While less a problem in rural areas, the on-street encounter with police is prevalent in urban areas. Consider the following: you are out on Fry Street talking to a friend of yours on the curb in front of [insert your favorite Fry Street bar]. A police officer approaches you. He asks, “What is going on here?”
What do you do?
Where a cop approaches you on the street in a scenario like the above, you may—believe or not—treat the cop as you would any other person. Meaning: if you don’t want to talk to him, you don’t have to. If you want to walk away, go for it.
What?!?! But they’re cops, and surely that must give them some sort of Svengali power to paralyze citizens merely by their very presence, right?!?! Nope. You can treat them as any other person in an on-the-street encounter.
Yes, the Texas Court of Criminal Appeals—the highest criminal court in all of Texas—held that “for purposes of making an investigatory stop, Gurrola (the defendant) had a constitutional right to walk away and not answer any questions put to him by the police officer, without such action creating reasonable suspicion in the mind of the police officer.” Gurrola v. State, 877 S.W.2d 300 (Tex.Crim.App. 1994)(en banc)(rehearing denied). In short, he could refuse to talk to the cop, and just walk away.
Need to hear it from a higher authority? The Supreme Court of the United States has held that “although police officers may approach and question an individual, the individual may refuse to answer any questions put to him and may go on his way.” Florida v. Royer, 460 U.S. 491, 497-8 (1983). Meaning, while cops can walk up to you and ask you questions (just like any other person could), you have a constitutional right to refuse to answer their questions and walk away (just like you could with any other person.)
Why is this the case? Here comes the law…
A cop needs reasonable suspicion to detain a citizen—i.e. to stop you on the street. “Reasonable suspicion” refers to “specific articulable facts, which, in light of his experience and general knowledge, taken together with rational inferences from those facts, would lead the officer to conclude that criminal activity has been, is being, or is about to be committed.” Id. Note that reasonable suspicion is NOT “a hunch” or a “gut feeling” that something is up. The cop has to be able to articulate why he thinks something is up, and it has to be a reasonable assumption. “Detention based on a mere hunch is illegal.” Id. “Mere flight alone does not justify an investigative detention.” Id.
What does all this legalese mean? It means if a cop doesn’t have reasonable suspicion to stop you in the first place, your merely walking away does not magically sprout reasonable suspicion from out of nowhere. Therefore, you have the right to refuse to answer the cop’s questions and walk away.