Close Encounters of the Police Kind: People in Parked Cars
By Stephanie Luce
The Fourth Amendment of the United States Constitution protects us from unreasonable search and seizure, however, not every interaction between law enforcement and civilians implicates Fourth Amendment protections. For purposes of analysis, police-civilian interactions are divided into three categories: (1) encounters, (2) detentions and (3) arrests. Some interactions can be easily recognized as one of the three, others are murky. One particularly challenging interaction involves police approaching people in parked cars and determining whether the interaction is an encounter or a detention.
An encounter is a consensual interaction between a person and a police officer which a person may terminate at any time. An encounter is neither search nor seizure; so a police officer is as “free as anyone” to initiate an encounter with a civilian for any reason. An example of an encounter is a police officer on the street exchanging pleasantries with another person walking on the street.
A detention occurs when “the police conduct would have ‘communicated to a reasonable person that he was not at liberty to ignore the police presence and go on about his business.’” State v. Garcia-Cantu, 253, S.W.3d 236, 242 (Tex. Crim. App. 2008). A detention must be supported by reasonable suspicion; the officer must have specific, articulable facts, which taken together with rational inference from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The classic example of a detention is a traffic stop; a police officer turns on his emergency lights and stops a car to cite the driver for a violation and possibly proceed with further investigation if reasonable suspicion of other criminal activity permits.
Interactions between police officers and people sitting in parked cars happen frequently and present an encounter-or-detention conundrum. There is no bright-line rule for when an encounter becomes a detention, but the officer’s conduct is the primary focus, along with time, place and other circumstances. The Court “must step into the shoes of the defendant” to determine objectively whether the defendant would have felt free to leave.
Emergency lights usually indicate a detention, but if the car is already stopped when the police officer activates his lights, it may be considered an encounter. A spotlight alone does not necessarily convert an encounter into a detention. “Boxing in” a car to prevent its departure will constitute a detention, but if the officer merely makes it inconvenient to leave, the interaction may remain an encounter.
Reasonable suspicion is not required for a police officer to approach a parked car on foot, but how the officer interacts with the person in the car once they get there is the subject of a great deal of legal scrutiny. Years ago, the Texas Court of Criminal Appeals issued two opinions in consecutive years which guide our current case law. In the first,Ebarb v. State, the Court held, “when a person is sitting in a parked car and a police officer orders him to roll down the window or open the door, there is at that point a temporary seizure for investigative detention.” 598 S.W.2d 842, 850 (Tex. Crim. App. [Panel Op.] 1979). The next year, the Court held it was not a detention when an officer approached a parked car with his flashlight and knocked on the driver’s window and the driver opened the door. Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. 1980).
An order to roll down the window will still constitute a detention, but most anything less than an order will likely be considered a consensual encounter. An officer without reasonable suspicion may approach a car and knock on the window as an officer does not detain a person when he “directs,” rather than orders, her to roll down the window. The same is true when the officer “indicates” a person needs to roll down the window. Whether the Fourth Amendment will apply turns on how clearly the police officer represents to the civilian that he has no choice but compliance.
Stephanie Luce is an associate at Sorrels Udashen & Anton and is treasurer of the Criminal Law Section. She can be reached at firstname.lastname@example.org.