Chapter 11: Investigative Contacts
Introduction
What are "contacts"? Whenever officers interact with anyone in their official capacity, the law will classify that interaction as an arrest, a detention, or a contact. Arrests and detentions differ from contacts in that they constitute Fourth Amendment "seizures" which are subject to various restrictions; e.g., officers must have probable cause or reasonable suspicion. In contrast, a "contact" (also known as a "consensual encounter") is a police-suspect encounter in which the suspect voluntary agrees to stop and answer questions or otherwise assist officers in their investigation.[1] Because the suspect knows (at least theoretically) that he may refuse to talk with officers, refuse to identify himself, or otherwise refuse to cooperate,[2] the restrictions governing seizures do not apply.[3] In this chapter, we discuss the circumstances that are relevant in determining whether an encounter was consensual at the start, and whether it later became an illegal seizure.
Skepticism about some circumstances: It must be acknowledged that some of the things that officers may say and do without converting a contact into a detention would cause some innocent people to believe they were not free to terminate the encounter. But this does not mean that the test is a sham or naive.[4] Instead, it is simply a practical—albeit imperfect—compromise between competing interests.[5]
Related subjects covered elsewhere
Converting detentions into contacts: See Chapter 8 Investigative Detentions.
"Knock and talks": See Chapter 54 Knock and Talks.
Chapter Structure
(1) Principles of Contacts
(2) Engaging the Suspect
(3) Officer-Safety Measures
(4) Requesting Identification
(5) Conducting the Investigation
(6) Other Circumstances
Principles of Contacts
The "free to terminate" test: A police-suspect encounter is a contact if a reasonable person in the suspect's position would have "felt free to decline the officers' requests or otherwise terminate the encounter."[6]
Compare "free to leave" test: In the past, the test was whether a reasonable person would have believed he was "free to leave" or was "free to walk away." But many suspects will be in a place they do not want to leave, such as a vehicle, home, or workplace. So, to help simplify things, the Supreme Court in announced that the "free to terminate" test would apply "equally to police encounters that take place on trains, planes, and city streets."[7]
Compare Miranda: Do not confuse the "free to terminate" test with the test utilized in Miranda to determine whether a suspect was "in custody." Although both tests attempt to gauge the coercive pressures that existed during a police-suspect encounter, a suspect will be deemed "in custody" for Miranda purposes only if he reasonably believed he was under arrest; i.e., he is not in custody merely because he reasonably believed he was not free to leave. See Chapter 42 Miranda: When Compulsory.
Reasonable innocent person: In applying the "free to terminate" test, the courts view the surrounding circumstances through the eyes of an innocent person in the suspect's position.[8] This is significant because a person who was guilty of the crime under investigation would necessarily view the officers' words and actions much more ominously than an innocent person, and might erroneously conclude that any perceived restriction on his freedom was an indication that he had been detained.
Should vs. must: The test is whether a reasonable person would have believed he must stay or was otherwise required to cooperate with officers. A detention does not result merely because a reasonable person would have believed he should stay and cooperate, or because the officer's request made him "uncomfortable."[9]
Objective circumstances: The only relevant circumstances are words and actions that were communicated to the suspect or would otherwise have been apparent to him.[10] Thus, it is irrelevant that the suspect believed he was not free to terminate the encounter. What counts is whether a reasonable person in his position would have believed so.[11] It is also irrelevant that the officer did or did not intend to detain the suspect.[12] For example, it is irrelevant that, unbeknownst to the suspect, the officer requested backup or notified dispatch that he was going to "detain" or "stop" the suspect.[13]
Engaging the Suspect
: The success or failure of an attempt to contact a suspect will often depend on the manner in which the officers were able to get the suspect to stop and talk with them.
Commands to stop
Direct commands to suspect: A command to stop—whether by words or actions—will result in a detention if the suspect complied.[14] The California Supreme Court has discussed, but not ruled, on whether a suspect might be detained as the result of a command directed at a companion.[15]
Implied commands to suspect: While a simple request to stop and talk will not result in a detention, a command will be inferred if the officer's words "constituted a show of authority such that [the suspect] reasonably might believe he had to comply."[16]
Red lights: Directing a red light at a moving vehicle is essentially a command to stop.[17]
Red light to clear traffic: The driver of a vehicle who sees a red light behind him is not detained if it reasonably appeared the light was being used to clear traffic.[18]
Disabled and wrecked vehicles: Lighting up an occupied and disabled vehicle would not ordinarily result in a detention of the occupants because a reasonable person in the driver's position would understand that the purpose of the emergency lights was to warn oncoming drivers.[19]
Parked and occupied vehicles: A detention results if the red light was directed at a parked and occupied vehicle.[20] Also see "Stopping behind or near," below.
Amber lights: Because an amber warning light is a safety measure that is directed at approaching motorists, it has little or no bearing on whether the suspect was detained.[21]
Spotlights, high beams: An officer's use of a white spotlight or high beams to get the suspect's attention is a relevant circumstance, but usually insignificant.[22]
Flashlights: It is irrelevant that officers used a flashlight to illuminate the suspect.[23]
Blocking the suspect or his car: A detention will result if officers blocked the suspect's path and it reasonably appeared that their purpose was to prevent him from leaving.[24]
Compare impeding: A detention might not result if the officers' car would have merely impeded the suspect's ability to leave.[25]
Compare stopping behind or near: Stopping a patrol car behind or to the side of a suspect will not convert the encounter into a detention if the suspect's path was not blocked.[26]
Urgent interest: A detention might result if officer approached the suspect in a manner that demonstrated an unusual or urgent interest in him, especially if accompanied by a request to stop; e.g., an officer pulled his patrol car to the wrong side of the road, parked diagonally against traffic and asked the suspect to stop;[27] or an officer "all but ran" at the suspect.[28]
"You're free to go": It is significant that officers told the suspect that he was free to leave.[29] Although such notification is not required,[30] it is recommended, especially in close cases.[31]
Qualified freedom to go: Any qualification on the suspect's freedom to leave or terminate the encounter will likely result in a detention; e.g., "You can leave after you answer some questions."[32]
Mixed signals: A "free to go" advisory is virtually irrelevant if officers conducted themselves in a manner that reasonably indicated that the suspect was not, in fact, free to leave; e.g., the officer used a "commanding tone of voice,"[33] the officer kept "leaning over and resting his arms on the driver's door."[34]
Officer's attitude: The officers' attitude toward the suspect and the manner in which they treated him are important—often pivotal.[35] For example, by explaining to the suspect why they wanted to talk with him, officers may effectively communicate that they were seeking his voluntary cooperation.[36]
Approach and ask questions: A detention does not result merely because an officer walked up to the suspect, flashed a badge or otherwise identified himself and—without saying or doing anything to indicate the suspect was not free to leave—began to ask questions.[37]
Incidental physical contact: While intentional physical contact to get the suspect's attention (e.g., shoulder tap) is a relevant circumstance,[38] mere incidental touching is considered insignificant.[39]
Officer-Safety Measures
: A suspect who is being contacted may, of course, pose a threat to officers. This can create a problem because many officer-safety precautions send the message that the suspect is being detained. To help resolve this dilemma, the courts have ruled that certain basic inquiries and requests pertaining to officer safety will not convert an encounter into a detention. But "overt displays of authority, such as drawing a gun or barking out peremptory commands, are not essential for police officers to establish control and curtail an individual's ability to leave."[40]
Remove hands from pockets: A detention will ordinarily not result if an officer requests that the suspect remove his hands from his pockets or keep them in sight.[41]
Exit vehicle: Commanding a suspect to exit a vehicle will likely result in a detention.[42]
Pat search: A nonconsensual pat search results in a detention.[43]
Handcuffs, other restraint: A detention results if officers physically restrained the suspect.[44]
Gun drawn or pointed: Drawing or pointing a firearm at a suspect will, in and of itself, usually result in a detention.[45]
Number of officers: The number of officers who initially contacted the suspect and the number of officers who arrived afterwards (if any) are highly relevant circumstances, as are the officers' proximity to the suspect and the manner in which they arrived and conducted themselves.[46]
Warrant checks: Running a warrant check without the suspect's consent will not automatically result in a detention,[47] but it can be problematic because it takes time to get the information—and during this time the suspect might reasonably believe he is not free to leave.
