I’ve spent the last week in a kiddy-rape trial, a particularly nasty one (as opposed to the kiddy-rape trials that are loads of fun).  One of the few highlights of the trial was my discovery of a Cleveland detective with the least expansive view of the 4th Amendment I’ve ever seen.  The alleged victim in the case claimed she was raped in a particular house, and two days after the incident took the police to that exact address.  The detective waited five weeks to get a warrant.  Why?  Because, according to him, he needed a named suspect to get a warrant.  He’s got several hundred colleagues who operate under the belief that they have the right to frisk anybody they talk to, and this guy doesn’t understand that searches run against the property, not the individual.

Search and seizure is the topic of the day, courtesy of an email I got recently from a lawyer friend of mine.  Back in January, Cleveland Mayor Frank “Inaction” Jackson briefly stirred from his coma, the onset of which had coincided with his election in November of 2005, to announce that the city was going to be pursuing a more aggressive policy to get guns off the street.  This involved using undercover police officers who were supposedly trained in detecting individuals who might be carrying guns, and would then approach those individuals based on that.

My friend suggested that a Daubert hearing might be in order to test the basis of the officer’s training on the detection issue.  Daubert (actually Daubert v. Merrell Dow Pharmaceuticals) was the 1993 US Supreme Court case which reframed the qualifications necessary for the admissibility of expert testimony under Evid. R. 702.  Daubert was approved by the Ohio Supreme Court in Miller v. Bike Athletic Co. in 1998, and basically sets forth these criteria for admission of expert testimony:  (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.

My friend’s idea might be a good one; it’s doubtful that the criteria used to select who might be carrying a gun could meet that test.  But here’s the problem:  it might not have to.  As I mentioned in my post at the time the new policy was implemented, the state may claim that the police are simply engaging in a ”consensual encounter,” which does not trigger the protections of the 4th Amendment.

The concept of the consensual encounter was first articulated in US v. Mendenhall in 1980.  The idea is that the police are free to walk up and talk to anyone they want, and the person they talk to is equally free to walk away without responding.  In fact, that’s the key to distinguishing between a consensual encounter and a stop:  whether the individual feels free to walk away from the police.  Resolving the issue depends upon our old friend, the totality of the circumstances, and perhaps the best list of factors to be considered is found in the 10th District’s decision in State v. Justice:

the threatening presence of several officers; the display of a weapon; physical touching of the person; the use of language or tone of voice indicating that compliance with the officer’s request might be compelled; uniformed attire of the officer; and summoning the citizen, as opposed to approaching the citizen and identifying oneself as a law enforcement officer. Absent some evidence that one or more of these circumstances is present, a law enforcement officer’s contact with a citizen cannot, as a matter of law, amount to a seizure of that person.

That last sentence should be taken with a grain of salt; the nice thing about the “totality of the circumstances” is that it doesn’t lend itself to a finite list.  Still, you’ll probably have a tough time selling a judge on the idea that something wasn’t a consensual encounter if none of the above items are present.

That the lines here are pretty fine is indicated by another 10th District case, State v. Guinn.  Mendenhall had held that there was nothing wrong with the police approaching an individual and asking for identification.  Whether the person has to provide it is another story; the year before, in Brown v. Texas, the Court had tossed out a Texas statute that made it a criminal offense to refuse to provide identification if asked.  As Guinn made clear, the way in which police asked for identification could be critical:

There is nothing consensual about this stop and/or subsequent request for identification. It is clear the Defendant wanted nothing to do with the officers. The officer didn’t ask if he could talk to the Defendant, or anyone else. He didn’t ask her if she minded giving some identification; his words were, “what are you doing . . . do you have any identification on you?”

The bottom line here is that if the police are smart, they’re going to stay well on the side of the line of a consensual encounter, and count on the fact that it’s the rare person who’s going to have the cojones to tell someone wearing a badge and a gun to bug off.  The longer the person hangs around, the likelier he’s going to say or do something which creates a “reasonable suspicion of criminal activity,” and elevates the situation to a stop.