In this space last week, we looked at a case of police confronting a man, asking him whether he was armed, and requesting that he show his hands. The issue was whether the officer and his colleagues had detained the fellow. That depended on whether a reasonable person in the defendant’s position would have felt free to disregard the cops and walk away. Remarkably enough, the federal appeals court deciding that question answered it, “Yes.”
To enforce what they call a Terry stop—often a precursor to search and arrest—officers must have reasonable suspicion of criminal activity. But they don’t need anything to strike up a conversation with someone in public or to ask a few casual questions. It’s that zone between “How ya doin’?” and “Stop! Don’t move!” that keeps courts busy.
All in the Circumstances
According to the U.S. Supreme Court, an officer may approach, identify him or herself as a member of law enforcement, and begin to ask questions without having “detained” the interlocutor. (Florida v. Royer, 460 U.S. 491 (1983).) On the other hand, a detention can be implicit, perhaps as when several officers confront the subject. Other circumstances that point toward detention include an officer displaying a weapon, touching the citizen, or using forceful language or a stern tone of voice. (U.S. v. Mendenhall, 446 U.S. 544 (1980).)
A particularly sticky situation arises when an officer asks for—but doesn’t demand—someone’s identification. Really now, how many among us wouldn’t feel significant pressure to comply? Regardless though, the reality is that courts tend to view ID requests along the lines of routine conversation.
The U.S. Supreme Court once somewhat famously ruled that there was no detention when out-of-uniform agents approached a woman at an airport, identified themselves, and requested her ID and ticket. (Mendenhall, supra.) Other courts have followed suit, holding that an ID request does not a detention make. (See, for example, U.S. v. $25,000, 853 F.2d 1501 (9th Cir. 1988).)
But that isn’t the end of the story. States are free to expand basic freedoms beyond what the federal constitution provides. So, while the U.S. high court has the final say on what does and does not constitute a detention under the Fourth Amendment, state courts are free to decide the same under their own constitutions. That is, they’re free to diverge from SCOTUS’s rulings on the U.S. Constitution as long as they side with the defendant.
That’s exactly what a New Jersey court did in 1999. It found that an officer’s approaching a parked car, identifying himself, showing his badge, and asking to see the driver’s “credentials” constituted a detention. The court concluded that a reasonable person in the driver’s position, who hadn’t done anything to deserve the inquiry, wouldn’t have felt free to leave. (State v. Egan, 325 N.J. Super. 402 (N.J. Super. Ct. Law Div. 1999).)
But even in New Jersey, a request for identification isn’t the end of the story. Actually, the general rule there appears to be that a request for ID, standing alone, doesn’t transform an encounter into a detention. (State v. Sirianni, 347 N.J. Super. 382 (App. Div. 2002).)
In the end, it can be pretty tough to say when a person has or hasn’t been detained. The determination depends not only on the facts, but also on where in the country the encounter occurred. And common sense isn’t necessarily the guiding principle.