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Consensual Encounters with Law Enforcement: “Am I Free to Leave?”

     The Fourth Amendment to the United States Constitution protects you from unreasonable government searches and seizures. The Ohio Constitution provides similar protections. Depending on the circumstances, those protections may apply when you are confronted by the police. The law generally recognizes three types of interactions with police officers: consensual encounters, investigative detentions, and arrests. The type of encounter you experience significantly impacts your rights and obligations, and in some cases, your criminal prosecution. 

Q:   What is a consensual encounter?
A: 
 A consensual encounter occurs when a police officer approaches you and engages you in conversation, but you remain free not to answer and to walk away. The encounter remains consensual even if the officer asks you questions, or asks to examine your identification or your belongings, as long as the officer does not suggest that you must comply. 

Q:   Is a police officer allowed to ask me questions even if I’m not suspected of doing anything illegal?
A:
   The police do not need “reasonable suspicion” or “probable cause” to start a consensual encounter with a member of the public. A police officer may approach you and ask you questions at any time. However, during such a consensual encounter, you are always free to leave if you no longer wish to talk.

Q:   How can I tell if I am having a consensual encounter?
A: 
 When asked to decide if an encounter was consensual, courts will examine whether a reasonable person would have felt free to leave. Courts will consider all of the surrounding circumstances in making that determination. However, because each situation is unique, the line between a consensual encounter and an investigative detention is not always obvious. The situation will determine whether your Fourth Amendment rights are involved. 

If you are approached by a police officer, are unsure of the reason, and do not wish to answer any questions, you may ask, “Am I free to leave?” Unless the officer believes he or she has at least “reasonable suspicion” to detain you further, the answer to your question should be “yes.” When in doubt about whether the encounter is consensual, you should ask, “Am I free to leave?” Walking away from a police encounter without giving an explanation, however, is not a good idea.
 
Q:   What about my Fourth Amendment rights?
A:
   Your Fourth Amendment rights are not at issue if your encounter with police is consensual. However, if a police officer has, by physical force or show of authority, restrained your freedom such that a reasonable person would not feel free to decline the officer’s requests or end the encounter, then the encounter is not consensual and the Fourth Amendment applies.
 
Q:   What if the police take my driver’s license?
A:
   A police request to see your identification does not necessarily turn a consensual encounter into an investigative detention, so long as you remain free to decline the request. Furthermore, Ohio courts have held that if a police officer takes and keeps your identification, you have been “seized” under the Fourth Amendment, and you are no longer involved in a consensual encounter.

Q:   Must I reveal my personal information during a consensual encounter?
A:
   No. If an officer asks for your name, address, or date of birth, you are not required to provide it during a consensual encounter.  However, if the police have “reasonable suspicion” that you are committing, have committed, or are a witness to a wide range of possible offenses, you may be found guilty of a separate criminal offense if you do not provide that information.

Because it is difficult to know whether an officer has the required “reasonable suspicion,” you may want to provide your name, address, or date of birth if asked. However, you are not required to provide any other information. Also, if your age or date of birth is an element of an offense that you are suspected of having committed, such as underage drinking, you are not required to provide that information.
 
Q:   Must the police read me my “Miranda rights” during a consensual encounter?
A: 
 No. Police officers do not have to read you your “Miranda rights” during a consensual encounter. However, whether you are informed of your “Miranda rights” is not a reliable indicator of the type of interaction you are having with the police.
 
Q:   Does this mean that I should not talk to the police?
A: 
 No, but understanding the bounds of the government’s authority when interacting with the police is always important. Finally, when in doubt about the situation, simply ask, “Am I free to leave?” The answer to that basic question will have an important impact on your rights.

2/28/2013

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Assistant State Public Defender Jeremy J. Masters of the Office of the Ohio Public Defender.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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