Police Encounters, Searches and Questions

Three Levels of Citizen-Police Encounters

Recognized in Utah law, there are three levels of constitutionally permissible encounters between law enforcement officers and the public:

• (1) an officer may approach a citizen at any [time] and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime . . . ; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed [by that person].

Salt Lake City v. Ray, 2000 UT App 55, ¶10, 998 P.2d 274.

A. CONSENSUAL ENCOUNTERS – LEVEL ONE.

A "level one" citizen encounter with a law enforcement official is a consensual encounter wherein a citizen voluntarily responds to non-coercive questioning by an officer. In other words, anybody can walk up to anybody and strike up a voluntary conversation. And because the encounter is "consensual", and the person is free to leave at any point, there is no seizure within the meaning of the Fourth Amendment. State v. Hansen, 2002 UT 125, ¶34, 63 P.3d 650 Of course, citizens often feel they are NOT free to leave, and frankly, many officers are happy with the citizens feeling that way. That is why you must always ask, "Officer, am I being detained?" or "Officer, am I free to leave?"

Again, a level one stop is a voluntary encounter where a citizen may respond to an officer’s inquiries but is free to leave at any time. . . . Such consensual, voluntary discussions between citizens and police officers are not seizures subject to Fourth Amendment protection." State v. Bean, 869 P.2d 984 (Utah Ct. App. 1994).

"[A] seizure within the meaning of the [F]ourth [A]mendment does not occur when a police officer merely approaches an individual on the street and questions him, if the person is willing to listen. However, the person approached is not required to answer the officer’s questions . . . ." State v. Trujillo, 739 P.2d 85, 87-88 (Utah Ct. App. 1987).

B. INVESTIGATIVE DETENTIONS, BRIEF OR LIMITED SEIZURES – LEVEL TWO.

In contrast to a consensual level-one encounter, "a level two stop, or a seizure within the meaning of the Fourth Amendment, occurs when the officer by means of physical force or show of authority has in some way restrained the liberty of a person." Bean, 869 P.2d at 986 (quotations and citation omitted); see also Ray, 2000 UT App 55 at ¶11; Trujillo, 739 P.2d at 87.

Therefore, "a seizure occurs only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." State v. Struhs, 940 P.2d 1225, 1227 (Utah Ct. App. 1997)

"[A] level one encounter becomes a level two stop and a seizure under the [F]ourth [A]mendment occurs when a reasonable person, in view of all the circumstances, would believe he . . . is not free to leave." Bean, 869 P.2d at 986 ("When a reasonable person, based on the totality of the circumstances, remains, not in the spirit of cooperation with the officer’s investigation, but because he believes he is not free to leave a seizure occurs." Jackson, 805 P.2d at 767; Trujillo, 739 P.2d at 87.

The distinction, therefore, between a level one encounter and a level two stop depends on whether, through an official show of physical force or authority, a reasonable person would believe that his freedom of movement is restrained. See Struhs, 940 P.2d at 1227.

Even when a person does not attempt to leave, a seizure may be found where there was:

• (1)the threatening presence of several officers;
• (2)the display of a weapon by an officer;
• (3)physical touching of the defendant by an officer; or
• (4)the use of language or tone of voice that indicated that compliance with the officer’s request might be compelled.

See Hansen, 2002 UT 125 at ¶41; Ray, 2000 UT App 55 at ¶11; Bean, 869 P.2d at 986; Jackson, 805 P.2d at 767; Trujillo, 739 P.2d at 87.

C. ARRESTS – LEVEL THREE.

When an officer believes a suspect is committing a crime or about to commit a crime, he may place that individual under arrest. The Legislature defined arrest in Section 77-7-1 of the Utah Code: An arrest is an actual restraint of the person arrested or submission to custody. The person shall not be subjected to any more restraint than is necessary for his arrest and detention."

The legislature has codified when an arrest may occur. Section 77-7-2 of the Utah Code states:

A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person:

• (1)
• (a) for any public offense committed or attempted in the presence of any peace officer; and
• (b) as used in this Subsection (1), "presence" includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses;
• (2) when the peace officer has reasonable cause to believe a felony or a class A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it;
• (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may:
• (a) flee or conceal himself to avoid arrest;
• (b) destroy or conceal evidence of the commission of the offense; or
• (c) injure another person or damage property belonging to another person; or
• (4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301.5.

Utah Code Ann. § 77-7-2 (Supp. 2009).

Twenty-eight states have statutes that provide police officers with discretion to arrest a suspect for misdemeanor traffic offenses. Many of these state statutes are similar to Utah Code section 77-7-2 in that the statutes permit warrantless arrests where the misdemeanor was committed in the officer’s presence. See Utah Code Ann. § 77-7-2.

Turning to other jurisdictions, some twenty-two states have statutes that limit an officer’s ability to arrest. These statutes require the issuance of a citation in lieu of arrest in some circumstances. See, e.g., Ala. Code. § 32-1-4(a) (LexisNexis 2005) (stating that whenever a person is arrested for a motor vehicle misdemeanor, arresting officer shall release upon written bond to appear, unless officer has good cause to believe person (1) has committed any felony, (2) is "causing or contributing" to an injury or death, or (3) is driving under the influence of drugs or alcohol); Alaska Stat. § 12.25.180(b) (2006) (providing that when person is stopped for infraction or violation, peace officer shall issue citation to person unless person fails to provide satisfactory evidence of identity or refuses to accept citation or give written promise to appear); Ky. Rev. Stat. Ann. § 431.015(2) (LexisNexis 2005) (instructing that officer must issue citation rather than arrest for misdemeanor, except in certain circumstances, such as failure to drive in careful manner or driving under the influence).

Understanding Utah law has proven tremendously important when analyzing the strength of the State’s case. Since officers in Utah may arrest for misdemeanor offenses, whether an officer did not arrest you may not show you that the officer believed he did not have a strong case against you, but certainly an arrest requires that later when we investigate the case, the officer had better be able to demonstrate a strong factual basis for his arresting you.