Page 57 - Texas police Association Peace Officer Guide 2017

Law enforcement officers are permitted to approach individuals without probable cause or
reasonable suspicion to ask questions or even to request a search. These types of encounters do
not require any justification on the officer’s part. Despite any inconvenience or embarrassment
caused by these encounters, there is no official coercion. Even if the officer did not tell the
citizen that his request could be ignored, “the fact that the citizen complied with the request does
not negate the consensual nature of the encounter.”

Only when the implication arises that an officer’s authority cannot be ignored, avoided, or ended,
does a Fourth Amendment seizure occur. A person is “seized” when an officer, “by means of
physical force or show of authority, has in some way restrained the liberty of a citizen.” “The
purpose of the Fourth Amendment is not to eliminate all contact between the police and the
citizenry, but to ‘prevent arbitrary and oppressive interference by enforcement officials with the
privacy and personal security of individuals.’”

What constitutes a restraint on one’s 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.” “The officer’s conduct is the primary focus, but time, place, and
attendant circumstances matter as well. ‘A court must step into the shoes of the defendant and
determine from a common, objective perspective whether the defendant would have felt free to
leave.’”
Instances where a person’s interaction with police amounts to a seizure—rather than a
consensual encounter—include the threatening presence of several officers, the officer’s display
of a weapon, physical touching of the citizen by the officer, the officer’s words or tone of voice
indicating that compliance with the officer’s request might be compelled, or flashing lights or
blocking a suspect’s vehicle. Absent this type of evidence, otherwise inoffensive conduct
between a citizen and a police officer cannot, as a matter of law, amount to a seizure of that
person.
An investigative detention is a Fourth Amendment seizure of limited scope and duration that
must be supported by a reasonable suspicion of criminal activity. An investigative detention is
the result of a person surrendering to the police officer’s show of authority coupled with a
reasonable belief that he is not free to leave. “The test to determine whether a person has been
detained is objective and does not rely on the subjective belief of the detainee or the police.” A
police officer has reasonable 27 suspicion to detain a person when that police officer has
“specific, articulable facts that, when combined with rational inferences from those facts, would
lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in
criminal activity.” A warrantless detention of a person is permitted under the Fourth
Amendment if the detention is justified by reasonable suspicion. Thus, Fourth Amendment
scrutiny is necessary when a seizure takes the form of an investigative detention. In such
circumstance, the detaining officer must have reasonable suspicion that the citizen is, has been,
or is about to be engaged in criminal activity.
We recognize that, as a general rule, a “traffic stop entails a seizure.” In fact, we would agree
that, under most circumstances, an officer’s “stopping” of a car constitutes a seizure. However,
in this case, we cannot ignore “the setting in which the conduct occurs” or the “attendant
circumstances.” This was not an investigative stop. This was not a typical traffic stop. In fact,
this was not a traffic stop at all. And, although Appellant’s car was moving at the time Deputy

A Peace Officer’s Guide to Texas Law 52 2017 Edition