Requesting Identification
Command: A detention will result if an officer commanded the suspect to present ID.[48] Compare requests for ID.[49]
Taking temporary possession of ID: When the suspect presents his ID to the officer, a detention will not result merely because an officer took temporary possession of it.[50]
Retaining ID: A seizure may result if officers retained the suspect's ID it after confirming it was in order.[51] This is mainly because it may reasonably be interpreted as an indication the suspect was not free to leave. Conducting the Investigation
Questioning the suspect
Generally: While questioning per se will not convert a contact into a seizure,[52] it can be problematic if the suspect gives answers that are vague, nonresponsive, or unintelligible.[53] That is because such frustrating responses may cause officers to utilize threats or pressure that may reduce or eliminate the consensual mood of the interaction
Accusatory vs. investigative questioning: The courts distinguish between accusatory and investigative questions.
"Investigative" defined: Investigative questions imply that officers are merely exploring the possibility that the suspect might have committed a crime. While such questioning is "potentially incriminating," it is also potentially exonerating.[54]
"Accusatory" defined: Accusatory questions communicate to the suspect that the officers believe that he committed a crime, and that their objective is to obtain confirmation. See "Officers' attitude" (Accusations), above.
Accusations: Accusing a suspect of having committed a crime is apt to result in a de facto detention or arrest because it may reasonably be interpreted to mean that officers have probable cause.[55]
Threats: A de facto detention or arrest will result if officers coerced the suspect into answering their questions; e.g., "If you don't answer, we'll assume you're guilty."[56]
Persistent questioning: Even though a suspect agreed to answer some questions, he may resist giving straight answers. Consequently, officers must sometimes be persistent. It is unlikely that such persistence will convert the encounter into a detention unless the suspect refused to answer.[57]
Miranda warnings: If an encounter is merely a contact, officers should never Mirandize the suspect before asking questions.[58] This is because the ominous Miranda warning may reasonably be interpreted as an indication the officers believe he is guilty of a crime.
"You're free to decline": It is relevant that officers informed the suspect that he was not required to answer their questions.[59]
Field contact cards: A detention will not result if the suspect agreed to stay while officers completed the card if they were diligent and did not retain the suspect's ID without his consent.[60]
Requesting consent to search: A request to search will not convert a contact into a seizure unless the officers pressured the suspect into consenting.[61] Also see Chapter 16 Consent Searches (Voluntary Consent).
Requesting consent to transport: Officers will sometimes seek the suspect's consent to accompany them to some location such as a police station (e.g., for questioning, fingerprinting, or a lineup) or to the crime scene (e.g., for a showup). Again, such a request will not convert the encounter into a detention if officers made it clear to the suspect he was free to decline.[62]
Where should the suspect sit? The courts sometimes note whether the suspect was seated in the front seat, as opposed to the caged back seat.[63] If it is necessary or desirable to transport the suspect in the back seat, it would be relevant that officers explained that the reason; e.g., all patrol cars have cages, departmental policy.
Other Circumstances
Location of encounter: The location of the encounter is sometimes noted.[64]
Public places: Encounters that occur in places in which other people are present are viewed as somewhat less threatening than encounters in isolated places.[65]
Confined spaces: That the encounter occurred in a confined space (such as inside a bus) is somewhat relevant but seldom significant.[66]
Length of encounter: Although there is no set time limit, a contact may become too lengthy to be considered consensual unless the suspect freely agreed to stay longer.[67]
Notes
[1] USSC: Florida v.
Royer (1983) 460 US 491, 497 ["law enforcement officers do
not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place, by asking him
if he is willing to answer some questions, by putting questions to
him if the person is willing to listen"]. CAL: P v.
Franklin (1987) 192 CA3 935, 941 ["The basic premise behind
consensual encounters is that a citizen may consent voluntarily to
official intrusions upon interests protected by the
Constitution."]. OTHER: US v.
Werking (10C 1990) 915 F2 1404, 1408 ["A consensual
encounter is simply the voluntary cooperation of a private citizen
in response to non-coercive questioning by a law enforcement
official."].
[2] USSC: Florida v.
Bostick (1991) 501 US 429, 437 ["an individual may decline
an officer's request without fearing prosecution"];
Florida v. Royer (1983) 460 US 491, 497-98
["The person approached need not answer any question put to him;
indeed, he may decline to listen to the questions at all and may
go on his way."]; Illinois v. Wardlow (2000)
528 US 119, 125 ["when an officer, without reasonable suspicion or
probable cause, approaches an individual, the individual has a
right to ignore the police and go about his business."].
CAL: P v. Franklin (1987) 192 CA3 935, 941
["The citizen participant in a consensual encounter may leave,
refuse to answer questions or decline to act in the manner
requested by the authorities."]. NOTE: A refusal does not
provide grounds to detain. See Florida v. Bostick (1991)
501 US 429 ["a refusal to cooperate, without more, does not
furnish the minimal level of objective justification needed for a
detention or seizure"]; Illinois v. Wardlow (2000) 528 US
119, 125; INS v. Delgado (1984) 466 US 210, 216-17 ["But if
the person refuses to answer and the police take additional steps
to obtain an answer, then the Fourth Amendment imposes some
minimal level of objective justification"].
[3] USSC: US v.
Mendenhall (1980) 446 US 544, 553-54 ["Only when [a seizure
occurs] is there any foundation whatever for invoking
constitutional safeguards."]; Florida v.
Royer (1983) 460 US 491, 498 ["If there is no detention—no
seizure within the meaning of the Fourth Amendment—then no
constitutional rights have been infringed."]. CAL:
P v. Rivera (2007) 41 C4 304, 309
["Consensual encounters require no articulable suspicion of
criminal activity."].
[4] CAL: P v. Linn (2015) 241 CA4
46, 68, fn.10 ["recent empirical research suggesting that a
significant number of people do not feel free to leave when
approached by police, and even less so when police assert even
mild forms of authority," citing two law review articles and one
article from a publication called "Civil rights and Social
Justice"]; P v. Spicer (1984) 157 CA3 213, 218 [the
notion that a contacted suspect would ever feel perfectly free to
disregard an officer's requests may be "the greatest legal fiction
of the late 20th century"]; P v. Lopez (1989) 212
CA3 289, 291 ["Of course, in theory the citizen can refuse and
simply walk away. Whether this is an accurate assessment of street
reality is not for us to decide."]. OTHER:
US v. Knights (11C 2021) 989 F3 1281, 1293 ["if we are
being realistic—we know that a reasonable person in his place
likely would not have felt free to leave"];
US v. Tavolacci (DCC 1990) 895 F2 1423, 1425 ["The test has
been criticized as 'artificial' and as based on the false
assumption that ordinary citizens believe they are normally free
to cut police inquiries short."].
[5] 9th CIR: US v.
Ayon-Meza (9C 1999) 177 F3 1130, 1133 ["we must recognize
that there is an element of psychological inducement when a
representative of the police initiates a conversation; but it is
not the kind of psychological pressure that leads, without more,
to an involuntary stop."]. OTHER: US v. Dortch (8C
2017) 868 F3 674, 677 ["Admittedly, a civilian confronted by a
police officer might reasonably find it hard to refuse to answer
that particular question [i.e., are you carrying a gun], so we do
not read too much into this detail."]; US v.
Weaver (4C 2002) 282 F3 302, 311 [if the suspect had
decided to walk off, it "may have created an awkward situation"
but "awkwardness alone does not invoke the protections of the
Fourth Amendment"]; US v. Thompson (10C 2008)
546 F3 1223, 1226, fn.1 ["It might bring greater clarity to this
area of the law if the test were framed in terms of whether the
officer's behavior is coercive rather than whether, under the
circumstances, the reasonable person would feel 'free to disregard
the police,' which we suspect is unrealistic."];
US v. McCoy (4C 2008) 513 F3 405, 411 ["Although many
members of the public might feel uncomfortable when an officer
approaches them in this manner and asks to speak with them,
uncomfortable does not equal unconstitutional."].
