The Myth of the ‘Consensual’ Police Encounter

by Mark Wilson

As far as the Supreme Court is concerned, you’re in police custody when (1) the police physically restrain your liberty; e.g., by placing you in handcuffs, or (2) when you’re in a situation where a reasonable person wouldn’t feel free to leave. When you’re in the back of a squad car, in a jail cell, or in handcuffs, you’re clearly “in custody.” But what about when police are in your living room? Or when they’re on a bus, blocking the exit? Are you in custody then?

The answer is important. Police don’t have to read the Miranda warning unless you’re both in custody and being interrogated. Appellate lawyers argue all the time about whether the defendant was “in custody” at the time of the questioning, meaning the confession should have been suppressed at trial. Custody is also helpful for determining whether you’re involved in a Terry stop. New York’s “stop and frisk” law—recently ruled unconstitutional as applied—is a form of the Terry stop, which is a brief detention an officer uses to confirm or deny that the target of the stop is about to be, or recently has been, involved in criminality. If you’re being “detained”; i.e., a reasonable person wouldn’t feel free to leave, then during the Terry stop, police can conduct a limited pat-down of your outer clothing if they have reason to believe you’re armed and dangerous.

You’re not in custody, however, if your interaction with the police is consensual. A consensual stop is the flip side of a detention or being in custody. The Supreme Court has always maintained that there are situations in which a reasonable person would feel free to leave. If you continue the police encounter even when a reasonable person would feel free to leave, then guess what? You’re not in custody anymore; now you’re in a “consensual encounter,” which sounds more like a really lame erotic lawyer thriller. And that means a whole host of prophylactic measures designed to prevent police abuse of authority (including the Miranda warnings) no longer apply. Because, hey, you’re choosing to be there. It’s not like the police are forcing you to stay.

But the authors of a new article in Florida Coastal Law Review conducted a semi-scientific survey of eighty-three undergraduates at a “medium-sized, southern private university” in which the students were approached by campus security and asked what they were doing there. All eighty-three students answered the officers’ questions. After the encounter, they were asked why they didn’t leave. Routinely, their reasons centered around the officers’ authority.

It would be even more interesting to do this experiment again with students of different races and look at the race breakdown. As LeVar Burton mentioned on CNN a few months ago, as a black person, he’s got to be extremely conscious of his actions when he’s stopped by police. He has to acquiesce to authority in a way that no white person will ever have to; otherwise, the officer could perceive his actions as a threat and use deadly force.1 In the real world, a well-mannered white person could get away with asking, “Am I being detained?” and then walk away. But a black person? These days, just about anything innocuous counts as a “furtive movement.” Being shot by the police is probably a statistically unlikely scenario, but being booked on the often-specious charge of “obstruction of justice” or “resisting arrest” is much more likely.

In any case, the acquiescence to authority is alarming, especially as the Supreme Court continues to chip away at Miranda and especially as multiple big-city police departments use “stop and frisk” in unconstitutional ways. Back when Miranda was decided, the Court used contemporary statistics and other information (including police department manuals advising officers on the finer points of coercive interrogation) to conclude that police interrogation had gotten out of hand. This law review article is hopefully the beginning of more data-driven analysis about the existence (or not) of the reasonable person who would feel free to leave.

1. Critics who sniff at the existence of “white privilege”—almost all of whom are conservative white men—don’t believe this is a thing because the pre-textual stop is something they’ll never, ever experience in their lives. Ever. Never. In holding part of New York’s stop and frisk policy unconstitutional, Judge Scheindlin noted that 87% of stop and frisk targets were either black or Hispanic. To say nothing of state “immigration” laws that allow officers to ask suspects for proof of immigration status. How many of them are white?