June 11, 2010
Chat with cop leads Yakima man to court
By ANDREW BERGH
Special to the Journal

"Do you have a minute?”

The words sound innocent enough. But how would you respond if a police officer asked you this question? Before answering, let me tell you about James Bailey's experience.

While walking along an otherwise deserted street in Yakima, Bailey was approached by James Walker, a member of the local constabulary, who asked him if he had a minute. (Court records don't indicate the time of day when the contact occurred.) The officer repeated the question after realizing Bailey didn't clearly hear it the first time.

So did Bailey say, “Hell, no!” and start running the opposite way?

Not at all.

Instead, Bailey responded affirmatively and walked toward the officer, who proceeded to ask where he was going and “what he was up to.” (The quotes are included so you can't blame me for ending the sentence with a preposition.) After Bailey said he was en route to a friend's house, the lawman asked him for identification.

This is when Bailey, who was wearing gloves, made his second mistake. (His first mistake was giving the cop 60 seconds of his time.) Because as soon as he handed over his identification, Bailey volunteered that he probably had an outstanding warrant.

Bailey got no honesty points, as Walker promptly arrested him after verifying the existence of the warrant. Things went even more downhill when the officer, while searching Bailey incident to the arrest, found two and a half grams of methamphetamine in one of his gloves.

Bailey soon faced a felony drug charge in Yakima County Superior Court.

Prior to trial, the defendant moved to suppress evidence of the illegal drug. His constitutional rights had been violated, he claimed, because the arrest — and the ensuing search — resulted from an unlawful detention. The trial court agreed, ruling that Bailey wasn't “free to walk away” when the officer contacted him, and suppressed the meth. Since that left the state without any evidence, the drug charge was dismissed.

In its appeal, the state argued that the encounter between Bailey and Walker was a “classic social contact” in a public place by a police officer. Since no “seizure” or investigative detention had occurred, said the state, the drug evidence was wrongly suppressed.

By a 3-0 margin, a Washington appeals court recently agreed with the state.

Most people know the Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. But as the appeals court pointed out, under Article I, section 7 of the Washington Constitution, individuals in the Evergreen State enjoy even greater protections and guarantees.

For one thing, “seizure” has been defined broadly by Washington courts.

A seizure occurs, said the appeals court, when an individual's “freedom of movement” is restrained. This happens when the person wouldn't believe he is free to leave or decline a request, given a police officer's “use of force or display of authority.”

Conversely, an encounter between a citizen and the police is “consensual,” said the court, if a reasonable person under the circumstances would feel free to walk away. Under this objective standard, the “key inquiry” is whether the officer either uses force or displays authority in such a way that a reasonable person would “feel compelled to continue the contact.”

So what degree of intrusion rises to the level of a “seizure”? Though decided on a case-by-case basis, the court identified several considerations.

For example, was more than one police officer present? If so, this may create an “environment of investigation,” especially if one of the officers also asks permission to conduct a “pat-down” search for safety reasons.

Did the officer use any trickery? For example, the likelihood of a seizure is greater if the cop purposely asks “Got a minute?” in a voice too low to hear, and only then asks the person for his identification and where he is going.

More obvious factors pointing to a seizure? When the officer illuminates his spotlight, activates his emergency lights, or uses his siren to initiate the contact with the private citizen.

But in Bailey's case, none of these factors were present. As a consequence, since the initial encounter was just a social contact, the appeals court ultimately ruled there was no “seizure” before Walker lawfully arrested Bailey on the warrant.

In short, Bailey will now have to stand trial on the methamphetamine charge.

So let's return to the original question: How would you respond if a police officer asks whether you have a minute?

Hmm. I suppose your answer might depend on whether you have any outstanding warrants or possess any illegal drugs.

But even if you're a law-abiding citizen, it looks like “Hell, no!” and running the opposite way is a perfectly good option.