[6] QUOTE FROM: Florida
v. Bostick (1991) 501 US 429, 436. USSC:
Brendlin v. California (2007) 551 US 249, 256-57;
US v. Drayton (2002) 536 US 194, 201 ["If a reasonable
person would feel free to terminate the encounter, then he or she
has not been seized."]; INS v. Delgado (1984) 466 US 210,
215. CAL: P v. Tacardon (2022) __ C5 __ [2022 WL
17984057] ["In situations involving a show of authority, a person
is seized if in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not
free to leave, or otherwise terminate the encounter"];
P v. Brown (2015) 61 C4 968, 977.
[7] QUOTE FROM:
Florida v. Bostick 1991) 501 US 429, 438.
[8] USSC: Florida v.
Royer (1983) 460 US 491, 519, fn.4 ["the potential
intrusiveness of the officers' conduct must be judged from the
viewpoint of an innocent person in Royer's position"]; US
v. Drayton (2002) 536 US 194, 202 ["The reasonable
person test is objective and presupposes an
innocent person."]; Florida v.
Bostick (1991) 501 US 429, 438 ["the 'reasonable person'
test presupposes an innocent person"]. CAL:
P v. Cartwright (1999) 72 CA4 1362, 1373 [the test
is how a "reasonable innocent person" would have viewed the
circumstances]; In re Kemonte H. (1990) 223 CA3 1507, 1512
[a reasonable innocent person in the defendant's position "would
not have felt restrained by two police officers approaching him on
a public street. From the officers' conduct in the instant case, a
reasonable person could only conclude that the officers wanted to
talk to him."]. OTHER: US v. Kim (3C
1994) 27 F3 947, 953 ["what a guilty passenger would feel and how
he would react are irrelevant to our analysis because the
reasonable person test presupposes an innocent person."];
US v. Tavolacci (DCC 1990) 895 F2 1423, 1424 ["The test
assumes a citizen not only reasonable but innocent of any
crime."].
[9] USSC: INS v.
Delgado (1984) 466 US 210, 216 ["While most citizens will
respond to a police request, the fact that people do so, and do so
without being told they are free not to respond, hardly eliminates
the consensual nature of the response."]. CAL:
In re Kemonte H. (1990) 223 CA3 1507, 1512
["Cooperative citizens may ordinarily feel they should respond
when approached by an officer on the street but this does not, by
itself, mean that they do not have a right to leave if they so
desire."]. OTHER: US v. McCoy (4C
2008) 513 F3 405, 411 ["uncomfortable does not equal
unconstitutional"].
[10] USSC:
Brendlin v. California (2007) 551 US 249, 260-61 ["The
intent that counts under the Fourth Amendment is the intent that
has been conveyed to the person confronted"];
California v. Hodari D. (1991) 499 US 621, 628 [the issue
is "not whether the citizen perceived that he was being ordered to
restrict his movement, but whether the officer's words and actions
would have conveyed that to a reasonable person"]. 9th CIR:
Morgan v. Woessner (9C 1993) 997 F2 1244,
1254 ["Although an officer's subjective belief is ordinarily
irrelevant to the question whether a citizen believes that he or
she is free to go, it becomes relevant if there is reason to
believe that the officer's belief was conveyed to the detainee."];
US v. Lozano (9C 2019) 916 F3 726, 730 [court erred in
considering age of teen suspect, noting "we have not applied any
standard other than an objective one that examines whether a
reasonable person would have felt free to leave"];
US v. Burden (DCC 2019) 934 F3 675, 695 ["Even though
Burden sometimes had trouble formulating responses and appeared to
lack perfect comprehension of all the questions, the evidence does
not suggest that it would have been apparent to a reasonable
officer that Burden was not understanding what was being said."].
[11] CAL: P v.
Cartwright (1999) 72 CA4 1362, 1371 [the suspect's
unmanifested belief that the officer would have prevented her from
leaving is immaterial]. OTHER: US v.
Thompson (7C 1997) 106 F3 794, 798 ["That Thompson
subjectively perceived [the officer's] actions as coercive does
not render them objectively unreasonable"];
US v. Analla (4C 1992) 975 F2 119, 124 [an encounter does
not become a seizure because the suspect testified that, based on
his prior experience with officers, he thought he would be
arrested if he tried to leave].
[12] USSC: US v.
Mendenhall (1980) 446 US 544, 554, fn.6 ["the subjective
intention of the DEA agent in this case to detain the respondent,
had she attempted to leave, is irrelevant except insofar as that
may have been conveyed to the respondent"]. CAL:
P v. Zamudio (2008) 43 C4 327, 345 [officer's
beliefs concerning the suspect's guilt are relevant "only if those
beliefs were somehow manifested to the individual being
interviewed"]; In re Manuel G. (1997) 16 C4 805, 821
["The officer's uncommunicated state of mind [is] irrelevant in
assessing whether a seizure triggering Fourth Amendment scrutiny
has occurred."]; P v. Bennett (1998) 68 CA4 396,
402, fn.5 ["The mere fact [that the officer] might and
probably would have stopped Bennett from leaving had he
chosen to do so is legally irrelevant."]; P v.
Ross (1990) 217 CA3 879, 884 ["The officer's state of mind
is not relevant for resolution of this question except insofar as
his overt actions would communicate that state of mind."];
P v. Bailey (1985) 176 CA3 402, 406 ["The officer's
statement as to his state of mind at the time he turned on his
emergency equipment, that the driver was not free to leave, is not
relevant. His communication of that state of mind by energizing
the signal to stop or to stay is relevant."];
In re Kemonte H. (1990) 223 CA3 1507, 1512 ["Officer
Lighten's subjective intention is irrelevant"]. 9th CIR:
Morgan v. Woessner (9C 1993) 997 F2 1244,
1254 ["Although an officer's subjective belief is ordinarily
irrelevant to the question whether a citizen believes that he or
she is free to go, it becomes relevant if there is reason to
believe that the officer's belief was conveyed to the detainee."].
[13] CAL: In re
Manuel G. (1997) 16 C4 805, 823 ["Even if [the officer]
stated in his radio broadcast that he was making a pedestrian
stop, that statement does not contradict [the officer's] testimony
that the encounter remained consensual until the minor threatened
him."]. OTHER: US v. Anderson (10C 1997) 114
F3 1059, 1064. ["The fact that [the officer] may have already
called for back-up because he intended to search the vehicle is
irrelevant, unless he communicated that intent to [the suspect] in
some way that made [the suspect] feel compelled to consent."].
[14] USSC:
Utah v. Strieff (2016) 136 US 2056, 2063 [the officer
"should have asked Strieff whether he would speak with him,
instead of demanding that Strieff do so"]. CAL:
P v. Tacardon (2022) __ C5 __ [2022 WL 17984057] [the
deputy "directed her to stand near the sidewalk, and she complied.
At this point, the woman was detained"]; P v. Bates (2013)
222 CA4 60, 65 ["A reasonable driver would not feel free to ignore
a uniformed officer standing next to a patrol car, possibly
gesturing with a raised hand, and would feel compelled to stop."];
P v. Verin (1990) 220 CA3 551, 556 ["when an officer
'commands' a citizen to stop, this constitutes a detention because
the citizen is no longer free to leave"]; P v.
Brown (1990) 216 CA3 1442, 1448 ["Stop"]; P v.
Rodriguez (1993) 21 CA4 232, 238 ["Stay there."];
P v. Foranyic (1998) 64 CA4 186 ["Get off your
bicycle, lay it down, and step away from it."]; P v.
