PETER F. IOCONA - ATTORNEY AT LAW
ORANGE COUNTY'S "BEST" DUI LAWYERS

CALL NOW: 949-305-0343 - FREE CONSULTATION - PAYMENT PLANS

"CONSENSUAL ENCOUNTERS" OR "CONSENSUAL CONTACTS" VERSUS "DETENTIONS"


CONTACT US TODAY


ATTORNEY BIOGRAPHIES


 
CLIENT REVIEWS &
PEER-REVIEW RATINGS



FOLLOW OUR DUI BLOGS


GOOGLE BLOGGER

OC DUI Lawyer Blog


GOOGLE BUSINESS PAGES


PETER F. IOCONA
ATTORNEY AT LAW

22982 LA CADENA DR #239
LAGUNA HILLS, CA. 92653




THE SOCAL LAW NETWORK

23152 VERDUGO DR #201
LAGUNA HILLS, CA. 92653

 



SHARE AND FOLLOW US ON SOCIAL MEDIA:

  


  



ALAN CASTILLO AND PETER F.  IOCONA BOTH SELECTED AS ONE OF ORANGE COUNTY'S TOP-RATED DEFENSE ATTORNEYS

Top-Rated OC DUI Attorney


PETER F. IOCONA: RATED BY "SUPER LAWYERS" 2015-2016


Super Lawyer Rated - Peter F. Iocona


PETER F. IOCONA SELECTED AS ONE OF THE "TOP 100 TRIAL LAWYERS" BY THE NATIONAL TRIAL LAWYERS ASSOCIATION


Top 100 Trial Lawyers - Peter F. Iocona



PETER F. IOCONA SELECTED AS ONE OF THE TOP CRIMINAL DEFENSE ATTORNEYS





PETER F. IOCONA SELECTED AS ONE OF THE NATION'S TOP ONE PERCENT ATTORNEYS BY N.A.D.C. 


Peter F. Iocona - Top One Percent Rated Attorney


PETER F. IOCONA SELECTED AS A MEMBER OF THE NATIONAL ADVOCACY OF DUI DEFENSE


Nationally Ranked Superior DUI Attorney


FEATURED IN THE "TOP 100" MAGAZINE AS ONE OF THE NATION'S TOP 100 LAW FIRMS



 "MEMBER" OF THE CALIFORNIA DUI LAWYERS ASSOCIATION


DUI Defense Lawyer - California DUI Lawyers Association


"MEMBER" OF THE NATIONAL COLLEGE FOR DUI DEFENSE


DUI Lawyer - National College for DUI Defense


"MEMBER" OF THE DUI DEFENSE LAWYERS ASSOCIATION (DUIDLA)


DUI Defense Lawyer - DUIDLA Member

  
ALAN CASTILLO SELECTED AS 
ONE OF THE "TOP 100 TRIAL LAWYERS" BY THE NATIONAL TRIAL LAWYERS ASSOCIATION



Top 100 Trial Lawyers - Alan Castillo


ALAN CASTILLO SELECTED AS 
ONE OF THE NATION'S TOP ONE PERCENT ATTORNEYS BY N.A.D.C. 


Alan Castillo - Top One Percent Rated Attorney



FORMER CONTRIBUTING EDITORS TO "CALIFORNIA DRUNK DRIVING LAW "
(2003-2016)


California Drunk Driving Law - Contributing Editors (2003-2016)



LAWYER LEGION COMMUNITY INVOLVEMENT AWARD 


Lawyer Legion - Top Attorney



"LEAD COUNSEL" RATED DEFENSE ATTORNEYS


Lead Counsel Rated Orange County DUI Attorneys



 LAWYER.COM VERIFIED DEFENSE ATTORNEYS





 BETTER BUSINESS BUREAU RATED "A+"


