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  • John Kulevich

Am I Free to Leave?

“Am I free to leave?” “Am I being detained?” According to countless videos and articles posted online, these questions are popular ones to ask a police officer after you are stopped by the police. Why ask these questions and what is the significance of the answers? You may think that ending the police encounter itself is the purpose of asking these questions. That may be true in part, but for individuals charged with crimes (particularly possession of weapons, drugs, or other contraband) as a result of a police encounter, the answers to these questions can change the dynamics and outcome of their entire case.

There are a few legal principles that govern police encounters with civilians. First, the Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. (Notice that it prohibits only unreasonable searches and seizures.) The determination of whether or not a seizure by the police is reasonable hinges on the words or actions of the police and the attendant circumstances. “Not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions that requires justification.” Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). “Thus, police officers may approach individuals on the street to ask them about their business without implicating the balance between State power and individual freedom.” Commonwealth v. Narcisse, 457 Mass. 1, 5 (2010). In other words, a police officer can approach you on the street and engage you in questioning or conversation without any legal justification. These interactions are called “field interrogation observations” or “FIOs.” “[T]hey are constitutionally insignificant, and a police officer may initiate such an encounter without any information indicating that the individual has been or is presently engaged in criminal activity.” Id. at 6. These encounters are deemed to be entirely voluntary and you are free to walk away or refuse to interact with the police.

So, where does the “am I free to leave” question come from? The U.S. Supreme Court ruled that police have seized a person in the constitutional sense “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, 446 U.S. 544, 554 (1980) (emphasis added). However, Massachusetts courts have recently recognized that “in most situations, a reasonable person would not believe that he or she was free to leave during a police encounter." Commonwealth v. Matta, 483 Mass. 357, 363 (2019). Therefore, “using the “free to leave” standard does not produce the information necessary to determine whether a seizure has occurred.” Id. So, in Massachusetts, “the question is whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay.” Id. at 362.

How do you know if an officer might use his or her police power to coerce you to stay? Look at the words and actions of the officer. Is he or she asking you to do something or giving you a command? How many officers are interacting with you? Is it just one officer or are multiple officers there? Has the officer drawn his weapon? Has the officer physically cornered you? Asking these questions helps to answer whether there has been a sufficient “show of authority” that a person could reasonably believe that he or she would be compelled to stay and interact with the police.

If there is a sufficient show of authority that you could reasonably believe you would be compelled to stay and interact with the police, then you are “seized.” To engage in more than just a voluntary interaction with a civilian (in other words, if the police want to “seize” a person), the police need to have “reasonable suspicion” considering the totality of the circumstances that “the person was committing, had committed, or was about to commit a crime.” Commonwealth v. Martin, 467 Mass. 291, 303 (2014). What if the police seize you but do not have “reasonable suspicion?” Then any statements you make, contraband you might be possessing, or any other evidence found after the moment the seizure begins will be inadmissible in any criminal case against you. Commonwealth v. Franklin, 456 Mass. 818, 820 (2010) (“Evidence obtained as the result of an unlawful seizure is inadmissible.”).

The question “am I being detained” is a close corollary of the “am I free to leave” question. Mostly, the analysis is the same. If you are being detained then you are “seized” according to the Fourth Amendment of the U.S. Constitution. Again, police generally must have “reasonable suspicion” of a crime to detain someone. It is also important to understand that neither your own subjective beliefs, nor the subjective beliefs of the police officers dictate the outcome of Fourth Amendment issues. These are legal questions that only a judge can rule on.

There is a vast body of law covering Fourth Amendment issues and police encounters. All of the modern cases in Massachusetts have built on the principles in the famous U.S. Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968). Every police encounter is different and each requires an individual assessment but the legal principles are the same. If you were stopped by the police and it resulted in criminal charges, I'd be happy to discuss your case with you. Call or email me to schedule a free consultation!

Boston Police Officer engaging with civilians
Boston Police Officer

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