4. The Investigative Stop (Stop and Frisk).
a. The mere citizen contact--what is it? The law allows for three levels of police-citizen contact.
The most intrusive is an actual apprehension, where the subject is taken into custody. At the opposite
extreme is what we call "mere citizen contact." This is not a "seizure" and the Fourth Amendment is not
triggered. The courts have recognized that "not all contacts between the police and the citizenry
involve a seizure. Only when the officer, by means of physical force or (a) show of authority, has in
some way restrained the liberty of a citizen may we conclude that a seizure has occurred." U.S. v.
Foster, 11 MJ 530 (ACMR, 1981). There is no restraint of the citizen's liberty in the case of a "mere
citizen contact;" instead, voluntary cooperation is being sought.
In the case of "mere citizen contact," a police officer may approach an individual and ask him
questions. Such police conduct does not constitute an intrusion giving rise to the safeguards of the
Fourth Amendment. A person so stopped is free to decline the invitation and walk away. If the
accused has been "detained by a show of authority," a seizure will have occurred. In such a case, it is
no longer merely a "citizen contact," but has escalated to an actual seizure. U.S. v. Foster, 11 MJ 530
(ACMR, 1981). "Not every encounter between a police officer and an individual constitutes a 'seizure'
involving protection secured by the Fourth Amendment...A seizure, within the meaning of the Fourth
Amendment, occurs only if in view of all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave." Relevant factors include the threatening
presence of several police officers, the display of a weapon, physical touching of the accused, or the
use of language or tone of voice which indicates that compliance with the officer's request might be
compelled. Where a suspect was asked if he would accompany the investigators back to their office for
questioning, the court concluded that: "it is clear that not every instance where a person agrees to a
police request to accompany them for questioning is a "seizure" within the meaning of the Fourth
Amendment." Where the decision to accompany the police officers is voluntary and the accused is free
to terminate the questioning and proceed on his or her way at any time, then it cannot be said that a
"seizure" has occurred. In short, the individual was free to accept or decline the invitation and could
have terminated the questioning and departed at will. US. v. Spencer, 11 MJ 539 (AMCR, 1981).
It has also been held that a soldier was not "seized" when he was told that his commander, a
lieutenant, wanted to see him. A soldier "is simply not free to ignore the lawful commands of his
superiors." Viewed in "the context of the military and its daily operations, such action is not considered
to be "seizure." U.S. v. Sanford, 12 MJ 170 (CMA, 1981). The same is true for telling a soldier to
report to military investigators for questioning. U.S. v. Scott, 13 MJ 874 (NMCMR, 1982). It would be
different if the soldier had been brought in under guard, not being free to leave. Under such facts, the
courts may find an apprehension to have occurred. U.S. v. Schneider, 14 MJ 189 (CMA, 1982). That
is different, of course, from one who has simply been told to report for questioning. U.S. v. Price, 15 MJ
628 (NMCMR, 1982). A requirement to report to a particular place, then, does not amount to a Fourth
Amendment seizure. U.S. v. Hardison, 17 MJ 701 (NMCMR, 1983). The same is true, then, even
where the soldier is ordered to report. "Merely being ordered to report to the CID office does not
equate to a "seizure" under the Fourth Amendment." The situation changes, however, if the accused
was then subjected to a show of authority and reasonably concluded that he was not free to leave.
U.S. v. Thomas, 21 MJ 928 (ACMR, 1986).