BBB Top Rating - Top-Rated DUI Attorneys



EVERY ATTORNEY IS RATED "10/10" OR "SUPERB" BY AVVO ATTORNEY RATING SERVICE


Peter F. Iocona - Top-Rated Orange County DUI Lawyer

PETER F. IOCONA RATED "SUPERB" "10/10" BY AVVO



Peter F. Iocona - Best Orange County DUI Lawyer

PETER F. IOCONA RECEIVED "CLIENT'S CHOICE AWARD" 
FROM AVVO RATING SERVICE


Peter F. Iocona - Top Orange County DUI Attorney

 PETER F. IOCONA AWARDED 
"TOP CONTRIBUTOR" BY AVVO





ALAN CASTILLO RATED "SUPERB" BY AVVO





 
ALAN CASTILLO RECEIVED "CLIENTS' CHOICE AWARD" 
FROM AVVO RATING SERVICE





 MARLO CORDERO RATED
"SUPERB" BY AVVO


CALL NOW FOR A FREE DUI CONSULTATION:


Click to call

ON-CALL 24 HOURS A DAY 7 DAYS A WEEK

SHARE AND FOLLOW US ON SOCIAL MEDIA:


  


  


"CONSENSUAL ENCOUNTERS" OR "CONSENSUAL CONTACTS" VERSUS "DETENTIONS"

RATED BY SUPER LAWYERS, ORANGE COUNTY'S TOP-RATED DUI DEFENSE ATTORNEYS

Peter F. Iocona - Top 100 Trial LawyersPeter F. Iocona - Super Lawyers Rated Orange County DUI Lawyer  Peter F. Iocona - Top-Rated DUI Criminal Defense Attorney
 Peter F. Iocona - Top-Rated Orange County DUI Defense Attorney

WHAT IS A “DETENTION” VS. A “CONSENSUAL ENCOUNTER”?

The United States Constitution protects individuals from unreasonable searches and seizures.  A warrant is necessary to search and seize an individual.  In the absence of a warrant, there must first be probable cause, or at least reasonable suspicion, that a crime has occurred or is occurring.

A consensual encounter is a lesser burden than reasonable suspicion, because it is supposed to be just that: consensual; but the line between what is a consensual encounter, (which by definition is voluntary because the individual would be under no requirement to respond and/or remain), and a detention results in a restriction of one's freedom, which is distinguished by the objective factual circumstances.  If a “reasonable person” believes, (in light of all the surrounding circumstances), that he/she is not free to leave, then a detention has occurred and must be supported by articulable suspicion.

While not all contact by a law enforcement agent gives rise to Fourth Amendment protections, “[I]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”Terry v. Ohio (1968) 392 U.S. 1, 16.

While reasonable suspicion is a lesser standard than probable cause, officers must still offer the following:

[S]pecific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and his experience…


In re Tony C. 
(1978) 21 Cal.3d 888, 893. 

Now “It is the right of every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law.”  An investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.  “In short, viewed either singularly or collectively the circumstances known to Officer Joy did not support a reasonable suspicion that Tony and his companion were involved in any criminal activity when he observed them walking along the sidewalk.” Id. at 898.   Furthermore, a detention occurs when an officer accosts an individual on suspicion that the person may be personally involved in some criminal activity “a police officer may not use the authority of his uniform and badge to go around promiscuously bothering citizens”.  Id. at 893.

In People v. Perrusquia (2007) 150 Cal.App.4th 228, (an Orange County case), the Court explicated what constitutes reasonable suspicion before an officer can contact an individual legally parked in a public parking lot.  In Perrusquia the Anaheim Police Department was briefed regarding a series of six armed robberies at 7-Eleven stores in Anaheim.  The Anaheim Police Department was specifically patrolling 7-Elevens in Anaheim.  At about 11:26 p.m. Anaheim Police Department officers pulled into a 7-Eleven on Harbor Boulevard and La Palma, which officers testified was a high crime area prone to assault with deadly weapons and drug complaint calls.  The officer testified that the Defendant’s vehicle was parked next to the exit facing La Palma, even though other spots were closer to the store.  Before contacting the Defendant, the officer watched and observed that the Defendant was leaning against the glass, crouched low, and not moving.  The officer heard fumbling and something hit the floor of the car with a “thud.”  The officer saw the Defendant look at him through the side window, whereupon the Defendant exited the car and attempted to walk past officers who stated to “hold on a second,” detaining the Defendant.  Despite the high crime area, the fact the officer was specifically patrolling 7-Elevens due to ongoing armed robberies of 7-Elevens in that area, the officer articulated the defendant exhibited strange behavior consistent with a possible crime, the Trial Court held, and the Appellate Court affirmed, there was insufficient reasonable suspicion to detain as the officers were not able to “articulate facts from which an ordinary person would believe that a crime has been or is about to be committed.” [Emphasis added.] Id. at 232.  The matter was therefore dismissed.