Roth (1990) 219 CA3 211 ["Come over here. I want to talk to
you."]. 9th CIR: US v. Winsor (9C en
banc 1988) 846 F2 1569, 1573, fn.3 ["compliance with a police
command is not consent."]. OTHER: US v. McCoy (4C
2008) 513 F3 405, 411-12 [seizure resulted when the officer "told
him to put his hands on the trunk of the Eclipse in preparation
for a Terry frisk"].
[15] CASE REFERENCED
P v. Tacardon (2022) __ C5 __ [2022 WL 17984057].
[16] QUOTE FROM:
P v. Franklin (1987) 192 CA3 935, 941. CAL:
In re Manuel G. (1997) 16 C4 805, 821 [we consider "the use
of language or of a tone of voice indicating that compliance with
the officer's request might be compelled"]. OTHER:
US v. Jones (4C 2012) 678 F3 293, 303 ["A request certainly
is not an order [but it may convey] the requisite show of
authority"]; US v. Buchanon (6C 1995) 72 F3 1217, 1220,
fn.2 [although the trooper's words were phrased as a request, the
court listened to a recording of the incident and concluded that
his tone of voice was "one of command"].
[17] USSC: Berkemer v.
McCarty (1984) 468 US 420, 436 ["Certainly few motorists
would feel free either to disobey a directive to pull over or to
leave the scene of a traffic stop without being told they might do
so."]; Brower v. County of Inyo (1989) 489 US
593, 597 ["flashing lights" constituted a "show of authority"].
CAL: P v. Bailey (1985) 176 CA3 402, 405-6
["A reasonable person to whom the red light from a vehicle is
directed would be expected to recognize the signal to stop or
otherwise be available to the officer."]. 9th CIR:
US v. Kerr (9C 1987) 817 F2 1384, 1386 ["The
vast majority of automobile stops are initiated by police officers
using flashing lights or a siren and are clearly fourth amendment
seizures."]. OTHER: US v. Swindle (2C
2005) 407 F3 562, 566 ["any reasonable driver would understand a
flashing police light to be an order to pull over"].
COMPARE: Michigan v. Chesternut (1988) 486 US 567,
575 ["The record does not reflect that the police activated a
siren or flashers"]; US v. Summers (9C 2001) 268 F3 683,
687 [the officer "drove up to the trailer without activating his
lights or siren"]. BUT ALSO SEE: US v. Basher (9C
2011) 629 F3 1161, 1167 [the deputy "merely alerted Basher and his
son to the officers' presence by briefly sounding the siren and
announcing 'Sheriff's Department.'"].
[18] USSC: Brendlin v.
California (2007) 551 US 249, 254 [although an "unintended
person" may be detained, a detention results only if it was
"'willful' and not merely the consequence of 'an unknowing
act.'"]; Brower v. County of Inyo (1989) 489
US 593, 596-97. CAL: P v. Brown (2015) 61 C4 968,
980 ["we do not adopt a bright-line rule that an officer's use of
emergency lights in close proximity to a parked car will always
constitute a detention of the occupants"]. 9th CIR:
US v. Al Nasser (9C 2009) 555 F3 722, 731
["Although Al Nasser did stop, the lights and the vehicles that
caused him to do so were not a roadblock put in place to
accomplish that purpose."].
[19] CAL: P v. Brown (2015) 61
C4 968, 980 ["a motorist whose car had broken down on the highway
might reasonably perceive an officer's use of emergency lights as
signaling that the officer has stopped to render aid or to warn
oncoming traffic of a hazard"].
[20] CAL: P v. Brown (2015) 61
C4 968, 978 ["a reasonable person in Brown's position would have
perceived [the officer's] actions as a show of authority directed
at him"]; P v. Edgerrin J. (2020) 57 CA5 752, 759-60;
P v. Steele (2016) 246 CA4 1110.
[21] OTHER: US v.
Dockter (8C 1995) 58 F3 1284, 1287.
[22] CAL: P v. Tacardon (2022)
__ C5 __ [2022 WL 17984057] ["we believe a reasonable person would
distinguish between a spotlight and red and blue emergency lights
in considering whether the person was free to leave or otherwise
terminate the encounter"]; P v. Perez (1989) 211 CA3 492,
1496 ["while the use of high beams and spotlights might cause a
reasonable person to feel himself the object of official scrutiny,
such directed scrutiny does not amount to a detention"];
P v. Rico (1979) 97 CA3 124, 130 [the officer's initial
"momentary use of the spotlight" to observe the suspect vehicle's
occupants as he was driving next to them was not a detention "in
the absence of flashing lights, sirens or a directive over the
loudspeaker"].
[23] OTHER: US v. Knights (11C
2021) 989 F3 1281, 1287 ["we fail to see how a flashlight
communicated a show of authority under these circumstances"];
US v. Turner (8C 2019) 934 F3 794, 798.
[24] CAL: P v.
Wilkins (1986) 186 CA3 804, 809 [seizure resulted when the
officer "stopped his marked patrol vehicle behind the parked
station wagon in such a way that the exit of the parked station
wagon was prevented."]. 9th CIR: US v.
Kerr (9C 1987) 817 F2 1384, 1387 [defendant was detained
when, as he was backing his car down a one-line driveway, an
officer pulled into the driveway, thereby blocking his path].
OTHER: US v. Delaney (DCC 2020) 955 F3 1077, 1084
["By pulling the police cruiser to a stop in the parking lot's
exit lane and activating their take-down light, the officers made
clear that "this was not a routine encounter, but one targeted at
[Delaney]."]; US v. Jones (6C 2009) 562 F3
768, 772 ["Here, by blocking in the Nissan, the officers had
communicated to a reasonable person occupying the Nissan that he
or she was not free to drive away."]. COMPARE:
Michigan v. Chesternut (1988) 486 US 567, 575 [the officers
did not drive their car "in an aggressive manner to block
respondent's course or otherwise control the direction or speed of
his movement"]; US v. Drayton (2002) 536 US
194, 200 [Court notes that officers did not block the suspect's
path]; US v. Sanchez (10C 1996) 89 F3 715,
718 [the officer "did not obstruct or block Mr. Sanchez's
vehicle"]; US v. Jones (10C 2012) 701 F3 1300, 1314 [the
three troopers "did not encircle Defendant"];
US v. Taylor (1C 2007) 511 F3 878, 92 ["Taylor was not in
fact hemmed in from all sides and could have driven forward and
turned left to exit the parking lot."]; US v. Yusuff (7C
1996) 96 F3 982, 986 ["the officers stood several feet away from
Yusuff"]; US v. Thompson (10C 2008) 546 F3
1223, 1229 [although the patrol car blocked defendant's car, the
defendant was not inside his car when officers contacted him].
[25] CAL: P v.
Perez (1989) 211 CA3 1492, 1946 ["the officer parked his
patrol vehicle in front of defendant's vehicle and left room for
defendant's car to leave"]. 9th CIR:
US v. $25,000 (9C 1988) 853 F2 1501, 1504-4 [the officer
"was standing four to five feet away from [the suspect] and [the
suspect] could have easily walked around the pillar"]. US
v. Summers (9C 2001) 268 F3 683, 687 [no detention
because Summers' car "was parked and was only partially
blocked."]; US v. Kim (9C 1994) 25 F3 1426,
1431 [the officer only "partially blocked Kim's egress"].
OTHER: US v. Patterson (2022) 25 F4 123, 144-45
["police did not completely block the Camaro; the officers'
vehicles were all parked behind the Camaro"];
US v. Knights (11C 2021) 989 F3 1281, 1287 ["Instead of
parking alongside his car and engaging him in conversation, they
parked near his car—with enough space for him to drive away"];
US v. Mabery (8C 2012) 686 F3 591, 597 ["Mabery cites no
authority for the proposition that simply stopping a police car in
the entrance to a parking lot effects a seizure of everyone parked
there."]; US v. Taylor (1C 2007) 511 F3 87,
92 ["Taylor was not in fact hemmed in from all sides and could
have driven forward and turned left to exit"]; US
v. Analla (4C 1992) 975 F2 119 [no detention
occurred when officers parked their cars at 45 degree angles to
the suspect's car, not blocking it in].
[26] CAL: P v.
