IS THE MERE ENCOUNTER A MERE FICTION?
To any lawyer practicing criminal law in the Commonwealth of PA, it should not be news that courts are often asked to analyze interactions between law enforcement officers and citizens to determine whether the interaction resulted in an unjustifiable compromise of a citizen’s liberty.
The PA Supreme Court has determined that there are three categories of interactions: the “mere encounter,” the “investigative detention,” and, the “custodial detention.” For each of these interactions, “law enforcement officers [must] demonstrate ascending levels of suspicion to justify their interactions with citizens to the extent those interactions compromise individual liberty.”[i]
For this post, we will focus on the mere encounter, sometimes referred to as a consensual encounter. As described by the PA Supreme Court, the mere encounter “does not require the officer to have any suspicion that the citizen is or has been engaged in criminal activity. This interaction also does not compel the citizen to stop or respond to the officer.”[ii]
Let’s repeat that part: “This interaction also does not compel the citizen to stop or respond to the officer.”
A mere encounter does not constitute a seizure because “the citizen is free to choose whether to engage with the officer and comply with any requests made or, conversely, to ignore the officer and continue on his or her way.”[iii]
The question of whether a citizen was “free to choose whether to engage with the officer” and “free to leave” leads to great debate (and litigation). For those unfamiliar with “debat[ing] the niceties as to whether an individual is legally free to leave” during an interaction with police, the standard to be applied in determining whether a person was “free to leave” is the omnipresent “reasonable person” standard.[iv]
In other words, would a “reasonable person” feel free to simply walk away from the interaction that was initiated by police?
Determining what the reasonable person feels is not an easy task. As noted in the recent Jones decision, “there remains substantial room for reasonable disagreement concerning how such a hypothetical [reasonable] person might feel in any given set of circumstances.”
In Jones, an officer had observed Jones walking on the sidewalk with an L-shaped bulge in his right jacket pocket, which the officer immediately recognized as a firearm. At the time of the initial contact, i.e., when the officer exited the marked police cruiser and addressed Jones, the officer “did no more than ask Jones his age.” The trial court found the officer’s testimony credible and that this single question did not transform the mere encounter into an investigatory detention.
When Jones replied that he was 18, the officer realized he was too young to lawfully possess a firearm. So, based on Jones’ response, along with the officer’s observations and belief that Jones was carrying a concealed firearm in his jacket, Jones was stopped, and searched, and a gun recovered from his person. In other words, the “mere encounter” had morphed into an “investigative detention” that quickly ended in a “custodial detention” for Jones.
On appeal, the Superior Court concluded that absent further evidence suggesting coercion by the officer that may have conveyed to Jones a demand for compliance or threat of tangible consequences from refusing to answer, they were “constrained to agree with the suppression court’s conclusion” that this initial interaction constituted a mere encounter.
Would you have felt free to leave when approached by the officer?
Perhaps the Honorable Eugene B. Strassburger expressed it best when he wrote,
[C]ase law has developed into an Alice in Wonderland scenario, as judges attempt to determine if an individual is or is not free to leave.
When a police officer initiates an encounter, an individual as a practical matter never feels free to leave. The police officer has a weapon. The police officer’s testimony is almost always believed in court. No reasonable person would walk away from an encounter with a police officer.[v]
Judge Musmanno aptly summarized this sentiment when he wrote, “It is time to dispel the notion of a ‘mere encounter.’ The concept is a legal fiction, entirely divorced from reality.”
Could Jones portend a change to the “legal fiction” upon which encounters between police and citizens are judged in the Commonwealth? Time will tell. But, the reasonable person would bet that defense counsel will not feel free to just walk away from this issue.
[i] Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019).
[ii] Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa. 2019).
[iv] See, Commonwealth v. Jones, No. 776 WDA 2020 (Pa. Super. Nov. 29, 2021) (Opinion by Hon. John L. Musmanno, Senior Judge).
[v] Commonwealth v. Lyles, 54 A.3d 76, 84 (Pa. Super. 2012) (Strassburger, J., concurring).