In People v. Wilkins (1986) 186 Cal.App.3d 804, a marked patrol vehicle was on routine patrol at about 10:18 p.m. when it pulled into a convenience market parking lot.  The officer testified that prior to contacting Defendant he observed 2 occupants in the front seat of the parked vehicle and as he drove past them the two occupants lowered themselves in an apparent attempt to avoid contact with the officer.  That particular parking lot was known for thefts in the attached stores and narcotics activities.  The officer testified he drove past the parked vehicle and then drove through the parking lot again to “find out what they were doing in this particular area”.  Id. at 807.  The officer approached and smelled the odor of burning incense, which the officer testified was sometimes used to conceal the odor of burning contraband, and requested identification.  Citing Terry v. Ohio,supra at 19, the Court found there was a seizure under the Fourth Amendment. “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”

In People v. Bailey (1986) 176 Cal.App.3d 402 an unmarked police car pulled in behind a vehicle parked, after hours, in a parking lot of a Sears.  The officer testified that individuals would park their cars in that lot and ingest drugs.  The officer turned on his emergency lights and approached the vehicle.  The officer testified that he smelled the odor of marijuana and the Defendant handed over a bag of marijuana and a subsequent search after arrest yielded a bag of cocaine, paraphernalia, another bag of marijuana, and a loaded pistol.  The Court found Defendant’s consent was given involuntarily through the officer’s assertion of authority.  Consent must be “voluntary and not in response to any express or implied assertion of authority.  Conversely, if the consent is given because of an unlawful assertion of authority, it is not voluntary and is unlawful.”  Bailey at 405, citing Florida v. Royer (1983) 460 U.S. 491 and Wilson v. Superior Court (1983) 34 Cal.3d 777.

In People v. Garry (2007) 156 Cal.App.4th 1100, the Court found that an officer shining a spotlight on the Defendant and quickly approaching the Defendant while he was on the street was a detention.  In Garry, officers were patrolling a high-crime, high-drug area where illegal street drugs were sold and police officers assaulted.  Mr. Garry was standing next to a parked car and the officer pulled up behind the vehicle and illuminated the Defendant from about 35 feet away.  The Defendant had a look of nervousness and stated he lived in a house to the right.  The Court found that even though that the officer parked 35 feet away, had no officers with him, did not employ the emergency lights, did not draw a weapon, made no verbal commands, and went to the Defendant instead of requesting the Defendant to approach, a reasonable person would be intimidated.  

In Brown v. Texas (1979) 99 S.Ct. 2637 the United States Supreme Court held that when officers detained that defendant for the purpose of requiring him to identify himself, they performed a “seizure” of his person subject to the requirements of the Fourth Amendment.  In Brown, the officers observed the defendant and another man walking away from one another in an alley in an area that had a high incidence of drug traffic.  The officer believed that activity “looked suspicious.” The Court found that those circumstances did not rise to a reasonable suspicion that the defendant was engaged in, or had engaged in, criminal conduct and thus it was an illegal detention for questioning.  The Court held that there was a Fourth Amendment violation.  See also, Delaware v. Prouse (1979) 440 U.S. 648 (“Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is un-licensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, detaining the driver in order to check his license and registration of the automobile are unreasonable under the Fourth Amendment.”)

