Citizen, a couple of questions.
I read your links.
So in the case of a stop, you suggest asserting the refusal to consent and then just continue the refusal?
I've seen where people walk away. Would it be better to stay and just refuse consent or attempt to walk away?
First, please understand that the word
stop has a particular meaning.
Stop is short for Terry Stop from the court case
Terry vs Ohio. A
stop is a seizure. It is involuntary. This is why I use the word
encounter. An encounter can be either voluntary (consensual) or involuntary (seizure), the word encounter covers both types until it becomes necessary to distinguish which type we're talking about.
So, lets assume you meant an encounter, rather than a stop.
Personally, I don't favor trying to walk away. Here is my rationale: Cops are very good at keeping it uncertain as to whether you are seized. I think it arises maybe partly from something to do with them not answering questions on their part. Maybe to keep the suspect off balance. But, I don't doubt also because the cop gains little by declaring a detention, and increases his liabilities. As soon as he makes it a detention, he must have genuine RAS. Whereas, if he can keep the suspect talking without declaring a seizure, and if he can keep the involuntariness foggy, he avoids to a greater degree having his evidence suppressed in court. Plus, he knows he needs the suspect's cooperation in order to get information that can be used against the suspect. If he gets too tough, the suspect will clam up and wait for a lawyer. If the cop has not developed probable cause before the clam up, his chances of making an arrest plummet. So, you've got a cop in whose best interest it is to keep the nature of the encounter--consensual or involuntary--foggy and uncertain in the mind of the detainee.
But, what happens when the cop figures he's got reason to detain the suspect involuntarily? The suspect isn't sure he's being detained and the cop is sure he can detain, but doesn't tell the suspect. What's gonna happen when the suspect starts to walk away? Uh-ho. At the least, the suspect is gonna get grabbed hard and stood back in place, or forced to sit down on a curb. And, what if it is a cop with a god complex? I don't wanta get proned out and handcuffed all because the cop was deliberately making it foggy as to whether I was seized. And, what if it is a cop who relishes submission? Meaning he's looking forward to using some force on me. By starting to walk away, I just gave him justification enough for his own mind to prone me out, cuff me, maybe start shouting "stop resisting", etc. Who knows, maybe he's feeling a little deprived on opportunities to use his tazer. I don't wanta find out.
Thus, I ain't leaving until I have his permission or he leaves or something makes it clear to me he's not going to assault me.
Regarding refusing consent to an encounter, think of it as a game of chess. The cop makes the first move by presenting his person and speaking to me. I only have a few options this early in the game. I prefer the move that yields maximum legal advantage at least cost while avoiding the most liabilities.
Also, keep this in context. For example, if I'm walking down the sidewalk and a cop calls out to me from inside his parked patrol car in a non-authoritative tone from the curb and asks if we can talk in an obviously consensual tone, I might completely ignore him and keep walking without even stopping. On the other hand, if two cops block the sidewalk in front of me, a third takes up position behind me, and one in front demands, "I wanta see sum ID!", then I know I'm seized, and the refused consent to an encounter just becomes a formality--an important one--but it doesn't really establish the involuntariness because that was already determined. For myself, I've concluded that the first move for me is to take advantage of a point of law* and politely, expressly refuse consent to an encounter.
*I got this idea about refusing consent to an encounter from reading a court opinion.
Christian v Commonwealth, I think. In the text of the opinion, the court quoted an earlier case. That earlier case said (paraphrase) Fourth Amendment jurisprudence in Virginia recognizes three types of police-citizen encounters. Consensual encounters, brief minimally intrusive investigatory detentions based on articulable facts, and highly intrusive custodial arrests. Hey! Cool! Lots of folks know we can refuse consent to searches. Lots of folks know we can refuse to answer questions. But, what about refusing consent to the encounter itself? I mean, think about it. You can refuse to answer questions, but the cop can stand there asking questions whether you refuse to answer or not, meaning the questions and refusal are a part of the encounter, but the encounter itself is the fact of being in each other's presence--its the physical presence and proximity that makes the encounter. Not whether I stand mute. And, the court just told me they already recognize whether an
encounter is consensual. So, it stands to reason, without any stretch, that I can
declare my unwillingness to have an encounter with a cop.
You see, most of the cases you will read on this exact point deal with courts figuring out whether to suppress information or evidence discovered during a police encounter. In these cases, the court is weighing the totality of the circumstances to figure out wether the suspect was being detained and whether the cops had legal justification for that detention. Stuff like, four cops, hands on guns, harsh tones, giving commands. OK, the court says a detention occurred. Then the court looks at whether the confidential informant or walking down the street at night was enough to give genuine RAS. Then the court makes a determination about whether the lower court properly suppressed or allowed the evidence obtained during the encounter. But, wait a minute!! The only reason the court was examining whether the encounter was consensual was because the suspect
never said one way or the other whether he consented to hang around with the police.
Also, in that context of figuring out whether a detention occurred, the courts use a "reasonable person" standard. Based on all the circumstances would a reasonable person feel free to disregard a cop and walk away. (US v Mendenall quotes it) The courts are using the "reasonable person" standard in the context of setting an objective standard to fill the void in the absense of a clear refused consent from the citizen. And, that is in the context of the cops providing all the circumstances--numbers of cops, show of authority, tone of voice of the cop, etc. Well, now. How about the citizen providing a circumstance? And, setting aside the need for a "reasonable person" standard to fill a void? As in, the citizen says, "I do not consent to an encounter." Pretty clear it isn't a consensual encounter from that point on, isn't it?
In the first FlexYourRights video,
Busted How to Survive a Police Encounter, there is the example of the black teen on the park bench who says, "Officer, I got nothing to say to you." This is a refusal to answer questions. It
implies a refusal to encounter, but leaves the door open to cops hanging around. And, if they are hanging around, they're going to ask more questions, typically conversational gambits about why you don't wanta talk unless you have something to hide.
But, the courts handed us that beautiful gem of a quote where the encounter itself, not just any conversation or searches, can be consensual. The court that wrote that said not only that it is willing to recognize whether an encounter is consensual, but that the law
already recognizes it. Heh, heh, heh. OK. I'll take it.
"Officer, no offense. I know you're just doing your job. But, I do not consent to an encounter with you."