.

The investigative detention hinges on “reasonable.”  Reasonable, as we all know, is a gray area.  The public expects aggressive pursuit of the wicked, but not at the expense of the innocent.  So, understand what amounts to reasonable in your jurisdiction by reading through local cases.  Get a feel for what the courts deem reasonable in your jurisdiction.  Then, make sure you can articulate to yourself and in your report the exact reasons why you are stopping someone.

For more information, please watch the above video.  We will be doing additional videos and articles on this topic in the future.

PLEASE NOTE:  State laws and courts may deviate one way or another from the information presented here.  You have to talk to your department’s legal advisor and local prosecutors to be certain of where you stand.  Do not take any of this information and assume that it is 100% applicable to your jurisdiction.