San Francisco DUI Lawyer - Detention vs. Consensual Contact

 Posted on May 22, 2010 in DUI

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities.

In this series of blog postings I am going to discuss search and seizure issues related to drunk driving cases. However, the totality of search and seizure law is perhaps as voluminous and complicated as drunk driving (DUI) law.

DETENTION AND ARREST | Seizure of a Person | Detention vs. Consensual Contact

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 cop is a detention versus a consensual contact. The court said:
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.)

In general, a detention is found whenever a person is ordered, rather than asked, by a cop to stay put, though in individual cases other factors may weigh more heavily.

For example, in the just-quoted Jones opinion, the holding was that a detention had occurred where the cop parked his cruiser blocking a traffic lane, and jumped out and yelled, "Stop. Would you please stop." Though the cop's statement to the defendant was partially phrased as merely a request to stop, the cop'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.

In People v. Bouser (1994) 26 Cal.App.4th 1280, the cop 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 opinion.

For more information: Ohio v. Robinette (1996) 519 U.S. 33-No need to tell of right to refuse consent to search.