Consensual Contact: Police Encounters of the Third Kind
| Jurisdiction | United States,Federal |
| Citation | Vol. 21 No. 6 Pg. 1129 |
| Pages | 1129 |
| Publication year | 1992 |
1992, June, Pg. 1129. Consensual Contact: Police Encounters of the Third Kind
Two common types of police/citizen encounters are those based on reasonable suspicion(fn1) and probable cause. The third type of encounter is consensual contact.(fn2) This article assumes the reader is generally familiar with the three. The discussion herein focuses on recent cases that have added confusion to the issue of when police can confront an individual without triggering Fourth Amendment scrutiny.
Recently, the U.S. Supreme Court expanded the scope of constitutionally permissible consensual police contact to include passengers seated on a bus. In Florida v. Bostick,(fn3) the defendant was on a bus headed for Miami. The police boarded the bus at a rest stop and began to confront various passengers. Admittedly, they had neither reasonable suspicion nor probable cause to contact or arrest any of the passengers. After the defendant provided adequate identification, the police asked permission to search his luggage. He consented, whereupon contraband was discovered.
The defendant moved to suppress the evidence, arguing that a reasonable bus passenger would not have felt free to leave the bus to avoid questioning because there was no place to go and, particularly, because the bus was about to depart. He argued that this conduct was a seizure by the officers and not a consensual encounter.
The Court disagreed, stating that it was not necessarily the police activity that confined the defendant's movements. Instead, the Court reasoned, the defendant was confined as a natural result of his decision to take a bus.(fn4) The Court did not decide if, in fact, a seizure took place; it merely decided that the police conduct in question did not automatically constitute a seizure. Consequently, the Court remanded the case for factual findings on that issue.
To determine if a seizure occurred, the trial court was directed to consider all of the circumstances surrounding the encounter to discern whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter.(fn5) The Court went on to state that the initial encounter was consensual and...
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