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Mythbusting #2- You Do Not Have To Stop For Police “Just To Talk”

Do I have to stop and talk to police when they ask me to?

Yes and no (but often the answer is no)

To answer this question, one must be familiar with some basic legal concepts related to the law of “seizure,” a concept derived directly from the text of the Fourth Amendment to the United States Constitution which reads, in pertinent part:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

Whether or not an individual is required to stop and speak with police when asked to do so requires an understanding of how the Fourth Amendment to the U.S. Constitution applies to everyday citizen encounters with law enforcement. Quite simply, it requires an understanding of the meaning of the word “seizure”.

As a starting point, one must understand that when an individual has been “stopped” by police, whether they are on foot or in a car, the stop constitutes a “seizure” under the Fourth Amendment and Article I, § 8 of the Pennsylvania Constitution. While not every police encounter constitutes a seizure under the law, a seizure occurs where the police indicate to a person, by words or action, that the individual is not “free to leave.”[1] According to the Pennsylvania Supreme Court in Commonwealth v. Lyles, 97 A.3d. 298 (Pa. 2014) a seizure occurs where suspect has “in some way been restrained by physical force or show of coercive authority.” Lyles, 97 A.3d. at 302. So, “seizure” can be broadly defined as the use of physical force or a show of coercive authority that would indicate to a person that they are not free to leave.

In order for law enforcement to seize an individual, there must be adequate legal basis to do so. The law recognizes three basis “levels” of police encounters:

  1. “Mere encounter” (NOT A SEIZURE): Police ask you to stop and talk to them. It does not require any level of suspicion or carry any official compulsion to stop or respond.
  2. Investigative Detention: Permits the temporary detention of an individual if supported by “reasonable suspicion” that a crime has been or is being committed.
  3. Arrest or Custodial Detention: Must be supported by “probable cause”

Of primary importance in this article is understanding the “mere encounter”-a situation where police approach an individual, often on the street, and ask if they can speak with you. Pennsylvania courts and the Supreme Court of the United States have consistently held that a seizure does not occur where officers merely approach a person in public and question the individual or request to see identification. However, it is important for people to understand that they do not have to comply with these requests. In fact, you are free to ignore the police in this situation. According to the Pennsylvania Supreme Court:

Officers may request identification or question an individual “so long as the officers do not convey a message that compliance with their requests is required.” Although police may request a person’s identification, such individual still maintains “‘the right to ignore the police and go about his business.’ Com. v. Lyles, 97 A.3d 298, 303 (Pa. 2014)

So, the bottom line is this: If you are approached by police on the street and they ask to speak with you, you are free, if you chose to, to tell the police you are busy and you do not have time to talk. So often, people are unaware of this basic concept and police will exploit your unfamiliarity with this rule. As an experienced criminal defense attorney, I have handled countless cases that began as “mere encounters” but ended with an arrest because my client did not know they could simply walk away. Consider this example:

An individual is walking down College Avenue here in State College, Pennsylvania minding their own business when a police officer approaches them and says “excuse me sir, we’ve had some complaints in the area recently and I was wondering if you could show me some ID and tell me where you are going and what you are doing here?” In such a situation, the individual would be well within their rights to ignore the police and go about their business. As a practical matter, I would advise the person to say “I’m sorry officer. I can’t talk. Am I free to leave?” at which time the officer would likely say yes. If the officer says “no you are not free to go”, then the individual has been seized under the law. If the officer lacked proper justification for seizing the individual, i.e. reasonable suspicion that the individual was involved in crime or probable cause for arrest, any evidence or statements that the officer obtains as a result of the seizure should be suppressed as the result of an unreasonable seizure.

Unfortunately, too many times the same individual is not aware that they are free to leave. In some circumstances, the police will even ask for consent to search the individual or bags that they are carrying. If that individual consents, the police will use anything illegal they find against that person.

It is impossible to list the various ways in which an individual can be seized by law enforcement. Each situation requires careful factual, step by step analysis and an understanding of how an interaction between police and a citizen began and escalated. It often happens that an interaction begins as a “mere encounter” and quickly escalates to an investigate detention and ultimately to arrest. Only an experienced criminal defense attorney can analyze the facts and advise you.

As a general rule, always ask police if you are free to leave.

As a criminal defense attorney here in State College, Pennsylvania, I have represented countless people charged with crimes ranging from very minor offenses to violent felonies. In almost all cases, I will have to answer questions put to me by my clients about the way they were treated by the police. More often than not, my answers surprise my clients who typically have some serious misconceptions about what the police are and are not allowed to do. Not only have I devoted my professional career to understanding the permissible contours of a police-citizen encounter, I also had the privilege of teaching a class on this material at Tufts University , a prestigious school outside of Boston, Massachusetts. This article is the second in a series of articles discussing what police are and are not allowed to do.

[1] The “free to leave” test was first set forth in the seminal U.S. Supreme Court case United States v. Mendenhall, 466 U.S. 544 (1980)(“a person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not fee to leave”)