Los Angeles Police Department Legal Bulletin (PDF) July 21, 1993

wETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB8.htm] LEGAL BULLETIN Los Angeles Police Department Legal Affairs Division Volume 17, Issue 2 July 21, 1993 DETAINING WITNESSES TO A HOMICIDE OR OTHER SERIOUS CRIME Recent homicide statistics make it clear that we are living in an...

wETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB8.htm] LEGAL BULLETIN Los Angeles Police Department Legal Affairs Division Volume 17, Issue 2 July 21, 1993 DETAINING WITNESSES TO A HOMICIDE OR OTHER SERIOUS CRIME Recent homicide statistics make it clear that we are living in an increasingly violent society. Suspects resort to the use of deadly force with little or no provocation, and often with little concern about the presence of eyewitnesses. Frequently, as in the case of drive-by shootings, a homicide will occur in which many potential witness are at, or near, the crime scene. Although it may be convenient and effective to have all potential witnesses transported to the police station for systematic interview, officers may not do so unless each witness voluntarily agrees to accompany the officers. The fact that an individual may have observed a crime or possess information that is useful to the police is NOT an adequate justification for detention. In short, there is no enforceable duty to be a witness. Officers can, and should, use their communicative skills to appeal to a citizen’s moral obligation to provide information. Police may always seek the cooperation of citizens in the identification of criminals and the solution of crimes. Initial crime scene responders should be aware that it is often difficult to determine whether a person is a suspect or merely a witness. An "at scene" interview should be accomplished to clarify the individual’s status. Those reasonably suspected of criminal involvement may be detained for investigation while witnesses may not. When citizens are detained their resultant custodial status must be able to withstand Fourth Amendment scrutiny. The minimum requirement that must be satisfied to sustain a legal detention is the existence of "reasonable suspicion." That standard means that officers must have a specific articulable basis for believing detainees are themselves involved in criminal activity. In U.S. v. Mendenhall 446 U.S. 544. the United States Supreme Court discussed the difference between a seizure of the person, i.e. detention, and an encounter which infringes no constitutionally protected rights: There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Police officers enjoy the liberty possessed by every citizen to address questions to other persons, although ordinarily the person addressed has an equal right to ignore his interrogator and walk away. Other Supreme Court cases provide similar descriptions of what has come to be referred to as a "consensual encounter." 7 V76/07 V16 PAT :gal bulletin http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB8.. What is the dividing line between an unlawful detention and a permissible consensual encounter. In Mendenhall, the Supreme Court held that a seizure of the individual occurs when a reasonable person, in view of all the surrounding circumstances, would have believed they were NOT free to walk away. Clearly, persons have been seized when transported to the police station without their consent and 'monitored' by uniformed officers who inform them They may not leave until interviewed at some future time by a detective. It is important to note that when a witness has agreed to voluntarily accompany officers to the station for interviewing the witness cannot be denied permission to leave should he or she decide to do so. A denial of permission to leave creates grounds for civil suits. INVESTIGATIVE IMPACT In light of the above, a series of guidelines have been developed for stationhouse interviews of witnesses. Of course, these guidelines do not apply to persons reasonably suspected of being perpetrators of crimes. 1. Request witnesses to voluntarily accompany offices to the station where their statements may be obtained under conditions more favorable to the citizen as well as to the police. 2. Attempt to minimize any delays between transportation of the witness and initiation of the interview. Citizens who begin the process with a spirit of cooperation can change their minds if made to wait an unreasonably long time to relate their information. 3. If officers do transport a voluntary witness to the station it is strongly suggested they offer return transportation at the conclusion of the interview. 4. In those cases where a witness refuses to be transported to the station for interview, officers should use their persuasive abilities to identify the witness and obtain as much information as possible at the scene. It is imperative that officers make every effort to establish rapport with the witnesses to ensure cooperation in the future. Questions, comments, or additional information on this topic should be directed to the Legal Training Unit, Legal Affairs Division at extension 5-2621. f2 3/26/02 3:36 PM