Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in California. Some agencies teach that a 1991 case lets you routinely order people to take their hands out of their pockets and still call it a consensual encounter. Anthony does not read the case that way, and explains the test he teaches instead.
Hello my friends, it’s attorney Anthony Bandiero here with another roadside chat. This one comes from an officer in California, and he brings up a topic about ordering people to show their hands during a consensual encounter. And the question is, can you do that?
What did the Frank V. case actually involve?
There’s this case out there called Frank V. It’s involving a juvenile. The case was decided in 1991 and the citation is 233 Cal.App.3d.
Basically what happened there is police had a call of reckless motorcycle driving in a high crime area. They saw Frank V. as a passenger on a motorcycle that was suspected of being involved in reckless driving. It was also parked at the curb of a known gang house. It then left. They stopped the person, and Frank V., a juvenile, had his hands in his pocket. They either ordered him to take them out or they asked him to. The court leans on the side of the cop ordering him to do it.
And when he did that, he kept trying to put his hands back in his pocket. He was then patted down, a firearm was found, and now we have our case.
The court found under those circumstances that the request, or the ordering, did not necessarily convert that into a detention. And I almost like, even if it did, it probably would have been reasonable anyway under the totality of the circumstances.
Can you use that case to order hands out of pockets as a routine?
Sometimes cops are using that case as training, to basically say, hey, as a matter of routine for consensual encounters you can order people to show their hands.
I can tell you that that’s not the takeaway that I get from that case.
Number one, I think the court is using sloppy language about calling this a consensual encounter. That doesn’t convert it to a consensual encounter.
What is the real test for a consensual encounter?
At the end of the day, the modern interpretation of consensual encounters would be, would a person believe they can ignore you without legal repercussions? That’s the way I look at this, and that’s the way I teach it.
If a cop told me to take my hands out of my pocket, would I believe I can just ignore that without legal repercussions? I think the answer is absolutely not. If I don’t listen to this cop who just gave me an order, which I’m going to presume is lawful, then I can be charged with obstruction and so forth. I’m not going to play games like that. Not with my freedom, and getting cited and so forth. And I think most people wouldn’t.
Have other courts followed that reasoning?
The other issue is that most courts that have addressed that Frank V. type of logic after the fact have almost directly dismissed it, and said that’s not realistic. It’s not reasonable to think that these people aren’t going to think they’re detained.
There was one case called People v. Hutcherson. It’s another California case. The citation is from 2007, Westlaw 2482134. I don’t have a public reporter citation, I just have the Westlaw.
And they pretty much outright dismiss this whole Frank V. logic, that it’s somehow still a consensual encounter by telling people to keep their hands out of their pocket.
How should you read a case like this?
Let’s not read case law in the wrong way. Let’s look at the bigger picture here.
Number one, the Frank case is from 1991. Things were a lot different back in 1991 than 2021 and beyond.
And the other thing is, we look at the fact of what a reasonable person would believe, whether they can ignore you without legal repercussions. That’s just the way I train. That’s the way I look at it. I think you get to the right answer when you look at it that way.
And the answer is no. Most courts today are going to view that as a show of authority, and if the person submits, they have been detained under the Fourth Amendment.
All right, so that’s my advice there. I hope it helps.
The short version
- Frank V. (1991) upheld the order, but on a stop of a reckless-driving suspect in a high crime area outside a known gang house.
- “I think the court is using sloppy language about calling this a consensual encounter.”
- The test Anthony teaches: “would a person believe they can ignore you without legal repercussions?”
- Applied honestly: “If a cop told me to take my hands out of my pocket, would I believe I can just ignore that? I think the answer is absolutely not.”
- Later California case law “pretty much outright dismiss this whole Frank V. logic.”
- “Things were a lot different back in 1991.”
- “Most courts today are going to view that as a show of authority, and if the person submits, they have been detained under the Fourth Amendment.”
Related from Blue to Gold
- Can Police Demand ID During a Consensual Encounter?
- What Is the Companion Rule for Pat Downs?
- Reasonable Suspicion vs. Probable Cause
This article is an edited transcript of Roadside Chat Ep. #183. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
