Can You Have a “Consensual” Encounter with a Law Enforcement Officer?

Posted on Dec 21, 2012

Imagine this: as you are riding your bike on the street, a uniformed officer in a police car pulls up behind you. The cop gets out and engages you in “friendly conversation.” You get a little nervous. The officer asks why you are fidgeting, and you explain that you’re worried because you’re carrying a pocketknife, and that the cop might use that as a reason to arrest you.

That admission is enough for the cop to have reasonable cause to search you. Oops! He finds the knife, and he also finds the cocaine in your shirt pocket. Next thing you know, you’re under arrest, tried, and sentenced to five years in prison.

When your lawyer appeals the conviction, the appeals court essentially shakes its head. The conversation with the arresting officer was “consensual,” according to the decision. The appellate judges say you could have just walked away at any time, and there would have been no grounds to arrest you. The verdict stands.

That’s preposterous, writes Justin Peters in Slate magazine. Peters—an editor at the Columbia Journalism Review—dismisses the idea of a “consensual” meeting between a potential criminal suspect and a police officer. “But, in reality,” he writes, “a police officer who pursues a ‘consensual’ conversation is often just looking to screw you.” People are naturally intimidated by police authority, so they feel they cannot walk away from a cop. According to Peters, “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.”

What does this mean for a casual encounter with a police officer? Although the case described above is a real-life example taken from Florida, the key principles apply in North Carolina, too. Even though police casually stop civilians all the time, Peters tells us “most people who are stopped by the cops aren’t doing anything illegal.” He cites statistics from New York City, where a stop-and-frisk program found no illegal evidence in 605,328 out of 685,724 police stops—a failure rate of nearly 90 percent.

Peters suggests that, based on this evidence, police have poor instincts for telling which citizens may be criminals. Here at Speaks Law Firm, our North Carolina criminal defense lawyers see this more as something in which citizens’ Fourth Amendment rights against unreasonable searches are being routinely ignored, and that law enforcement officers are getting away too easily with claims that they had a “reasonable suspicion” to pat down someone in public.

If you have been arrested or charged with a crime, don’t throw away your rights. Don’t consent to a search, and don’t talk to anyone without an attorney present. If you need legal representation, call Speaks Law Firm at 877-593-4233. Our defense attorneys represent clients facing criminal charges throughout the Wilmington, North Carolina area, including New Hanover County, Pender County, Brunswick County, Columbus County, and Robeson County.

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R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.