SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Chapter 2
Consensual Encounters:
General Rule: Contrary to a not uncommonly held belief that law enforcement
contacts with private citizens require some articulable reason to be lawful, it is a
general rule that any peace officer may approach and contact any person in public,
or anywhere else the officer has a legal right to be, and engage that person in
conversation. (Wilson v. Superior Court (1983) 34 Cal.3 rd 777.)
No “probable cause” or even a “reasonable suspicion” is needed. (See
below)
The law does not prohibit an officer from approaching any person in a
public place and engaging that person in uncoerced conversation. (People
v. Divito (1984) 152 Cal.App.3 rd 11, 14; Florida v. Royer (1983) 460 U.S.
491 [75 L.Ed.2 nd 229].)
“(L)aw enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or
in another public place, by asking him if he is willing to answer
some questions, (or) by putting questions to him if the person is
willing to listen.” (Florida v. Royer, supra, at p. 497 [75 L.Ed.2 nd
at p. 236].)
It does not become a detention (see below) merely because an officer
approaches an individual on the street and asks a few questions. (In re
Manual G. (1997) 16 Cal.4 th 805, 821.)
But: The person contacted is free to leave and need not respond to
an officer’s inquiries. (See below)
Test: Would a reasonable person under the same or similar circumstances feel
that he or she is free to leave? (Wilson v. Superior Court, supra, at p. 790,
quoting from United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2 nd
497, 509]; Desyllas v. Bernstine (9 th Cir. 2003) 351 F.3 rd 934, 940; Martinez-
Medina v. Holder (9 th Cir 2010) 616 F.3 rd 1011, 1015.)
It is not what the defendant himself believes or should believe. (In re
Manual G., supra, at p. 821.)
If a reasonable person would not feel like he has a choice under the
circumstances, then the person contacted is being detained, and absent
sufficient legal cause to detain the person, it is an illegal detention.
(People v. Bailey (1985) 176 Cal.App.3 rd 402.)
© 2011 Robert C. Phillips. All rights reserved
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