Consider the case of Jonathon Dryer, arrested in Georgia in 2010 for possession of marijuana after a police officer pulled him over as he drove out of a country club parking lot.
But during this conversation, the officer smelled the odor of burnt marijuana and noticed that Dryer appeared nervous. Consequently, the officer asked Dryer for consent to search his vehicle. And when Dryer refused, the officer requested that a K-9 unit be dispatched to the scene.
While awaiting the arrival of the K-9 unit, Dryer admitted to the officer that he had smoked some marijuana and that he still had some marijuana in his vehicle. Approximately 20 minutes later, the K-9 unit arrived, and during a free-air search, the dog alerted to the presence of illegal drugs. Thereafter, the officers searched Dryer’s vehicle and found eight plastic bags containing small amounts of marijuana, nine empty bags containing only marijuana residue, and 22 bags containing marijuana seeds and stems.
By the officer’s own testimony, Dryer hadn’t broken any traffic laws, and the only reason he pulled Dryer over is because the officer thought it was suspicious that he had been in the lot after the club was closed. That wasn’t enough to constitute reasonable suspicion, and so Dryer’s lawyer tried to have the evidence thrown out.
You see, when the police want to ask you a few questions, one of the key legal issues is whether or not they are detaining you at the time. If they are, then they are supposed to have reasonable suspicion that you’ve done something wrong. It’s not a high standard, but it’s not nothing. If it turns out they didn’t meet the standard, your statements and any resulting evidence could get thrown out of court.
The prosecution, however, apparently argued that reasonable suspicion wasn’t necessary in this situation. You see, this is a free country, and people are always free to engage in conversations. There’s nothing to stop you or me or someone else, such as a Douglassville, Georgia police officer, from walking up to Jonathon Dryer and having a nice conversation about almost any subject, such as the weather, or the local sports teams, or whether Dryer has illegal drugs hidden in his car. It’s just an ordinary conversation. No reasonable suspicion required for just an ordinary conversation.
As the Supreme Court explained in United States v. Drayton, which established that passengers on a stopped bus are not being detained just because three police officers have boarded the bus and started interrogating them,
Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen… Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage–provided they do not induce cooperation by coercive means…. If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.
So the prosecutors were essentially arguing reasonable suspicion was not required because Dryer was not actually being detained by the officer. He could have left at any time.
The court saw right through that:
…the State contends that the police officer’s initial interaction with Dryer was a consensual first-tier encounter, which required no reasonable, articulable suspicion of criminal activity. We disagree. When the officer first observed Dryer’s vehicle it was parked, but a few moments later, as Dryer pulled out of the parking space and began driving toward the parking lot exit, the officer activated his patrol vehicle’s blue lights. Not surprisingly, Dryer immediately stopped. And indeed, while testifying during the motion-to-suppress hearing, the officer characterized his own actions as initiating “a stop” when Dryer’s vehicle attempted to drive past him. Thus, not only did the officer create the impression that Dryer could not leave, he clearly was not going to allow Dryer to do so. Given these circumstances, the officer’s initial interaction with Dryer was not a first-tier encounter but, rather, immediately began as a second-tier encounter requiring reasonable, articulable suspicion of criminal activity.
…after the officer first observed Dryer’s vehicle parked in the lot, he decided to approach and investigate. Dryer then attempted to leave but immediately stopped when the officer activated his patrol vehicle’s blue lights. Given these facts, any argument that Dryer would have, nevertheless, felt free to ignore the police officer and continue driving away strains credulity.
Now here’s the part of this that blows my mind: I’ve been quoting from a reversal published this month by the Court of Appeals of Georgia.
Which means that in some lower trial court there was a judge — a fully-grown adult who I assume is mentally competent to do things like feeding himself without injury and using toilet facilities without soiling his clothes — who actually ruled at the suppression hearing that when a patrol officer flips on all those blue lights on the roof, a reasonable person would assume that he was completely free to just ignore the officer and drive away.
I don’t really know how precedent works, but I have to wonder…do you think any defense attorneys tried to use the original ruling to get “eluding” charges thrown out? “But in Dryer the court held that stopping was voluntary…”
(Hat tip: The Newspaper)
Update: Scott Greenfield weighs in. And then has this illuminating exchange with a commenter nameed REvers:
From what I can tell, it’s a pervasive problem nearly everywhere.
We call them “voluntary contacts” around these parts. And the judges just eat it up.
With lights flashing? Seriously?
Well, the purpose of the lights is to warn other people away, you know. It’s a safety issue.
Oh my God. I never thought of that. If you’re changing a flat tire on the road or something, cops will sometimes pull up behind you and flip on the light bar to warn traffic away. It’s actually a really nice thing. Of course, if the cop then wanders over, there’s no reason for him not to start a friendly conversation about the weather, or a local sports team, or whether you have drugs in your spare tire well… It then becomes a courtroom argument about whether he pulled you over, or whether you stopped and he just turned on the lights to protect you and him during your friendly conversation…