Three distinct types of interactions with police exist, for purposes of classification under our laws: (1) consensual encounters; (2) investigatory detentions; and (3) arrests. When a motion to suppress is filed, the State generally attempts to characterize the interaction as a consensual encounter. Why? Because consensual encounters with police do not implicate the protections of the Fourth Amendment. So, if the encounter is truly consensual, a motion to suppress alleging an unreasonable (and therefore unlawful) seizure or detention is easily defeated.
So what is a “consensual encounter”? Our law says a consensual encounter takes place where an officer approaches a citizen in a public place to ask questions, and the citizen is willing to listen and voluntarily answers. As I have written here before, if a cop approaches you under these circumstances (and he lacks reasonable suspicion to detain you or probable cause to arrest you) you can simply walk away. You do not have to chat with police. I encourage people to think of consensual encounters in terms of the lack of Fourth Amendment protection they provide—a little unsettling to think of them as such, perhaps.
I was at a wedding a few weeks ago, and I saw a cop, uniformed and armed, working security outside that I had cross-examined earlier this year on a case. We recognized one another; and he walked up to me and we began chatting about the wedding, baseball, and such. He asked me who I knew at the wedding, and if I lived in the city. After a few minutes, I excused myself to go help clean up and walked away from the cop. This was a consensual encounter: the cop approached me in a public place to ask questions, and I voluntarily listened and continued the conversation. I knew that I could simply walk away at any point during the conversation, and did when I wanted to. No Fourth Amendment protection there.
But this isn’t the typical consensual encounter now, is it?
Suppose that I am sitting on a bench at a bus stop just after dark (say 7pm in the fall), and a cop, uniformed and armed, sees me and starts walking up behind me. No one else is around. As he walks up, when he is ten or so feet away, he asks if everything is okay, and I respond “yes.” Suppose he then walks around the bench and stands in front of where I am sitting—a foot or two away, with his flashlight shined on me, and begins asking me questions. “What are you doing here?” “How long have you been waiting?” “Where are you coming from?” To get up and walk away, I would have to stand up bringing me nose-to-nose with the cop, and awkwardly brush past him to walk away. This seems closer to the “consensual encounters” we see in criminal cases.
Is there really anything consensual about this type of interaction with police? Did I ask to be approached (unexpectedly and from a blind-spot, no less)? Did I initiate the conversation? It doesn’t seem quite right accurate to say that I “was willing to listen” and “voluntarily answered questions.” Less “willing” perhaps than a “captive audience.” And less “voluntarily” than “because he or she had a badge and a gun and was standing over me”; “I thought I had to answer” is a frequent statement from the accused in such situations.
All of this is to say that the law breaks with reality more frequently than it should perhaps.