Chatty Officer May Actually be performing a Consensual Encounter

Meeting a chatty police officer could mean nothing more than they are approachable or talkative; however Utah residents are warned to use caution as a presumably friendly conversation with police could actually be consensual encounter.

Local festivities

Photo by: Johnny Silvercloud

Communities around Utah are joining together for a slew of holiday festivities tomorrow that guarantee to bring in larger crowds than normal. These large crowds necessitate cities to increase the amount of law enforcement on duty. As everyone- both young and old, rich or poor, normal citizen or officer, come together to celebrate a commonality, it is not unusual for Utah residents to strike up conversations with one another. Unfortunately, as law enforcement on duty continues to perform their job while spending time in the community, they will often use simple conversations as consensual encounters.

Consensual encounter

A consensual encounter is a tactic used by law enforcement to obtain information from a person without having reasonable suspicion to do so. If an officer wants to investigate a person but has not identified a viable reason to do so yet, they may do nothing more than visit with the person for a short while.

Consensual Encounter

Photo by: D_M_D

A consensual encounter does not violate a citizen’s Fourth Amendment rights as it is nothing more than an encounter that ends in a conversation and at no time is the person detained or otherwise unable to leave. It is considered a consensual encounter as long as the officer kept their questioning short and simple and refrained from:

• Drawing their weapon;
• Placing someone in handcuffs;
• Turning on police lights or sirens;
• Physically detaining a person;
• Blocking someone with a patrol vehicle; or
• Speaking with force or intimidation.

Terry stop vs arrest

Photo by: David Poe

If any of the above points end up taking place during a consensual encounter, it then becomes either an investigatory stop or an arrest. An investigatory stop, otherwise known as a Terry stop takes place if a person is detained briefly by law enforcement. In order to perform a Terry stop officers must have a reasonable suspicion that the person has been or is currently involved in criminal activity. This can include instances such as if illegal contraband is in plain view or if police have a hunch the person is armed and dangerous and wish to do a brief pat-down. Terry stop often consist of traffic stops and are to be no longer than 20 minutes. If the officer either has a warrant or develops probable cause during a Terry stop, then an arrest is made. An arrest is a more formal detainment such as being handcuffed and placed in the back of a patrol vehicle and this act should always be preceded by the Miranda Warning.

Questionable stops

All residents are advised to be aware about the possibility of increased consensual encounters during the festivities tomorrow. Anyone who feels they have been unjustly questioned or detained by police during a consensual encounter and are now facing criminal charges, it is encouraged to speak to a defense attorney who will ensure their Fourth Amendment rights against unreasonable searched and seizures are protected.

The Textalyzer: New Technology Gives Police Access to Private Phone History

The Textalyzer is a new tech item that gives police access to a person’s phone history after an accident, but does it also sanction law enforcement to invade someone’s privacy?

The Textalyzer

Photo by: xersti

The state of New York, along with multiple other locations across the country, is eager for their police department to begin using a new gadget known as the Textalyzer. If it makes it through the New York State Senate, Utah won’t be far behind. The term “Textalyzer” is a spin-off of the breathalyzer except instead of detecting alcohol use, it would detect whether or not a phone was being used prior to a collision. The Textalyzer is a handheld device which officers can connect directly to a person’s phone at the scene of an accident and in less than two minutes, detect if there was any phone activity in the moments leading up to impact.

Flawless technology…

The Textalyzer device is allegedly meant to only detect if there is activity on a phone but there are a few possible flaws:

• Will it truly be able to distinguish if a person was actively looking and using their phone or if there unattended phone was merely receiving calls or texts?

• What if there is activity on the phone, but it was being used hands-free which is legal?

• Does the Textalyzer know whether or not a passenger was using the phone and not the actual driver?

In order to help prevent some of these flaws, simply detecting any activity on the phone won’t be enough. To help reduce flaws with the Textalyzer, it may need more access to a person’s private cell phone history in order to protect that person from being falsely accused of cell phone use while driving.

“Private” cell phones

Textalyzer

Photo by: Lord Jim

Some reports state the Textalyzer could tell what apps were used prior to a collision and if the driver was sending content or just receiving it. This means if someone receives a message on Tinder or another private social media app or sends one themselves it could end up publicly documented in a police report. Even then, there is no way to tell who was using the phone in the car unless of course the driver was alone. To really know for sure when two or more persons were in the car, the content of messages such as a picture taken by a passenger or a reply to a text made by a passenger in behalf of the driver might have to be evaluated to tell who was actually using the phone. In order to not be falsely accused of texting or Facebooking while driving, a large amount of the driver’s private phone history would have to be disclosed and likely documented in a report.

Illegal search and seizure

The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Textalyzer would give law enforcement the right to search a person’s private property: their cell phone. It would also give police the right to illegally seize information found on the phone that belongs solely to the owner.

Convenience doesn’t take priority over Constitutional Rights

Photo by: Bill Selak

The Textalyzer may be a simple, easy-to-use device, but realistically it is nothing more than a convenient back door approach for law enforcement to get around going through the proper channels meant to protect a person’s Fourth Amendment rights. If the wool is removed and the Textalyzer is seen as the invader of privacy that it is, officers would have to return to legally obtaining a warrant to search the records of a phone. This may be a longer process than the Textalyzer, but the extra time is worth it to ensure no one’s Constitutional rights are violated.