Franklin (1987) 192 CA3 935, 940 ["Certainly, an officer's
parking behind an ordinary pedestrian reasonably would not be
construed as a detention."]; P v.
Turner (1994) 8 C4137, 180 [officer merely "stopped near"
the defendant's vehicle; P v. Banks (1990) 217 CA3
1358, 1362 [officer stopped "behind defendant's car"];
P v. Brueckner (1990) 223 CA3 1500, 1505 [officer
parked "next to" suspect's car]. OTHER:
US v. Knights (11C 2020) 967 F3 1266, 1271 [officers parked
parallel to suspect's car such that Knights could have driven
away].
[27] CAL: P v.
Jones (1991) 228 CA3 519, 523 ["A reasonable man does not
believe he is free to leave when directed to stop by a police
officer who has arrived suddenly and parked his car in such a way
as to obstruct traffic."]; P v. Boyer (1989) 48 C3
247, 268 ["The manner in which the police arrived at defendant's
home, accosted him, and secured his 'consent' to accompany them
suggested they did not intend to take 'no' for an answer."].
OTHER: US v. Jones (4C 2012) 678 F3 293, 305 [the
officers "quickly approached Jones and nearly immediately asked
first that he lift his shirt and then that he consent to a pat
down," edited]. COMPARE: In re
Kemonte H. (1990) 223 CA3 1507, 1511-12 [officers merely
approached the suspect at a "semi-quick" pace];
P v. Turner (1994) 8 C4 137, 179-80 [court rejects the
argument that a detention occurred when an officer "stopped his
marked patrol car, backed up toward [the suspect's car] and then
followed it"].
[28] QUOTE FROM: P v.
Garry (2007) 156 CA4 1100, 1112.
[29] USSC:
Florida v. Royer (1983) 460 US 491, 504 ["by informing him
that he was free to go if he so desired, the officers may have
obviated any claim that the encounter was anything but a
consensual matter from start to finish"]. CAL: P v.
Profit (1986) 183 CA3 849 ["the delivery of such a warning
weighs heavily in favor of finding voluntariness and consent"];
P v. Daugherty (1996) 50 CA4 275, 280 [officer
"advised Daugherty she was not under arrest, she was free to go at
any time, and she did not have to speak with him."].
9th CIR: Morgan v. Woessner (9C 1993) 997 F2 1244,
1254 ["Although an officer's failure to advise a citizen of his
freedom to walk away is not dispositive of the question of whether
the citizen knew he was free to go, it is another significant
indicator of what the citizen reasonably believed."].
[30] USSC: US v.
Mendenhall (1980) 446 US 544, 555; Ohio v.
Robinette (1996) 519 US 33, 39-40.
[31] 9th CIR:
Orhorhaghe v. I.N.S. (9C 1994) 38 F3 488, 496 ["We have
previously held that officers' failure to provide such a warning
weighs in favor of finding a seizure."].
[32] OTHER: US v.
Sandoval (10C 1994) 29 F3 537 ["No one who is seated
in a law enforcement officer's vehicle after having been stopped
by the officer for a perfectly legitimate reason, and who then
asks whether the stop is at an end ('That's it?') and is
immediately told 'No' and to 'wait a minute,' can reasonably view
himself or herself as free to leave the patrol car."]; US
v. Beck (8C 1998) 140 F3 1129, 1136-37 [although the
suspect was told he was free to go, a detention occurred when he
was told he would have to consent to a search or wait for a canine
unit to arrive]; US v. Ramos, (8C 1994) 42 F3
1160, 1162-64 [although the driver's license was returned to him,
he was asked to remain in the patrol car while the officer spoke
with the passenger]; US v. Finke (7C 1996) 85
F3 1275, 1281 [although the suspect was told he was free to leave,
the officer notified him that a canine unit was en route for a
drug sniff]. COMPARE: P v. Daugherty (1996)
50 CA4 275, 284 [a "free to go" advisory was not conditional
merely because the officer added, "but, in fact" he would like to
ask her some questions].
[33] QUOTE FROM: US v.
Elliott (10C 1997) 107 F3 810, 814. OTHER:
US v. Sandoval (10C 1994) 29 F3 537,
541-42 [seizure resulted when, after the officer returned the
suspect's driver's license the suspect asked, "That's it?" and the
officer replied, "No, wait a minute."].
[34] QUOTE FROM: US v.
McSwain (10C 1994) 29 F3 558, 563.
[35] USSC: US v.
Drayton (2002) 536 US 194, 204 [officer spoke "in a polite,
quiet voice"]. CAL: P v. Franklin (1987) 192
CA3 935, 941 ["It is not the nature of the question or request
made by the authorities, but rather the manner or mode in which it
is put to the citizen that guides us in deciding whether
compliance was voluntary or not."]; P v.
Singer (1990) 226 CA3 23, 48 [the officers "seemed to act
cordially"]; Ford v. Superior Court (2001) 91
CA4 112, 128 ["Although petitioner was never told in so many words
that he was not under arrest or that he was free to leave, that
advice was implicit in the sergeant's apology for the time it was
taking to interview other witnesses."]; P v.
Ross (1990) 217 CA3 879, 884-85 ["It is the mode or manner
in which the request for identification is put to the citizen, and
not the nature of the request that determines whether compliance
was voluntary."]; P v. Epperson (1986) 187 CA3 115,
120 ["There was nothing in the officer's attitude or the nature of
the inquiry which would indicate to a reasonable person that
compliance with the officer's request might be compelled or that
defendant was not free to leave."]; In re
Frank V. (1991) 233 CA3 1232, 1239 ["Both the nature and
the manner must be examined."]; P v. Sanchez (1987)
195 CA3 42, 47 ["The record lacks any indication their dialogue
was coercive [there was] nothing apparent in [the officer's]
attitude or the nature of his inquiry to reflect compulsory
compliance"]; P v. Hughes (2002) 27 C4 287, 328 [the
conversation was "nonaccusatory, routine and brief"].
9th CIR: US v. $25,000 US Currency (9C
1988) 853 F2 1501, 1505 ["at no time did [the officers] raise
their voices"]; US v. Orman (9C 2007) 486 F3
1170, 1175 [the officer "politely asked him if he could have a
word with him"]. OTHER: US v. Kim (3C
1994) 27 F3 947, 953 [the officer's tone was "polite and
conversational"]; US v. Dockter (8C 1995) 58
F3 1284, 1287 [the officer's "tone of voice was inquisitive rather
than coercive." COMPARE: P v. Boyer (1989) 48
C3 247, 268 ["The manner in which the police arrived at
defendant's home, accosted him, and secured his 'consent' to
accompany them suggested they did not intend to take 'no' for an
answer."]; Orhorhaghe v. INS (9C 1994) 38 F3
488, 495 [the officer "acted in an officious and authoritative
manner that indicated that Orhorhaghe was not free to decline his
requests"]; US v. Buchanon (6C 1995) 72 F3
1217, 1220, fn.2 ["'Gentlemen, why don't you all come over here on
the grass a second if you would please' was phrased as a request,
but the officer's voice was one of command."].
[36] USSC: US v. Drayton (2002)
536 US 194, 198 ["I'm Investigator Lang with the Tallahassee
Police Department. We're conducting bus interdiction, attempting
to deter drugs and illegal weapons being transported on the
bus."]. CAL: P v. Spicer (1984) 157 CA3 213,
220 ["Had the officer made his purpose known to Ms. Spicer, it
would have substantially lessened the probability his conduct
could reasonably have appeared to her to be coercive."];
P v. Garry (2007) 156 CA4 1100, 1111-12 ["rather than
engage in a conversation, [the officer] immediately and pointedly
inquired about defendant's legal status as he quickly
approached"]. 9th CIR: US v. Crapser (9C 2007) 472
F3 1141, 1144 [the officer "explained to Twilligear why the police
had come to her motel room"]. OTHER: US v.
