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Media > Newsletters > Law Enforcement Bulletin > June 2014 > Legal Review: Consensual Encounters to Terry Stops

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Legal Review: Consensual Encounters to Terry Stops

Stops are one of the most dangerous parts of your job as a law enforcement officer. Whether you’re on foot or in your cruiser, stopping a stranger is an encounter with the unknown. It is the conflict point between law enforcement and the individual, and it’s also where everything can go right or everything can go wrong.
You know the proper police procedure for officer safety when making a stop — you don’t even have to think about it. Reviewing the legal basics of stops will help you become more familiar with those requirements, and they’ll eventually become second nature to you as well. Getting these encounters right from the outset is the best way to ensure that any evidence you uncover doesn’t get thrown out on a legal technicality.
The Right to Walk Away
Consider a consensual encounter. You have this kind of encounter every day when you buy a cup of coffee, say hello to a stranger, talk to your child’s teacher, or approach a co-worker for help. A consensual encounter happens when you approach someone in public to engage them in conversation.
The most important aspect of this encounter is the person has the right to end the conversation at any point and walk away from you. This encounter can even stay consensual if you ask for identification or ask to search the individual. Remember, you can ask but you cannot demand. Any person in a consensual encounter has the right not to give you his identification or have you search her belongings.
But be careful, a consensual encounter can quickly change to a seizure based on your actions and whether the individual believes he can leave. If you detain an individual through force or authority, he has been “seized” and all of his constitutional protections kick in.
One way to keep your consensual encounters consensual is to think, “How would this play out if I weren’t wearing a badge and uniform?” So imagine you see a couple of kids hanging out at a park. You walk up to them and ask, “What are you guys doing today?” There’s nothing wrong with that. You haven’t detained them; you’ve only engaged them in the same kind of consensual encounter that any other citizen could.
But what if one of them looks at you and says, “None of your business,” and walks away? Well, he’s absolutely allowed to do that. And if you weren’t wearing a badge and uniform, no one would think their behavior was criminal (maybe rude, but not criminal). In fact, if you have kids and one of them told you, “Some stranger came up to me at the park and asked me what I was doing, but I just walked away and didn’t answer,” you might think, “Good job!” 
The minute you say anything like, “Hey, I’m talking to you, get back here,” you’re getting into stop-and-detain territory. The power to stop someone is what sets you apart from a random stranger, but it’s the same power that escalates a consensual encounter to a stop. 
You can stop a person explicitly by telling him to stop, ordering him to answer a question, blocking his path, or grabbing him. You can stop him implicitly by displaying your weapon, surrounding him, or suggesting there might be consequences if he doesn’t obey you. The courts will look at all the factors surrounding the interaction to determine whether a reasonable person would have felt he was being stopped. 
Asking for ID
Asking for identification during a stop may be routine, but what you do with the ID after receiving it could change a stop from consensual to a seizure. For example, you walk up to a group of individuals on a public sidewalk to ask what they are doing and ask to see their identification. Up to this point, this is a consensual encounter. They have the right to walk away or refuse to give you identification.
But what if the individuals hand you their IDs? If you take the identifications and go to your cruiser to run warrant checks, you might convert a consensual encounter to a stop. This is because while you’re sitting in your cruiser with their IDs, they can’t really go anywhere, and so a reasonable person in the same situation would believe they were no longer free to leave.
So how can you ask for identification and keep it a consensual encounter? Well, you can take the identification, step back to your cruiser, write down the information, and give back the ID. As law enforcement, you may jot down information presented to you verbally or in writing without triggering the Fourth Amendment.
Moving into Terry Territory
In particular situations, Ohio law allows you to demand an individual give you his personal information during a stop. A refusal to answer you is a misdemeanor. Under Ohio Revised Code Section 2921.29, a law enforcement officer may demand a person’s name, address, or date of birth when the officer reasonably suspects the person is committing, has committed, or will commit a criminal offence. It also allows personal information to be demanded from witnesses to criminal offenses. Once you have enough reasonable suspicion to demand information under R.C. 2921.29, you have enough to make a Terry stop.
Between a consensual encounter and an arrest is the Terry stop — a brief detention to investigate an individual. It must be done with “reasonable articulable suspicion” that the individual is or was doing something criminal.
So what does that mean? Reasonableness is judged on an “objective law enforcement officer” standard. In other words, would the “average” law enforcement officer seeing what you see and knowing what you know have the same actions or reactions as you? “Articulable suspicion” means suspicion you can articulate, in other words: the specific and objective facts or reasons why you had the suspicion and made the stop. In other words, “articulable” is the opposite of saying, “I just had a hunch he was up to no good.”
The court will look at the totality of the circumstances — such as the location of the stop, your knowledge about the suspect and the alleged criminal activity, and the suspect’s behavior — to determine if you had articulable suspicion. No one factor outweighs the others.
Consider the following factors and how the court will scrutinize them:
  • Confidential informants: You can rely on informants if you know them and they previously provided you with reliable information. It also helps to corroborate the information the informant provides.
  • High crime areas: While not enough on its own, the fact that you know an area has a characteristic for a certain kind of crime can be a factor to make the stop if the stop is for the kind of crime known in the area. For example, an area of town is known for heroin and you stop an individual because you suspect he is a heroin dealer.
  • Suspect’s behavior: In general, you are able to consider the behavior of a suspect as a factor to make the stop. This is especially true when the suspect’s behavior changes upon noticing you. If a suspect is nervous and evasive, that can be one factor to justify reasonable suspicion. An attempt to flee has to be more than briskly walking away from law enforcement; it must be an attempt to run.
Solidifying your understanding of the subtle lines between consensual encounters, Terry stops, and seizures is important during those conflict points to protect yourself and your evidence. The good news is that your behavior and actions control those lines.
But remember, the lines are constantly being reviewed by courts. It is important to keep up-to-date on the latest Fourth Amendment court decisions. The Ohio Police Officer Training Academy offers courses on Fourth Amendment topics. Its upcoming Legal Training (Nov. 12) and Arrest, Search, and Seizure (Aug. 4 and Oct. 9) classes cover search, seizure, arrest, and Miranda. You can also reach out to your local legal counsel for updates.