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Media > Newsletters > Law Enforcement Bulletin > December 2012 > State v. Garcia — Eighth District Court of Appeals (Cuyahoga County), Nov. 1, 2012

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State v. Garcia — Eighth District Court of Appeals (Cuyahoga County), Nov. 1, 2012

Question: When a peace officer in his patrol car tells a citizen to stop and talk to him, is this a consensual encounter?
Quick Answer: No, it’s an investigatory stop for which an officer needs reasonable suspicion.
Facts: Around midnight, suspect San Pedro Garcia was on a bicycle talking to a friend, who was in a car stopped in the middle of the street. Police officers saw the two men, turned their patrol car around, and approached them. Garcia began to ride away from his friend’s car as he saw police approach. One officer ordered Garcia to stop and asked him what was going on. As they were talking, Garcia kept reaching for the waistband of his pants. The officer exited the car and told Garcia he was going to pat him down for weapons. As the officer conducted the pat-down, he asked Garcia if he had any weapons. Garcia admitted he had a gun. The officer found a loaded handgun with an extra magazine concealed in Garcia’s waistband. Garcia was charged with carrying a concealed weapon, and he filed a motion to suppress the gun based on a warrantless search.
Why this case is important: The court found that the police-citizen interaction was not a consensual encounter. A consensual encounter occurs when the police approach a person, engage in conversation, and the person remains free to walk away or not answer. Here, there was no consent because the circumstances conveyed a “show of authority” that restricted the suspect’s movement: Two officers in a marked police car turned around and ordered Garcia to stop. Instead, it was an investigatory stop that wasn’t justified because the officers were relying on mere hunches of drug activity and couldn’t point to specific, articulable facts (such as furtive movements, criminal activity, or flight from police) that would warrant the pat-down. All the police knew was that Garcia was riding a bike and talking to his friend in a stopped car on the street.
Keep in mind: When out on your beat, you may intend to have a consensual encounter with a citizen, but remember these examples that may cause your consensual encounter to become a seizure: (1) the presence of several officers, (2) the display of a weapon by an officer, (3) physically touching the person, and (4) the use of language or tone of voice that indicates that the citizen is compelled to obey. And when you are making an investigatory stop, you must be able to point to specific, articulable facts of why you are making the stop; you can’t base it on hunches or “gut feelings.”
Visit the Eighth District Court of Appeals website to read the entire opinion.