{"id":5760,"date":"2011-07-09T11:05:15","date_gmt":"2011-07-09T11:05:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-07-09T11:05:15","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5760","title":{"rendered":"NC: In a truly consensual encounter, a person who can walk away cannot be arrested for disregarding an officer"},"content":{"rendered":"

Since a person has the right to walk, even run, away from a \u201cconsensual encounter,\u201d he cannot be arrested for not complying with what would have been a \u201cconsensual encounter.\u201d State v. Joe<\/a>, 2011 N.C. App. LEXIS 1396 (July 5, 2011).*<\/p>\n

Leaving a known drug house that police had targeted, then going back in, coupled with nervousness and shielding one side of his body with a sagging coat that suggested a weapon in the pocket was reasonable suspicion. This started as a consensual encounter. United States v. Johnson<\/a>, 2011 U.S. App. LEXIS 13852, 2011 FED App. 0451N (6th Cir. July 6, 2011)*:<\/p>\n

However, in this case we have much more than mere presence in an area known by the officers to be prone to drug trafficking. First, the officers were directed to a particular address based upon information from a confidential informant. Second, shortly after their arrival, the officers saw defendant approaching that address and called out to speak with him. Rather than stop, which he had no legal obligation to do, defendant entered the building for fewer than five seconds before re-emerging. Third, even though defendant agreed when asked to produce identification, he \u201cfumbled\u201d when doing so and the officers observed that he appeared to shield one side of his body. And, fourth, Officer Morton noticed that defendant\u2019s coat was sagging, which he believed might indicate a weapon. All of these factors support the district court\u2019s conclusion that the officers had a reasonable, particularized suspicion to conduct a Terry stop followed by a pat-down. In our view, the critical factor is defendant\u2019s hurried entrance into the very building that the officers planned to target followed by a remarkably quick exit. Because we must give \u201cdue weight\u201d to the officers\u2019 factual inferences in deference to their specialized training, Luqman, 522 F.3d at 616, it is hardly a stretch to conclude that they reasonably thought that defendant\u2019s five-second visit was an attempt to warn drug traffickers of the police presence. At the very least, it is enough to justify the initial Terry stop. Thereafter, the manner in which defendant positioned his body while talking to the officers, coupled by his fumbling in an inside pocket, justified the pat-down that uncovered the weapon. See United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007) (a protective frisk is justified if officer had reasonable suspicion that criminal activity is afoot).\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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