Thompson (7C 1997) 106 F3 794, 798 [the trooper "then
justified his desire to ask Thompson more questions by explaining
that part of his job was to prevent the transport of illegal guns
and drugs"]; US v. Gray (4C 1989) 883 F2 320, 323 [the
agent "informed Gray of the DEA's purpose and function"].
[37] USSC: Florida v.
Bostick (1991) 501 US 429, 434 ["a seizure does not occur
simply because a police officer approaches an individual and asks
a few questions"]; Florida v. Royer (1983)
460 US 491, 497 ["law enforcement officers do not violate the
Fourth Amendment by merely approaching an individual on the street
or in another public place, by asking him if he is willing to
answer some questions"]; Florida v. Rodriguez (1984) 469 US
1, 4-5 [the officer "showed his badge and asked respondent if they
might talk"]. CAL: P v. Bennett (1998) 68 CA4
396, 401-2 ["there is nothing in the Constitution which prevents a
police officer from addressing questions to anyone on the
streets"]; In re Kemonte H. (1990) 223 CA3 1507,
1511 ["The Fourth Amendment has not been violated where an officer
approaches an individual on a public street."]; P v.
Banks (1990) 217 CA3 1358, 1362 ["When a police officer
walks towards a suspect who is getting out of a car, there is no
restraint of liberty so as to bring the exclusionary rule into
play."]; P v. Derello (1989) 211 CA3 414, 427 "the officers
were doing exactly what they were lawfully entitled to do, which
is to approach and talk if the subject is willing"].
[38] USSC: US v.
Mendenhall (1980) 446 US 544, 554 ["physical touching" is
relevant].
[39] USSC: INS v.
Delgado (1984) (1984) 466 US 210, 220 [shoulder tap].
9th CIR: Martinez v. Nygaard (9C 1987)
831 F2 822, 826 [shoulder tap].
[40] QUOTE FROM:
P v. Edgerrin J. (2020) 57 CA5 752, 750.
[41] CAL: P v.
Franklin (1987) 192 CA3 935, 942 [the officer "asked, not
ordered appellant to remove his hands"]; In re
Frank V. (1991) 233 CA3 1232, 1239 [asking suspect to
remove his hands from his pockets "did not turn the encounter into
a detention"]; P v. Ross (1990) 217 CA3 879, 885
["while waiting for her to produce identification, [the officer]
'asked' but did not demand that appellant remove her hands from
her pockets"]; P v. Epperson (1986) 187 CA3 115, 118, 120
[officer asked the suspect to identify an object in his pocket].
9th CIR: US v. Basher (9C 2011) 629 F3
1161, 1167 ["Police officers routinely ask individuals to keep
their hands in sight for officer protection, and in this case the
request does not have been made in a threatening manner."].
OTHER: US v. De Castro (3C 2018) 905 F3 676, 682
[the officer made a "polite, and conversational request for De
Castro to remove his hands from his pockets, rather than an order
for him to show his hands"].
[42] CAL: P v. Rico (1979) 97
CA3 124, 130-31 ["While the appellants' initial stop did not
constitute a detention, the officer's subsequent ordering the
appellants to alight from their vehicle and remain by the patrol
car constituted a detention."]. OTHER:
US v. Warren (8C 2021) 984 F3 1301, 1303 ["Sir, can you
just stay in there for me, please?" did not constitute a seizure];
US v. Stewart (8C 2011) 631 F3 453, 456.
[43] CAL: In re
Frank V. (1991) 233 CA3 1232, 1240, fn.3 ["Since Frank was
physically restrained by the patdown, it constituted a
detention."]; P v. Rodriguez (1993) 21 CA4 232, 238
[suspect was patted down and told to sit on the curb].
OTHER: US v. Stewart (8C 2011) 631 F3
453, 456 [pat search is both a search and seizure].
BUT ALSO SEE: P v. Singer (1990) 226 CA3 23,
46-67 [routine pat searching of unarrested suspect before he
voluntary got into a police car for a ride to the station did not
convert the encounter into an arrest]; US v. Black (4C
2013) 707 F3 531, 538.
[44] CAL: P v.
Zamudio (2008) 43 C4 327, 342 ["no one was handcuffed or
patted down"]; In re Frank V. (1991) 233 CA3 1232,
1240, fn.3; P v. Gallant (1990) 225 CA3 200, 207;
Ford v. Superior Court (2001) 91 CA4 112, 128
["he was never handcuffed" and he "was left in the unlocked
backseat of the police car"].
[45] CAL: In re
Manual G. (1997) 16 C4 805, 821; P v.
Gallant (1990) 225 CA3 200, 207 [suspect was "ordered into
the house at gunpoint" and pat searched]. ALSO SEE:
US v. Patterson (2C 2022) 25 F4 123, 148 ["in cases of such
danger, this court appears, to date, not to have drawn any
categorical, bright lines distinguishing among unholstering,
displaying, and pointing a firearm"];
US v. Chan-Jimenez (9C 1997) 125 F3 1324, 1326 [the officer
"kept his hand on his revolver—possibly a desirable safety
measure, but one that also let [the suspect] know that there could
be adverse consequences for any failure to submit to authority"];
US v. Drayton (2002) 536 US 194, 204 ["That most law
enforcement officers are armed is a fact well known to the public.
The presence of a holstered firearm thus is unlikely to contribute
to the coerciveness of the encounter absent active brandishing of
the weapon."]; P v. Zamudio (2008) 43 C4 327, 346 [that the
officers "had badges and weapons and were wearing uniforms" has
"little weight in the analysis for determining whether a seizure
occurred"].
[46] USSC:
US v. Mendenhall (1980) 446 US 544, 554 ["the threatening
presence of several officers" is relevant]. CAL:
In re Manuel G. (1997) 16 C4 805, 821 [the "presence of
several officers" is a factor]; P v. Edgerrin J. (2020) 57
CA5 752, 760 [four officers standing at each door of suspect's
stopped car]. 9th CIR: US v. Mora-Alcaraz (9C 2021)
986 F3 1151, 1156 ["Mora-Alcaraz expected to meet a single police
officer and was confronted instead by four armed officers and two
police cars; at one point, one of the vehicles was blocking the
travel lane and flashing amber lights, creating a major
distraction from the otherwise familiar surroundings."];
US v. Washington (9C 2004) 387 F3 1060, 1068 [suspect "was
confronted by six officers" who were "around" him]. OTHER:
US v. Black (4C 2013) 707 F3 531, 538 ["Four uniformed
officers approached the men, a number that quickly increased to
six uniformed officers, and then seven."];
US v. Buchanon (6C 1995) 72 F3 1217, 1224 ["The number of
officers that arrived [three], the swiftness with which they
arrived, and the manner in which they arrived (all with pursuit
lights flashing) would cause a reasonable person to feel
intimidated or threatened by this type of police presence."].
COMPARE: US v. Kim (3C 1994) 27 F3 947, 954 [backup
officer "was out of sight"]; US v. Thompson (10C 2008) 546
F3 1223, 1227 ["while four officers were on the premises, only one
approached Mr. Thompson"]; US v. Yusuff (7C 1996) 96 F3
982, 986 ["the officers stood several feet away from Yusuff"];
US v. White (8C 1996) 81 F3 774, 779 ["Although there were
three officers present at the scene of the stop, [two of them]
were little more than passive observers"]; US v. Jones (10C
2012) 701 F3 1300, 1314 ["while there were three officers on the
scene, the officers' presence was nonthreatening," edited].
[47] CAL: P v.
Bouser (1994) 26 CA4 1280, 1286 ["commencing a warrant
check does not constitute a seizure per se but detaining a
person without cause until a warrant check is completed is
illegal"]; P v. Bennett (1998) 68 CA4 396, 402
["When asked whether he would mind waiting in the back of the
police car while [the officer] ran him for warrants, Bennett again
agreed"]; Barber v. Superior Court (1973) 30
CA3 326, 330 ["Officers are not at liberty to stop, intrude upon
and detain individuals they happen to come upon to determine if
there are warrants outstanding against him."]. OTHER:
US v. Weaver (4C 2002) 282 F3 302, 310; US
v. Analla (4C 1992) 975 F2 119, 124 [the officer
"did not take the license into his squad car, but instead stood
beside the car, near where Analla was standing"].
