D.Utah: Defendant’s merely respecting officer’s asking questions still made it voluntary

The officer’s request to talk to the defendant was nonthreatening and noncoercive. The fact the defendant was respecting the officer’s wanting to ask questions and not feeling like he should just walk away was enough to make it consent. United States v. House, 2010 U.S. Dist. LEXIS 110740 (D. Utah October 18, 2010):

Although defense counsel argues that Officer Daley made a “show of force” by issuing commands at the defendant, the evidence presented at the hearing does not support this conclusion. In fact, the defendant’s own testimony demonstrates that Officer Daley’s request to speak with him was presented in a non-intrusive, non-aggressive manner. For example, when defense counsel asked the defendant, “Did you feel like you were free to leave at that point and walk away?” the defendant responded, “Well, sure, but I ain’t going to walk away from an officer trying to ask me questions.” (Tr. at 52.) Similarly, when defense counsel attempted to clarify the officer’s alleged “commands” by stating: “So [the officer] asked you to get off the phone? Or he’s making some indication you need to get off the phone?” The defendant responded, “No. He says, can I ask you a few questions. I told him, hold on, because I was talking to somebody at that point.” (Tr. at 52.) There is simply no evidence that Officer Daley used a commanding or threatening manner or tone of voice. Finally, the consensual nature of the encounter is not undermined by Officer Daley’s failure to expressly tell the defendant he was free to leave. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”); …

Update: This is addressed in my CLE presentation on societal understandings and vehicle stops, next at NORML Key West.

Our societal understanding is that we do not walk off from police officers; we at least show the courtesy of talking to them, and the police exploit that. My point is that the courts must respect that understanding. Otherwise, does this mean that citizens need to exercise their right to be discourteous to avoid the confrontation? As to our societal understandings underlying Katz‘s reasonable expectation of privacy, see, e.g., Minnesota v. Olson, 495 U.S. 91, 100 (1990):

Because respondent’s expectation of privacy in the Bergstrom home was rooted in “understandings that are recognized and permitted by society,” Rakas, supra, at 144, n. 12, it was legitimate, and respondent can claim the protection of the Fourth Amendment.

What is expected of the “reasonable person” v. reasonable police officer?