Officers Approach to Parked Car Found To Be A Consensual Encounter

By Brian S. Batterton

United States v. Douglass, No. 05-2608, 2006 U.S. App. LEXIS 27400 (7th Cir. 2006)

All law enforcement officers are taught in the police academy that there are three types of officer/citizen encounters. The first type is a consensual encounter. Consensual encounters do not require reasonable suspicion or probable cause as long as a reasonable person would feel free to leave or decline to speak with the police. ⁱ The second type of encounter is the investigatory detention which is commonly known as a Terry stop. Investigatory detentions enable the police to briefly detain a person for further investigation where the officer has reasonable suspicion to believe the person stopped is involved in criminal activity. ⁱⁱ The third type of officer/citizen encounter is an arrest which must be supported by probable cause.

On October 30, 2006 the 7th Circuit Court of Appeals decided a case which illustrates the difference between consensual encounters and Terry stops. In United States v. Douglass, two officers responded to dispatch of a physical assault of a female by several males. ⁱⁱⁱ The anonymous complainant stated the males were battering a female in a parking lot on Stanton Street next to a dark blue car with Illinois tag 744568. The officers arrived at the incident location within five minutes of the dispatch and observed a male, later identified as Douglass, standing alone next to a vehicle that matched the description and tag referred to in the dispatch. The car’s engine was running and the lights were on. The officers parked their police car “head on” twenty feet from the suspect vehicle; Douglass had meanwhile gotten into driver’s seat. The officers recognized Douglass from seeing him driving the car earlier and one had prior knowledge that Douglass had previously been convicted of homicide. The two officers approached the suspect vehicle with one on the driver’s side and one on the passenger side. One officer asked Douglass for identification and whether he knew anything about a fight in the parking lot. Douglass refused to answer the officers and remained silent as he reached repeatedly toward the gear shift lever. During this encounter, the back-up officer shined his flashlight into the car and observed a round of .380 caliber ammunition on the driver’s side floorboard. He alerted the other officer of the possibility of a gun.

At this point, the officer drew his weapon and ordered Douglass out of the car. Douglass, while looking around for an escape route, repeated “no, I can’t, no, I can’t.” At this point, one officer attempted to open the car door but it was locked. He sprayed pepper spray in Douglass’ face through a partially open window in an attempt to stun Douglass while he unlocked the door. However, Douglass was able to flee in his vehicle around the police car and out of the parking lot.

The officers gave chase and Douglass quickly pulled off of the road and fled on foot. The officers pursued Douglass on foot and ordered him to stop. After a brief foot chase, Douglass gave up and walked back to the officers where he was placed on the ground and handcuffed. During a search incident to arrest of Douglass’ person, no weapons were found. An officer went back to Douglass’ car and found another round of ammunition on the front seat, in addition to the one on the floor. While retracing the path that Douglass’ car traveled, an officer found a .380 caliber pistol about thirty feet from the final stopping point of the car. Although neither officer was able to see Douglass throw anything from the car, the pistol was dry even though it had been raining that night, thus indicating that it had been there only a short amount of time.

Douglass was charged with possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). He filed a motion to suppress the gun arguing that it was discovered as a result of an investigatory detention that was initiated without reasonable suspicion. The government argued that the initial encounter with Douglas was a consensual one, and as such, the officers did not need reasonable suspicion. Douglass’ motion to suppress was denied and he appealed. This brings us to the issue before the court in this case:

Was Douglass seized during the initial encounter with the officers when they approached his car, requested identification and questioned him about the fight or was this initial encounter consensual?

The 7th Circuit Court of Appeals considered the following pertinent facts of the initial encounter:

This was initially a very brief and unintrusive encounter;
The officers had not drawn their weapons on the initial approach to Douglass;
The officer’s stance on each side of Douglass’ car did not block his path and he could have refused to speak to them and driven away (as he eventually did);
The officers only asked a few, brief questions;
The police car was parked twenty feet away and did not block Douglass’ path; and
Douglass’ own action of his initial escape proved the fact that officer’s had not blocked him in.

In light of the above facts from the initial encounter, the Court held that a reasonable person in Douglass’ situation would have felt free to leave, as Douglass ultimately did. ^iv Furthermore, the Fourth Amendment is not triggered when officers merely approach a person in a public place and ask, without demanding cooperation, a few questions ^v . Thus, it was during the course of this consensual encounter that the officers saw the ammunition; this observation, combined with the description match from the dispatch and the knowledge that Douglass was a convicted felon, provided them probable cause to believe that Douglass was violating federal and Illinois statutes that barred the possession of ammunition by convicted felons. ^vi

The case does not end there however. Douglass also argued that, even if the initial encounter was consensual, viewing the ammunition alone did not provide probable cause for his arrest because the officers did not verify whether or not he met one of the exceptions to the federal and state ban on possession of ammunition by convicted felons. In response to this, the Court noted that, in establishing probable cause, police officers are not required to anticipate all possible defenses to seemingly criminal activity. ^vii Additionally, the Court quoted 7th Circuit precedent which states

The validity of the arrest does not depend on whether the suspect actually committed the crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. ^viii

Therefore, as long as probable cause is present, an arrest is valid. Thus, when the officers, during the course of the consensual encounter based upon a dispatch of a fight, found the vehicle described in the dispatch and observed ammunition in vehicle with a convicted felon, the officers met the threshold of probable cause. When combined with the suspect’s flight and the traffic offenses he committed, the court held that the ultimate arrest that led to the discovery of the pistol was lawful. It is also important to note that, although the officers, had probable cause to arrest when viewing the ammunition, the arrest did not actually occur until Douglass submitted to the officers show of authority. ^ix

In conclusion, when conducting consensual encounters, officers should attempt to abide by the following:

Do not block the citizen’s path, either with your person or police vehicle;
Speak in normal tone of voice rather than giving authoritative commands;
Request, rather than demand, to speak with the citizen;
Avoid pointing guns at the citizen (unless necessary to protect yourself, in which case the encounter will probably not be deemed consensual from the point the weapon is drawn); and
Avoid intimidating movements or gestures.

In considering the factors above, remember that the key question the courts will ask is whether the words or conduct used by the police officer would lead a reasonably objective person to believe they were not free to leave, refuse the officer, or otherwise terminate the encounter. ^x

Citations:

Florida v. Bostick, 501 U.S. 429 (1991)
Terry v. Ohio, 392 U.S. 1 (1968)
2006 U.S. App. LEXIS 27400 (7th Cir. 2006)
Id. at 9.
United States v. Drayton, 536 U.S. 194, 200 (2002)
18 U.S.C. §921(a)(20); 720 Ill. Comp. Stat. 5/24-1.1(a)
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)
United States v. Osborn, 120 F.3d 59, 62-63 (7th Cir. 1997)
see California v. Hodari D., 499 U.S. 621, 628-629 (1991)
Florida v. Bostick, 501 U.S. 429 (1991)

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