[48] USSC: Texas v. Brown (1979)
443 US 47 [if grounds to detain do not exist, officers may not
compel a suspect to produce ID]. CAL:
P v. Ross (1990) 217 CA3 879, 884-85 ["it is the mode or
manner in which the request for identification is put to the
citizen, and not the nature of the request that determines whether
compliance was voluntary"].
[49] USSC:
Florida v. Royer (1983) 460 US 491, 501 ["Asking for and
examining Royer's [plane] ticket and his driver's license were no
doubt permissible"]; Florida v.
Bostick (1991) 501 US 429, 437 ["no seizure occurs when
police ask to examine the individual's identification—so long as
the officers do not convey a message that compliance with their
requests is required, edited"]; INS v.
Delgado (1984) 466 US 210, 216 ["a request for
identification by the police does not, by itself, constitute a
Fourth Amendment seizure"]; US v.
Mendenhall (1980) 446 US 544, 555 [the officers "requested,
but did not demand to see the respondent's identification"];
US v. Drayton (2002) 536 US 194, 201 ["Even when law
enforcement officers have no basis for suspecting a particular
individual, they may ask for identification," edited.].
CAL: P v. Lopez (2016) 4 CA5 815, 825;
P v. Leath (2013) 217 CA4 344, 353 ["the Fourth Amendment
is not implicated when a police officer asks to see an
individual's identification card"]; P v.
Cartwright (1999) 72 CA4 1362, 1370 ["It is now well
established that a mere request for identification does not
transmogrify a contact into a Fourth Amendment seizure."];
P v. Franklin (1987) 192 CA3 935, 941 ["When a consensual
encounter has been found, police may ask for identification,"
edited.].
[50] CAL: P v. Linn (2015) 241
CA4 46, 63 [holding onto ID "may be considered as a factor" but is
"not alone definitive in resolving that question"];
P v. Leath (2013) 217 CA4 344, 353 ["The right to
ask an individual for identification in the absence of
probable cause is meaningless if the officer needs probable cause
to accept the individual's proof of identification."];
P v. Terrell (1999) 69 CA4 1246, 1254 [when asked for ID,
the suspect voluntarily handed over his driver's license].
NOTE: In P v. Castaneda (1995) 35 CA4 1222 the court
announced a bright line rule that an officer's act of taking ahold
of ID that the suspect presents automatically results in a
detention. This ruling has effectively been abrogated. See
P v. Linn (2015) 241 CA4 46, 67.
[51] USSC:
Florida v. Royer (1983) 460 US 491, 503 ["Royer's ticket
and identification remained in the possession of the officers
throughout the encounter. As a practical matter, Royer could not
leave the airport without them," edited.]; US v.
Mendenhall (1980) 446 US 544, 558 ["her ticket and
identification were returned to her before she was asked to
accompany the officers"]. CAL: P v. Linn (2015) 241
CA4 46, 67 ["The taking of defendant's driver's license would be
less significant if [the officer] had merely taken defendant's
driver's license, examined it, and promptly returned it to her."];
P v. Daugherty (1996) 50 CA4 275, 285 [the officer
"did not retain Daugherty's airline ticket or her bags"].
9th CIR: US v. Chan-Jimenez (9C 1997) 125 F3
1324 ["When a law enforcement official retains control of a
person's identification papers, such as vehicle registration
documents or a driver's license, longer than necessary to
ascertain that everything is in order, and initiates further
inquiry while holding on to the needed papers, a reasonable person
would not feel free to depart."]. OTHER:
US v. Analla (4C 1992) 975 F2 119, 124 [officer refused
suspect's request to return ID]; US v.
Lambert (10C 1995) 46 F3 1064, 1068 ["when law enforcement
officials retain an individual's driver's license in the course of
questioning him, that individual, as a general rule, will not
reasonably feel free to terminate the encounter"];
US v. Black (4C 2013) 707 F3 531, 538 ["We have noted that,
though not dispositive, the retention of a citizen's
identification or other personal property or effects is highly
material under the totality of the circumstances
analysis."]; US v. Jones (10C 2012) 701 F3 1300, 1315
[officer took the suspect's ID to a patrol car to run a warrant
check]. COMPARE: P v. Profit (1986) 183 CA3 849, 879
[there was "no retention of Profit's briefcase"];
US v. Gray (4C 1989) 883 F2 320, 323 [the officer "promptly
returned [the ID] after a brief examination"];
US v. Lockett (3C 2005) 406 F3 207, 211 [the officer "did
not retain Lockett's papers or identification"];
US v. Turner (10C 1991) 928 F2 956, 959 ["the inquiry
occurred after he returned defendant's license and registration"].
[52] USSC:
Florida v. Bostick (1991) 501 US 429, 434 ["we have held
repeatedly that mere police questioning does not constitute a
seizure"]; INS v. Delgado (1984) 466 US 210,
216 ["police questioning, by itself, is unlikely to result in a
Fourth Amendment violation"]; Muehler v.
Mena (2005) 544 US 93, 101 ["We have held repeatedly that
mere police questioning does not constitute a seizure."];
Florida v. Royer (1983) 460 US 491, 497 ["law
enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public
place, by asking him if he is willing to answer some questions, by
putting questions to him if the person is willing to listen"];
US v. Mendenhall (1980) 446 US 544, 555 ["As
long as the person to whom questions are put remains free to
disregard the questions and walk away, there has been no
[detention]."]. CAL: P v. Chamagua (2019) 33 CA5
925, 929 ["Asking questions, including incriminating questions,
does not turn an encounter into a detention."]; P v.
Bennett (1998) 68 CA4 396, 402 ["By now, it is generally
understood that there is nothing in the Constitution which
prevents a police officer from addressing questions to anyone on
the streets."]; In re Manuel G. (1997) 16 C4 805
["Approaching the minor in a public place and asking him questions
were not actions in themselves constituting coercive police
conduct that would lead a reasonable person to believe that he or
she was not free to leave"]; P v. Hughes (2002) 27
C4 287, 328 [the officer "approached defendant, inquired whether
he could assist him, and posed basic and preliminary questions to
establish whether defendant might possess information concerning
the crime"]. 9th CIR: US v. Ayon-Meza (9C 1999) 177
F3 1130, 1133 ["we must recognize that there is an element of
psychological inducement when a representative of the police
initiates a conversation. But it is not the kind of psychological
pressure that leads, without more, to an involuntary stop,"
edited].
[53] OTHER:
US v. Ringold (10C.2003) 335 F3 1168, 1174 ["Accusatory,
persistent, and intrusive questioning can turn an otherwise
voluntary encounter into a coercive one."].
[54] USSC: Florida v.
Bostick (1991) 501 US 429, 439 [a seizure does not result
merely because officers ask "potentially incriminating
questions"]; Florida v. Royer (1983) 460 US
491, 502 [the officers "informed him they were narcotics agents
and had reason to believe that he was carrying illegal drugs"].
CAL: P v. Zamudio (2008) 43 C4 327, 344 ["no
accusations were made against defendant" but the officers "told
defendant about the discrepancies between his statements and his
wife's]; P v. Daugherty (1996) 50 CA4 275, 285 [the
officer "did not directly accuse Daugherty of transporting
narcotics"]; P v. Lopez (1989) 212 CA3 289, 293 ["questions
of a sufficiently accusatory nature may by themselves be cause to
view an encounter as a nonconsensual detention; P v.
Boyer (1989) 48 C3 247, 268 [defendant "was subjected to
more than an hour of directly accusatory questioning [at the
police station], in which [an officer] repeatedly told
him—falsely—that the police knew he was the killer"].
OTHER: US v. Kim (3C 1994) 27 F3 947,
953 ["The tone of the question in no way implied that [the agent]
accused or believed that Kim had drugs"].
[55] USSC: Florida v.
