Slate writes up a story involving a search that began when a policeman approached a man on a bicycle to initiate a conversation. After noticing the man fidget, he was searched and a small amount of crack cocaine was found, which then led to a five year prison sentence.
The search was judged legal because it was consensual. Either party could have walked away from it - but is this in fact true? Would you feel comfortable walking away from a police officer who wanted to have a casual conversation with you? Might doing so give the officer the impression that you have something to hide? Is this a lose / lose situation?
. . . what interests me about this case is the way the appeals court characterized the initial contact between June and Young as a “consensual encounter.” The Florida Supreme Court classifies police encounters into three distinct levels: consensual, investigatory, and arrest. A consensual encounter is one into which each party enters willingly—a beat cop and a storekeeper exchanging greetings, for instance. It can be terminated by either party at any time with no consequences. You can’t initiate a search during a consensual encounter, and you can’t initiate an investigatory encounter without “a well-founded, articulable suspicion of criminal activity.”
The idea of a consensual encounter is a nice one, conjuring an image of lovers sneaking away for some mutually fulfilling afternoon delight. But, in reality, a police officer who pursues a “consensual” conversation is often just looking to screw you. As Janice Nadler and J.D. Trout note in their fascinating paper “The Language of Consent in Police Encounters,” many consensual engagements are pretexts for less-consensual behavior. “The police officer’s main purpose is to get information about what the person is doing, and get permission to do something else, like search their person, house, car, bags, etc.,” they write.
Police officers don’t just initiate conversations because they’re bored and want to talk sports with a stranger. (That’s what call-in shows are for.) They stop you because they can generally tell if you’re suspicious or “up to something,” and because they know the average person doesn’t feel they’re in a position to decline a conversation with a cop. Although courts tend to interpret consensuality based on surface-level cues—whether the police officer was polite, for instance—there’s always more going on. The unspoken power dynamics in a police/civilian encounter will generally favor the police, unless the civilian is a local sports hero, the mayor, or a giant who is impervious to bullets.
