The Myth of “Free to Leave:” Why Police Can Stop and Question You Without Probable Cause
Can police stop you for questioning as you are walking down the street? Are you “free to leave” when police officers with guns visible say, “Hey, can I ask you a few questions?”
If you are driving on the highway, police must have probable cause to stop your vehicle and detain you on the side of the road. Once the purpose of the traffic stop is over, with few exceptions, the courts have held that law enforcement must let you go on your way.
Even in cases where police have manufactured a “consensual encounter” after handing you the ticket, the courts have held that it creates a second, unconstitutional detention and consent to search is invalid unless there is a reasonable, articulable suspicion that there is some criminal activity that needs investigating.
But what if you are walking down the street?
If you are driving, you cannot be stopped without probable cause. If you are walking, you have no such protection because the courts have created a “legal fiction” that you are “free to leave” anytime you like even though three or four police officers with guns are standing around you…
The Legal Fiction of “Free to Leave”
No reasonable person who has ever been questioned by police believes that you are “free to leave” when police officers approach and begin asking you questions.
Well… privileged, wealthy supreme court justices who have never had an unfriendly encounter with police might feel that they are free to leave… I mean, if Chief Justice John Roberts is walking down the street and a police officer says, “Hey, come here a minute,” he would probably feel entitled to say, “No thank you, I’m in a hurry to get home” without consequence.
Of course, he may also be in for a rude awakening if the officers do not know who he is, and he doesn’t tell them…
What about the rest of us? Does the average black male walking on an otherwise empty street feel free to leave when an armed policeman approaches him? What does the average black male in the United States think would happen if he says, “No, thank you” and walks away from a police officer (or three) on an empty street with no witnesses?
In State v. Spears, decided February 12, 2020, the SC Supreme Court held that a black male and his girlfriend were free to leave when three armed agents followed them from a bus stop, stopped them on the street, and began questioning them…
Three agents followed Spears and his girlfriend from a bus stop. As they were walking away, one of the agents testified he saw the girl hand something to Spears. After the police stopped Spears and his girlfriend, the agent testified that Spears kept putting his hands in his pockets after the agent told him not to:
I noted that while I was speaking with [Spears,] he continued to put his hands underneath his shirt and I guess the motion would be like puff his shirt away from his waistband. . . . I asked him to keep his hands where I could see them . . . because I didn’t know what if he was reaching in his pockets. He did it a couple more times, and I kept reminding him to cease putting his hands in his pockets . . . for officer safety regards[.] . . . So he continued to get frustrated, or he continued to put his hands in his pockets or pulled his shirt out, and I told him I was going to conduct a pat down of him so I could be sure he didn’t have any weapons on him or anything that was going to hurt me.
The Court found that this was enough “reasonable suspicion” to justify a “Terry frisk” – if someone is acting suspicious and there is reason to believe that they might be armed and dangerous, the officer can pat them down for the officer’s safety.
But, can the officer stop a person who is walking down the street in the first place? Without probable cause that there is criminal activity?
If You are “Free to Leave,” There is no Fourth Amendment Violation
Why did the police follow Spears and his girlfriend?
- They “were investigating a tip that two black males (Tyrone Richardson and Eric Bradley) were transporting drugs into South Carolina via one of the “Chinese bus lines.” Spears and his girlfriend did not fit this description.
- The bus was “known for harboring illegal activity.” But doesn’t that describe every bus? Does that mean police can stop and question any person who is riding a bus?
- Spears and his girlfriend “paid undue attention to the three plain-clothed agents.” Wouldn’t you? At least two of them had visible firearms, and they were following Spears at a “brisk walk” to catch up with him and his girlfriend.
That’s the sum total of why the police followed and stopped Spears. The Court goes on to explain why the encounter was consensual and Spears was free to leave at any time:
- “The agents did not move Spears and Jenkins to an isolated place to speak to them.” No, they just followed them down the street until they were in an isolated place before speaking to them…
- An agent asked, “in a non-threatening manner,” whether they would stop and speak with the agents. Spears “complied, engaged in small-talk with the agents, and gave them his ID.” There you go – consensual. Of course, what do you think would have happened if Spears had ignored the agents?
- “Agent Tracy informed Spears in general terms about prior issues involving illegal activity on the buses… Agent Tracy then inquired as to whether Spears had any weapons or illegal items.” This is a variation of the “Kansas two-step” that is used by police to attempt to turn a traffic stop into a “consensual encounter.” Inquiring as to whether a person has weapons or illegal items on them creates the opposite of a consensual encounter. No reasonable person will feel that they are free to leave at that point, yet the Court cites this as evidence that “a reasonable person would have felt free to walk away from the encounter.”
The officer’s testimony that Spears kept putting his hands in his pockets after being asked not to, plus the testimony that the agent saw the girlfriend hand him something, probably justified a Terry search for the officer’s safety.
But the officer would not have been in that position in the first place if they had not chased down and stopped Spears and his girlfriend on the street without probable cause that they had committed any crime.
Was Spears Free to Leave?
It’s no coincidence that the only SC Supreme Court Justice who believes Spears was not free to leave is also the only black justice on the Court.
Justice Beatty cites the extensive research regarding racial disparities in policing and the effect of police encounters on non-white citizens:
Spears is an African-American male. Scholars have examined ad nauseam the dynamics between marginalized groups—particularly African-Americans—and law enforcement. African-Americans generally experience police misconduct and brutality at higher levels than other demographics. Consequently, it is no surprise that scholars have also found African-Americans often perceive their interactions with law enforcement differently than other demographics. “For many members of minority communities, however, the sight of an officer in uniform evokes a sense of fear and trepidation, rather than security.” Robert V. Ward, Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No Place for a “Reasonable Person”, 36 How. L.J. 239, 247 (1993). Moreover, “[g]iven the mistrust by certain racial, ethnic, and socioeconomic groups, an individual who has observed or experienced police brutality and disrespect will react differently to inquiries from law enforcement officers . . . .”). Id. at 253. Unfortunately, under our existing framework, this can result in the evisceration of Fourth Amendment protections for many people of color.
Black Americans have a very different experience with law enforcement than many white Americans. I’m not sure that’s relevant here, though – I don’t think any person would feel that they are free to leave under these circumstances (most people can’t say “I’m a supreme court justice, I’m leaving, get over it.”
In his dissent, Beatty also cites other reasons that any person, regardless of race, would not have felt free to go:
Under the totality of the circumstances, a reasonable person in Spears’s shoes would not feel free to terminate the encounter with law enforcement. Spears was aware that he was being followed by three police officers. The agents followed him to a more isolated area and quickened their pace to catch up to him. In my view, a reasonable person in this situation would not feel free to continue walking and disregard the agent’s request to talk. As the Court of Appeals pointed out— correctly, in my opinion—the agents signaled to Spears that he was no longer free to continue walking when they increased their speed to catch up to him. Accordingly, Spears was arguably seized as soon as the police initiated contact.
Can police stop and question you without probable cause while walking down the street? Yes, they can. They can because state and federal appellate courts have created the legal fiction that you are free to leave and that most police encounters are consensual.
What will happen if you exercise your right to walk away? If you are incredibly fortunate, they will let you walk away and respect your constitutional rights (a legal fiction that does not resemble what actually happens on the streets of our country). Or, you may be detained and questioned further until the officer can articulate a reasonable suspicion that justifies a search (you are still arrested, but you will have a more interesting argument to suppress the evidence).
Or, you could be beaten or even killed. Nevertheless, as the Supreme Court says, you are free to leave and therefore have no Fourth Amendment rights until you try to walk away…
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