Law Enforcement Bulletin 

Question: Does an officer’s subjective intent in questioning someone turn a consensual encounter into an investigative detention?

Quick Answer: No, the test for determining whether an encounter is consensual is objective, not subjective.

Facts: Officer Smith drove by Clelland and observed him sitting on a guardrail near a school in the hot sun. Approximately 45 minutes later he observed Clelland in the same spot. He pulled up near him and started a conversation while still seated in his cruiser. When he asked his name, Clelland misspelled it. Upon asking for his Social Security number, Clelland provided a seven-digit number. Asked if he had any outstanding warrants, Clelland replied, “Yeah, I think I do.” When Officer Smith’s partner opened his door, Clelland fled on foot. Upon apprehending Clelland, officers found crack cocaine on his person. Clelland filed a motion to suppress, which was denied by the trial court. He appealed, arguing the police officer’s subjective intent in questioning him rendered the encounter a seizure. The court noted the proper test is an objective one. Based on the facts -- the officers were seated in a cruiser; they didn’t activate their lights or siren; they remained seated with weapons holstered until Clelland admitted to having warrants -- the court upheld the denial of the motion to suppress.

Keep in Mind: In determining whether an encounter is consensual, it is important to consider whether a reasonable person in the suspect’s position would feel free to leave.