Royer (1983) 460 US 491, 502 [the officers "informed him
they were narcotics agents and had reason to believe that he was
carrying illegal drugs"]. CAL: Wilson v.
Superior Court (1983) 34 C3 777, 790 ["an ordinary citizen,
confronted by a narcotics agent who has just told him that he has
information that the citizen is carrying a lot of drugs, would not
feel at liberty simply to walk away from the officer"];
P v. Lopez (1989) 212 CA3 289, 292 ["questions of a
sufficiently accusatory nature may by themselves be cause to view
an encounter as a nonconsensual detention"]; P v.
Daugherty (1996) 50 CA4 275, 285 [the officer "did not
directly accuse Daugherty of transporting narcotics, which may
have been sufficient to convert the encounter into a detention"];
P v. Boyer (1989) 48 C3 247, 268 [defendant "was
subjected to more than an hour of directly accusatory questioning
[at the police station], in which [an officer] repeatedly told
him—falsely—that the police knew he was the killer"]; P v.
Profit (1986) 183 CA3 849, 865 [the officer "made no
statement that he had information that the defendants were
carrying drugs"]. 9th CIR: US v.
Washington (9C 2004) 387 F3 1060, 1069 [suspect was
detained when officers told him he was "arrestable"].
OTHER: US v. Gonzales (5C 1996) 79 F3 413,
420 ["There is one troubling element: the officers informed
Gonzales that the car he was driving was suspected of being used
to transport drugs. This may have pushed the encounter, which was
initially consensual, to being a [detention]."].
[56] CAL: Parrish v.
Civil Service Commission (1967) 66 C2 260,
270-5 [threat to terminate welfare benefits]; Crofoot
v. Superior Court (1981) 121 CA3 717.
9th CIR: US v. Ocheltree (9C 1980) 622
F2 992, 994.
[57] USSC: INS v. Delgado (1984)
466 US 210, 216-17 [a seizure results "if the person refuses to
answer and the police [persist]"]. 9th CIR:
Morgan v. Woessner (9C 1993) 997 F2 1244, 1253 ["We find
that Morgan's unequivocal expression of his desire to be left
alone demonstrates that the exchange between Morgan and [the
officer] was not consensual."]. OTHER:
US v. Wilson (4C 1991) 953 F2 116, 122 ["but the
persistence of [the officers] would clearly convey to a reasonable
person that he was not free to leave the questioning by the
police"]. COMPARE: US v.
Sullivan (4C 1998) 138 F3 126, 133-34 ["the
repetition of questions, interspersed with coaxing, was prompted
solely because Sullivan had not responded," they "encouraged an
answer, but did not demand one"].
[58] CAL: P v.
Boyer (1989) 48 C3 247, 268 ["He was informed of his
Miranda rights, an indication that the officers themselves
believed the situation might be tantamount to custody."].
COMPARE: P v. Zamudio (2008) 43 C4 327, 343
[court notes the defendant "was not advised of his
Miranda rights, and was instead told [that] he was not
under arrest or in custody"].
[59] USSC: US v.
Washington (1977) 431 US 181, 188 ["Indeed, it seems
self-evident that one who is told he is free to refuse to answer
questions is in a curious posture to later complain that his
answers were compelled."]; Florida v. Bostick (1991) 501 US
429, 436 ["they specifically advised Bostick that he could refuse
consent"]; US v. Mendenhall (1980) 446 US
544, 559 ["the fact that the officers themselves informed the
respondent that she was free to withhold her consent substantially
lessened the probability that their conduct could reasonably have
appeared to her to be coercive"]; Schneckloth v.
Bustamonte (1973) 412 US 218, 249 ["the suspect's knowledge
of a right to refuse is a factor to be taken into account"].
CAL: P v. Profit (1986) 183 CA3 849, 866 [the
officer "did give comprehensive clarifying advice at the
time of the initial contact"].
[60] CAL: P v.
Bouser (1994) 26 CA4 1280, 1282; P v.
Harness (1983) 139 CA3 226, 230 ["All that is required [to
complete a card] is identification and description of the detainee
(which may be taken from the driver's license and visually
observed), the location and time of the stop, and the
interviewee's explanation of what he was doing."].
[61] USSC: Florida v.
Bostick (1991) 501 US 429, 437 ["request consent to search
his or her luggage [does not convert a contact into a detention]
so long as the officers do not convey a message that compliance
with their requests is required"]; Florida v.
Royer (1983) 460 US 491, 497 ["the State has the burden of
proving that the necessary consent was obtained and that it was
freely and voluntarily given"]. OTHER: US v.
Dilly (5C 2007) 480 F3 747, 749 ["Once the government has
demonstrated consent, the next issue is whether it was
voluntary."]; US v. Wilson (4C 1991) 953 F2 116, 122
[persistent request to search].
[62] USSC:
US v. Mendenhall (1980) 446 US 544, 557-58 [suspect "was
not told that she had to go to the [police] office, but was simply
asked if she would accompany the officers"]. CAL:
Ford v. Superior Court (2001) 91 CA4 112, 125 ["The Fourth
Amendment does not prevent a person from agreeing to accompany
officers to the police station and remain their for
interrogation."]; P v. Zamudio (2008) 43 C4 327, 344 [there
was "no command associated with the officers' request that
defendant come to the police station"]; P v. Hughes (2002)
27 C4 287, 329 ["defendant freely consented [to] being transported
in handcuffs to the police station for further questioning"];
In re Gilbert R., (1994) 25 CA4 1121, 1126 ["a reasonable
person would have believed that he or she did not have to
accompany the detectives to the Hollenback station"].
COMPARE: Hayes v. Florida (1985) 470 US 811, 812
[suspect was told he would be arrested if he did not consent to
accompany officers to the police station for fingerprinting];
P v. Boyer (1989) 48 C3 247, 268 [the "manner in which the
police arrived at defendant's home, accosted him, and secured his
'consent' to accompany them suggested they did not intend to take
'no' for an answer"].
[63] CAL: P v.
Zamudio (2008) 43 C4 327, 342 ["There was no cage between
the car's front and backseats"]; Ford v.
Superior Court (2001) 91 CA4 112, 128 [suspect "was left in
the unlocked backseat of the police car"].
[64] USSC: Florida v.
Bostick (1991) 501 US 429, 437 ["Where the encounter takes
place is one factor, but it is not the only one."];
Michigan v. Chesternut (1988) 486 US 567, 573
["the setting in which the conduct occurs" is a consideration].
[65] USSC: INS v.
Delgado (1984) 466 US 210, 218 [workplace]. CAL:
P v. Epperson (1986) 187 CA3 115, 120 [hallway of a
hotel]; P v. Profit (1986) 183 CA3 849, 879 ["a
public area"]; P v. Sanchez (1987) 195 CA3 42, 47
["on a public street"]. 9th CIR: US v.
Washington (9C 2004) 387 F3 1060, 1068 ["hallway of [the
suspect's] apartment building"]. OTHER: US
v. Thompson (10C 2008) 546 F3 1223, 1227 ["the
presence of other citizens during a police encounter is one factor
suggesting consensual nature"]; US v.
Yusuff (7C 1996) 96 F3 982, 986 ["busy, public area of the
airport"]; US v. Lockett (3C 2005) 406 F3
207, 211 ["open public area" in an Amtrak station].
[66] USSC: Florida v.
Bostick (1991) 501 US 429, 439 ["The cramped confines of a
bus are one relevant factor."]. CAL: P v.
Spicer (1984) 157 CA3 213, 218 [inside suspect's car].
OTHER: US v. West (DCC 2006) 458 F3 1,
13-14] [contact on bus not automatically a seizure].
[67] USSC: INS v.
Delgado (1984) 466 US 210, 219 ["nothing more than a brief
encounter"]. CAL: P v. Bouser (1994) 26 CA4
1280, 1283 [the "whole incident took around 10 minutes"];
P v. Castaneda (1995) 35 CA4 1222, 1226 ["about
eight minutes"]; P v. Terrell (1999) 69 CA4 1246,
1254 [about three minutes].