“I do not wish to have an encounter with the police right now. Am I free to leave?”
That’s advice from Judge Janice Rogers Brown about what to say to police on patrol in Washington for illegal guns. According to The National Law Journal, Brown urged citizens to address officers “firmly, politely, respectfully,” but to exercise their right to end what are supposed to be voluntary encounters with law enforcement.
Brown was part of a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit that said members of the Metropolitan Police Department’s Gun Recovery Unit were allowed to approach people on the street to ask if they were carrying contraband and if they would consent to a search.
But Brown, writing a separate concurring opinion, expressed her unhappiness with the situation.
“Our jurisprudence perpetuates a fiction of voluntary consent where none exists,” Brown wrote.
Confronted by police officers in tactical gear who might use a refusal or other reaction as justification to conduct a search anyway, Brown said, the person being questioned in fact had little choice about whether to comply.
With the guise of voluntary consent stripped away, the reality of the District’s regime is revealed. It is a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects. If the Fourth Amendment is intended to offer meaningful protection in the context of Terry stops, the voluntary-consent exemption cannot be used to engage with members of the public en masse and at random to fabricate articulable suspicions for virtually every citizen officers encounter on patrol.
After offering her advice about what a person should say to police during such an encounter, Brown said that if an officer said the person was not free to leave, “then coercion will cease to masquerade as consent. Our courts will be forced, at last, to directly grapple with the reality of the District’s policy of routinized and involuntary seizures.”
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