Consensual Encounters vs. Detentions:
A consensual encounter may be inadvertently converted into a detention by "any (or a combination of) the following: . . .
. . . the presence of several officers,
. . . an officer's display of a weapon,
. . . some physical touching of the person, or
. . . the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled. [Citations]" (In re Manual G. (1997) 16 Cal.4th 805, 821.)
The Ninth Circuit Court of Appeals has added several other factors to consider (United States v. Washington (9th Cir. 2007) 490 F.3rd 765, 771-772, citing Orhorhaghe v. INS (9th Cir. 1994) 38 F.3rd 488, 494-496.):
Whether the encounter occurred in a public or nonpublic setting.
Whether the officers informed the person of his right to terminate the encounter.
In United States v. Washington, supra, the Ninth Circuit Court of Appeal found a detention when two white police officers had contact with the Black defendant late at night, and then asked him for consent to search. The consensual encounter, however, reverted to an illegal detention due to the "authoritative" manner of conducting the search, by walking defendant back to the patrol car, having him put his hands on the patrol vehicle while facing away from the officer, during a pat down, with the second officer standing between him and his car. It was also noted that the local "Police Bureau" (in Portland, Oregon) had published a pamphlet telling African-Americans to submit to a search when "ordered" to do so by the police following several instances of white police officers shooting Black citizens during traffic stops.
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