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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