You are standing on a sidewalk outside your apartment complex while smoking a cigarette, a police officer approaches and asks what you are doing, and if you know anything about a crime that occurred earlier that day. Do you have to speak with the police? Can you leave?
The police don’t have to arrest you to speak with you. And if you aren’t in custody, or subject to custodial interrogation, the police don’t have to read you your rights (Miranda warnings). Many clients ask if the police can “just start asking questions” and tell me “they never read me my rights.” In the case of consensual encounters, the police can just ask you questions, without reading you your rights.
What is a consensual encounter?
A consensual encounter is when an officer approaches a citizen in a public place, questions the citizen, and the citizen is willing to listen and voluntarily answers. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).
A citizen may, at will, terminate a consensual encounter. State vs. Woodard, 341 S.W.3d at 411.
Back to our example, if you are on a sidewalk, you are in a public place, and the police can just walk up and start talking to you. But, and this important, you don’t have to answer. You can leave, and you should, because the police only talk to suspects and witnesses, if you aren’t a witness, then you are a suspect, and if you aren’t a witness you could turn into a defendant pretty quick if you have any warrants or anything illegal on your person. A lot of possession cases begin with consensual encounters.
If you are free to leave then the police don’t have to read you your rights, since you are not in custody. This encounter is considered “consensual”. So even though you might feel obligated or pressured to talk to the police, they are carrying firearms after all, and they might bully or intimidate you with their presence/tone/demeanor, the appellate courts in Texas will deem any answer you give to be consensual.
Am I free to leave?
Of all the things you can say to the police in public, this is one of the best. “I want an attorney” is another good line, and complete silence is a useful response as well. Asking if you are free to leave puts an officer on the spot. If you aren’t free to leave, then you are in custody, and you can and should refuse to speak, if you are free to leave, you should leave.