SOME CONCLUDING REMARKS REGARDING DETENTIONS VS. A CONSENSUAL ENCOUNTER

In People v. Jones (1991) 228 Cal.App.3d 519, the court summarized that the law related to a determination of whether or not any particular encounter between a person and officer is a detention versus a consensual contact. The Jones Court stated:

Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, and asking him if he is willing to answer some questions. (Florida v. Royer (1983) 460 U.S. 491, 497.) A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554; see also INS v. Delgado (1984) 466 U.S. 210, 215.) As the Supreme Court has noted, “The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” (Michigan v. Chesternut (1988) 486 U.S. 567, 573.)

Thus, in California v. Hodari D. (1991) 499 U.S. 621, the court held that the defendant had not been seized for the purpose of the Fourth Amendment even though police gave chase to the defendant who ran when he saw the police cruiser approaching him. The court held that the defendant was not seized until the police apprehended him, and therefore there was no submission to authority.

In Florida v. Bostick (1991) 501 U.S. 429, the United States Supreme Court reversed a Florida Supreme Court decision that found that a seizure occurred when police boarded a public bus and randomly requested consent to search luggage. Bostick argued that he wasn’t free to leave because of the confines of the bus. The court held the test is “whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter. . . . The crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’”Id., at 437.

In general, a detention is found whenever a person is ordered, rather than asked, by an officer to stay put, though in individual cases other factors may weigh more heavily. For example, in the above-quoted Jones opinion, the holding was that a detention had occurred where the officer parked his police vehicle blocking a traffic lane, and jumped out and yelled, “Stop. Would you please stop?” Though the officer’s statement to the defendant was partially phrased as a request to stop, the officer’s show of authority in how he parked his car and jumped out was seen by the court as more important, taken as a whole.

On the other hand, sometimes a direct order to stop is seen as a mere request to do so. In People v. King (1977) 72 Cal.App.3d 346, the court found that a detention had not occurred where the officer approached the walking defendant, whom he already knew, and called out: “Danny, stop, I want to talk to you.” In People v. Harris (1986) 184 Cal.App.3d 1319, the contact with the police officer was consensual though the officer said, “Mister, can you please wake up?” and asked appellant to get out of his car, “to make sure that he was okay and just check on his wellbeing,” appellant was actually free to leave. He had the right to simply ignore the nice “request.” Besides, reasoned the court, defendant’s inability to leave was due to his getting out of the car and falling down drunk.

In People v. Perez (1989) 211 Cal.App.3d 1492, the court found no detention where a police vehicle only stopped, facing the front of the defendant’s vehicle and turned on the high beams and both spotlights, aimed at the defendant’s car. The defendant’s exit was not blocked. He could have driven off, the court said. “[T]he conduct of the police officer here did not manifest police authority to the degree leading a reasonable person to conclude he was not free to leave.” However,People v. Garry (2007) 156 Cal.App.4th 1100 found that a detention occurred when the officer “bathed” the defendant in light after observing him for 5-8 seconds before getting out of his car while armed and in uniform and briskly walking 35 feet in 2 and 1/2 seconds while questioning the defendant about his legal status. The court found that the officer’s actions “constituted a show of authority so intimidating as to communicate to any reasonable person that he . . . was not free to decline [the officers] request or otherwise terminate the encounter” Id., at 1111.

In In re Frank V. (1991) 233 Cal.App.3d 1232, the officer made a U-turn upon seeing the defendant pull away from the curb on a motorcycle. The motorcycle immediately pulled over to the curb and stopped. The officer stopped behind and got out to confront the motorcyclist. No detention, said the court—just a consensual encounter. In People v. Bouser (1994) 26 Cal.App.4th 1280, the officer said: “Hey, how you doing? You mind if we talk?” to a drug dealer in an alley. The defendant then waited around voluntarily without instructions for maybe five minutes during a warrant check, without being told to do anything. This wasn’t a detention, said the Court in that opinion.

So again, a consensual encounter is a lesser burden than reasonable suspicion, because it is supposed to be consensual.  The line between a “consensual encounter”, (which is voluntary in nature because the individual is under no compulsion to respond or remain), and a “detention” that results in a restriction of freedom, is distinguished by the objective factual circumstances.  If a “reasonable person” believes, in light of all the surrounding circumstances, that he/she is not free to leave, then a detention has occurred and must be supported by articulable suspicion.














Website Builder