E-Newsletter Edition: September 5, 2007

Response Provided By:
Brian S. Batterton – Legal & Liability Risk Management Institute

Always note that state law may be more restrictive on police power than the U.S. Constitution.

In response to the weekly article about consensual encounters I have a question. I work for a dui task force and usually every weekend get calls from concerned motorists calling in possible drunk drivers. We are able to get to most of them before they reach their destination and find pc for a stop. Every one in a while by the time I get close to the vehicle in pulls into an apartment complex or other public area. Would it be legal to walk up to a vehicle after it came to a stop in an apartment complex to “check the welfare” of the driver after it has been called in as a drunk driver. Is there any case law on this matter?



The short answer is that it is permissible to walk up to a vehicle after it has stopped on its own in a parking lot and conduct a consensual encounter with the driver. The key question will be whether the words or conduct used by the police officer would lead a reasonably objective person to believe they were not free to leave, refuse the officer, or otherwise terminate the encounteri  If a reasonable person would feel free to leave or terminate the encounter, then you have a valid consensual encounter. If, during a valid consensual encounter an officer develops valid reasonable suspicion, then he can briefly detain the suspect for a reasonable amount of time in order to conduct the investigative detention. ii

The Court of Appeals of Indiana, [this inserted with respect to question being posted from officer in Indiana]Second District, decided a case that almost exactly addresses this legal question. In Indiana v. Lefevers, an officer received information from dispatch of an anonymous tip regarding a possibly intoxicated driver. iii  The officer saw a vehicle matching the given license plate and make/model description, and he began to follow it. The officer did not observe any erratic driving. The driver, Lefevers, pulled into a convenience store parking lot. The officer parked nearby but did not activate his emergency lights. He then approached Lefevers as she prepared to exit her vehicle, but while she was still sitting in the driver’s seat, and began questioning her as to whether she had had anything to drink and whether she had made any erratic movements that might have led someone else to think she was intoxicated. Lefevers said she had had one glass of champagne to celebrate a business deal but that she had not been driving erratically. At some point, while Lefevers was still in the car, the officer noticed that her eyes were bloodshot and her speech was slurred. He asked Lefevers if she would submit to a breath test and she said she would. The test revealed a blood alcohol content of .13.  iv

The Court of Appeals first noted that “an anonymous telephone tip, absent any independent indicia of reliability or any officer-observed confirmation of the caller’s prediction of the defendant’s future behavior, is not enough to permit police to detain a citizen and subject him or her to a Terry stop (investigative detention)…” v  However, in this case, the state does not allege that the officer conducted an investigative detention, but rather a consensual encounter. In support of their position, the state cited Overstreet v. State which held “there was no “stop” or “seizure” of a defendant where the defendant pulled into a gas station and was fueling his vehicle, and an officer pulled his vehicle behind the defendant without activating the lights, approached him, asked for identification, and questioned him about some suspicious activity the officer had observed.”  vi

In applying Overstreet to the facts in Lefevers, the court concluded that the officer had properly conducted a consensual encounter which led to reasonable suspicion to detain and later probable cause to arrest. In concluding that encounter was consensual, the court noted that there was only one officer (not the threatening presence of multiple officers), no gun was drawn, the officer did not use his lights or police authority to compel Lefevers to stop, the officer spoke in a non-threatening manner, and the encounter occurred in a public place.

  1. Florida v. Bostick, 501 U.S. 429 (1991)
  2. Terry v. Ohio, 392 U.S. 1 (1968)
  3. Indiana v. Lefevers, 844 N.E.2d 508 (Ind. Ct. App. 2006)
  4. Lefevers, 844 N.E. 2d at 511
  5. Id. at 511 (citing Washington v. State, 740 N.E.2d 1241, 1246 (Ind. Ct. App. 2000))
  6. Id. at 513 (citing Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000))

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