Page 32 - TPA Journal September October 2024

Appellant’s interaction with Officers Sallee and “[T]he Constitution does not guarantee freedom
Starks was a consensual encounter.7 For the rea- from discomfort.” Appellant’s initial encounter
sons below, we find that the court of appeals was with Officer Sallee and Officer Starks was con-
incorrect. Appellant’s interaction with Officers sensual. However, this is not dispositive. In con-
Sallee and Starks escalated into an investigative ducting the required totality-of-the-circumstances
detention. analysis, we must analyze the rest of the interac-
We agree with Justice Goodman that the initial tion in the context of this initial approach to deter-
encounter between Appellant and Officers Sallee mine whether the consensual encounter escalated
and Starks was consensual. Judging the interac- into an investigative detention.
tion by the totality of the circumstances and in the
shoes of an objectively reasonable person, we can- If a citizen’s initial encounter with law enforce-
not say that Appellant initially would have felt ment is consensual, but an officer’s official dis-
compelled to continue talking to the officers. play of authority or show of force indicates that
While it appears the officers followed Appellant ignoring the officer’s request or terminating the
around the apartment complex to observe him, this encounter is no longer an option, the consensual
was not impermissible. Additionally, the officers’ encounter has escalated into a seizure (or inves-
subjective intent at the time of the interaction is tigative detention) implicating the Fourth
not part of our detention analysis; it is irrelevant Amendment. In finding that Appellant’s interac-
why the officers were following Appellant. tion with law enforcement was a consensual
encounter that did not escalate into an investiga-
Further, in applying the Castleberry and tive detention, the court of appeals noted that
Mendenhall factors, we note that the officers Officers Sallee and Starks approached Appellant
approached Appellant around midday in a public in the middle of the day, did not turn on their over-
location using a tone that was not overtly hostile. head lights or siren, “did not block appellant’s
Appellant was outnumbered as he was alone, and path with their patrol car”; did not exhibit their
two officers were present, but Officer Starks lim- weapons prior to finding Appellant’s firearm; and
ited his proximity to Appellant when the officers did not indicate “to appellant that he was not free
initially made contact—at one point walking away to leave” or that he was required to comply. The
entirely. Besides a brief handshake, the officers appellate court also stated that Appellant willing-
did not initially touch Appellant or speak to him in ly listened to and voluntarily answered the offi-
a manner indicating that compliance was required. cers’ questions. Regarding the search, the court
Officer Sallee asked Appellant to provide identify- of appeals noted that “[t]o clarify that Sallee only
ing information, and Appellant complied without wanted to know if he could search appellant,
hesitation. (“[T]he fact that the citizen complied Sallee and Officer Starks asked appellant to stop
with the [officer’s] request does not negate the taking items out of his pockets” and that the “offi-
consensual nature of the encounter.”). cers were trying to help appellant understand what
Sallee meant when he asked appellant for his con-
Looking at the totality of the circumstances, we sent to search him.”
see officers who approached a citizen in a public
place and questioned him for a short period of The appellate court also correctly notes that
time regarding basic information. This interaction Officer Starks did not touch Appellant.
would arguably make an objectively reasonable While the court of appeals is correct on some of
person uncomfortable; however, this alone is not these points, its argument that the encounter did
enough under our law to evidence more than a not escalate to a detention fails because the major-
consensual encounter. ity’s analysis undertook “a piecemeal or ‘divide
and conquer’ approach” instead of viewing the
totality of the circumstances—as a reviewing

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