Specific Issues

Contacts on Buses

Contacts on Buses:  

The United States Supreme Court has repeatedly ruled that law enforcement officers checking buses for immigration or drug interdiction purposes are not detaining the passengers when the officers do no more than "ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage so long as the officers do not convey a message that compliance with their requests is required."  The fact that the contact took place in the cramped confines of a bus is but one factor to consider in determining whether the encounter was in fact a detention.  (Florida v. Bostick (1991) 501 U.S. 429 [115 L.Ed.2^nd 389]; United States v. Drayton (2002) 536 U.S. 194 [153 L.Ed.2^nd 242].)

However, the Ninth Circuit Court of Appeal held to the contrary in a similar circumstance, without attempting to differentiate the facts from Bostic (the case being decided before Drayton), finding that the officers should have informed passengers that they were not obligated to speak with the officers.  (United States v. Stephens (9^th Cir. 2000) 206 F.3^rd 914.)

The Supreme Court in Drayton, supra, however, has specifically held that it is not required that officers inform citizens of their right to refuse when the officer is seeking permission to conduct a warrantless consent search.  (United States v. Drayton, supra.)

Note:  It is questionable whether Stephens is good law in light of Bostic and Drayton.

Flight

Flight:

Rule:  The long-standing rule has always been that "flight alone," without other suspicions circumstances, is not sufficient to justify a detention.  (People v. Souza (1994) 9 Cal.4^th 224.)

I.e.; If a person may walk away from a consensual encounter, he or she may also leave at a full run.  The courts, state and federal, have consistently held that this act, by itself, is not suspicious enough to warrant a detention.

Exceptions: 

However, the U.S. Supreme Court recently lowered the bar a little by holding that flight from a "high narcotics area" is sufficient in itself to justify a temporary detention (and pat down for weapons).  (Illinois v. Wardlow (2000) 528 U.S. 119 [145 L.Ed.2^nd 570].)

Flight of two people is more suspicious than one.  Added to this the fact that there appeared to be drug paraphernalia on a table where the two persons had been sitting and that defendant was carrying something in his hand as he fled, the officer had sufficient reasonable suspicion to detain him.  (People v. Britton (2001) 91 Cal.App.4^th 1112, 1118-1119.)

Trying to catch a person who runs from a consensual encounter is not illegal until he is caught.  A person is not actually detained (thus no Fourth Amendment violation) until he is either physically restrained or submits to an officer's authority to detain him.  (California v. Hodari D. (1991) 499 U.S. 621 [113 L.Ed.2^nd 690]; "Threatening an unlawful detention," by chasing a person with whom a consensual encounter had been attempted, is not a constitutional violation in itself.)

Note:  Actions taken by the subject being chased, such as dropping contraband prior to being caught, will likely justify the detention once the subject is in fact caught.

Photographing Subjects

Photographing Subjects:

A person who exposes his facial features, and/or body in general, to the public, in a public place, has no reasonable expectation of privacy in his appearance.  (People v. Benedict (1969) 2 Cal.App.3^rd 400.)  It is not, therefore, a constitutional violation to photograph him, so long as he is not detained for that purpose. 

See also People v. Maury (2003) 30 Cal.4^th 342, 384-385:  "(T)he police surveillance and photographing of defendant entering and exiting the drop-off point is not a subject of Fourth Amendment protection since defendant knowingly exposed his whereabouts in public."

But, see People v. Rodriguez (1993) 21 Cal.App.4^th 232, 239; stopping and detaining gang members for the purpose of photographing them is illegal without reasonable suspicion of criminal activity.  Merely being a member of a gang, by itself, is not cause to detain.  (See "Detentions," below.)

See also "Videotaping or Photographing," under "Law Enforcement Technology," below.

Knock and Talks

Knock and Talks:  Where the officer does not have probable cause prior to the contact (thus, he is not able to obtain a search warrant), there is no constitutional impediment to conducting what is known as a "knock and talk;" i.e., making contact with the occupants of a residence for the purpose of asking for a consent to enter and/or to question the occupants.  (United States v. Cormier (9^th Cir. 2000) 220 F.3^rd 1103.)

State authority similarly upholds the practice.  (People v. Colt (2004) 118, Cal.App.4^th 1404, 1410-1411.)

Contacting a person at the front door of their residence, done in a non-coercive manner, is not a detention.  (United States v. Crapser (9^th Cir. 2007) 472 F.3^rd 1141, 1145-1147.)

See also People v. Michael (1955) 45 Cal.2^nd 751, at page 754, where the California Supreme Court noted that: "It is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.  Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority." 

The key to conducting a lawful "knock and talk," when there is no articulable suspicion that can be used to justify an "investigative detention," is whether "a reasonable person would feel free ‘to disregard the police and go about his business.'"  [Citation]  If so, no articulable suspicion is required to merely knock on the defendant's door and inquire of him who he is and/or to ask for consent to search.  (People v. Jenkins (2004) 119 Cal.App.4^th 368.)

But see United States v. Jerez (7^th Cir. 1997) 108 F.3^rd 684, where a similar situation was held to constitute an "investigative detention," thus requiring an "articulable reasonable suspicion" to be lawful, because the officers knocked on the motel room door in the middle of the night continually for a full three minutes, while commanding the occupants to open the door. 

An otherwise lawful "knock and talk," where officers continued to press the defendant for permission to enter his apartment after his denial of any illegal activity, converted the contact into an unlawfully "extended" detention, causing the Court to conclude that a later consent-to-search was the product of the illegal detention, and thus invalid.  (United States v. Washington (9^th Cir. 2004) 387 F.3^rd 1060.)

The information motivating an officer to conduct a knock and talk may be from an anonymous tipster.  There is no requirement that officers corroborate anonymous information before conducting a knock and talk.  (People v. Rivera (2007) 41 Cal.4^th 304.)

See "Knock and Talk," below, under "Searches of Residences and Other Buildings."