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https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/400713906/chapter-excerpt-5090173.pdf

Voluntary Encounters

Street contacts

An officer may approach a citizen and have a consensual conversation and ask questions without any level of suspicion—as long as no detention is involved. An officer/citizen contact remains “voluntary” as long as the officer does not restrict the freedom of the citizen, either by physical conduct or verbal direction. Another question courts consider in assessing the voluntariness of an officer/citizen contact is whether a reasonable person would feel free to turn and walk away from the encounter. As long as a reasonable person believes that he or she can “disregard the police and go about his or her business,” the encounter remains voluntary.

Florida v. Bostick, 501 U.S. 429 (1991). If a reasonable person in similar circumstances would not feel free to leave, then the encounter has turned into a “seizure.” United States v. Ringold, 335 F.3d 1168 (10th Cir. 2003), cert. denied, 540 U.S. 1026 (2003). Simply asking a citizen for identification, without any command or show of force, remains a voluntary encounter. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County, 542 U.S. 177 (2004) (“In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.”); United States v. Drayton, 536 U.S. 194 (2002). “A police officer does not have to inform the citizen they are free to disregard any further questioning for the encounter to be consensual.” United States v. Manjarrez, 348 F.3d 881 (10th Cir. 2003), cert. denied, 541 U.S. 911 (2004).

The United States Supreme Court has ruled that mere questioning by police does not create a detention. Muehler v. Mena, 544 U.S. 93 (2005). The Supreme Court upheld the officers’ questioning of Mena, whom they were detaining while officers executed a search warrant in her residence. Officers asked Mena questions about her immigration status during a search for weapons and suspects connected to a shooting. The lower court ruled that the officers were required to have independent reasonable suspicion in order to question her about her immigration status because her status was not related to the purpose of the search warrant. The Supreme Court reversed, holding that “mere police questioning does not constitute a seizure” under the Fourth Amendment. “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” Though Mena was detained and handcuffed for approximately three hours, the questioning about her immigration status did not prolong her detention and did not create an additional seizure. Therefore, no independent reasonable suspicion was required to support the questioning. The Court relied on its decision in Illinois v. Caballes, wherein the Court ruled that conducting a drug detector dog sniff during a traffic stop does not violate the Fourth Amendment if it does not extend the stop beyond the time normally required to complete the purpose of the original detention. Illinois v. Caballes, 543 U.S. 405 (2005).

For example, an officer walks up to a group of high school students at a football game, suspicious that some of the students may have been throwing water balloons into the crowd. The officer greets the students and asks their names. As long as the officer does not do anything such as block the exit path, give nonverbal signals of detention, or use command language, the encounter remains voluntary. The officer may ask the students if they were involved in the balloon tossing or if they have any information, and still no detention will be created.

If the officer approaches the students and tells them not them not to move, or waves them to stop or come toward him, the officer has exercised enough control that the encounter may well be ruled a seizure. Thus, reasonable suspicion of criminal activity will be required to make the detention lawful. The difference between seizure and voluntary encounter, as well as the difference between encouraging cooperation or generating hostility, often depends on the officer’s tone and language. Remember: you can be perfectly tactically aware with a smile on your face!