Report: “Consensual” Police Encounters a Myth

Posted by Steve Eversole | Aug 31, 2013 | 0 Comments

It's common knowledge that an officer must have, at the very least, reasonable suspicion before he or she can lawfully detain you for questioning on suspicion of a criminal matter.

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However, many people have beenarrested in Alabama and beyond after submitting to questioning via a legal loophole known as a "consensual police encounter." It essentially works like this:

While an officer without reasonable suspicion can't lawfully detain you against your will, there is nothing stopping the officer from requesting a consensual conversation with you. That is, that you agree to talk and answer questions of your own free will.

The problem with this notion is that there is an inherent imbalance of power when we start to analyze encounters between police officers and members of the public. An officer is armed with weapons, including a gun and likely a Taser. He or she might even have access to a K-9 unit and back-up from fellow-officers. He or she has handcuffs and the power to arrest you, virtually on a whim. The word of an officer will almost always be placed on a higher pedestal than that of the average citizen in a court of law.

So even assuming the officer is sweet as pie in his or her request to speak to you, how "consensual" is the counter, truly? How free is a person in reality to refuse to speak to an officer upon request without suffering some sort of repercussion?

A new study, recently published in the Florida Coastal Law Review,suggests that the whole concept of a "consensual" encounter with police is basically a myth. Researchers structured the study like this:

More than 80 undergraduates at a medium-sized, southern university were subjected to unexpected contact with campus security officers in the course of an average school day. These students, having done nothing wrong, were under no obligation whatsoever to speak to the officers. While the officers were not told to inform the students the conversation was voluntary (as would mirror a police encounter in any other circumstance), they were also instructed not to follow students who ignored or walked away from them.

Officers were to press students for their names, identification and reason for being on campus. Students were under no legal obligation whatsoever to comply. And yet, all of them did.

When asked why, they gave answers ranging from respect for authority to a belief that they didn't have a choice.

Granted, the scope of this study is fairly limited. Younger people may be more apt to have an inherent respect for authority than someone who is older. Additionally, these individuals, having done really nothing wrong, probably did not perceive any risk to themselves by speaking with officers. The fact that it was a southern university too, as opposed to perhaps a liberal campus on the West Coast, may have also played a role in students' reactions.

Still, it's a strong example of the lack of power people feel in these situations. Many times, these encounters end up only hurting the defendants who participate.

The bottom line is that if you do not wish to talk to an officer, make that wish expressly known. If he or she has reasonable suspicion for detaining you, your desire not to be stopped may not matter. However, if the officer is considering the conversation "consensual," your clear and vocal desire not to participate should force the conversation to end.

If you have been arrested in Birmingham, call Defense Lawyer Steven Eversole at (866) 831-5292.

Additional Resources:

New Research Supports the Notion that There is No Such Thing as a "Consensual" Police Encounter, Aug. 15, 2013, By Justin Peters, Slate.com

About the Author

Steve Eversole

Admitted to practice in All State and Federal Courts in Alabama: AllAlabama State Courts, Alabama Supreme Court, Alabama Court of Appeals,Northern...

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