People v. Linn - Attitudes, Semantics, and the Fourth Amendment

At the precipice of the Fourth Amendment often lies the question of whether the police have detained someone or whether the encounter is consensual.  One part of the test is whether under the circumstances a reasonable, innocent, person would feel free to, in legalese, "terminate the encounter and leave".  In ordinary language, it means would you feel comfortable saying "Sorry officer, but I've got things to do" and walking or driving away.

Here, Linn was driving her truck when her passenger flicked cigarette ash out the passenger window.  A motorcycle policeman saw this and followed Linn's truck.  After Linn parked her truck, the policeman parked his motorcycle next to the truck and spoke to Linn.  He told Linn to put out her cigarette and put down the soda she was drinking.  Then he asked Linn for her driver's license, which she produced for him.  The policeman held on to it while he radioed in a records check on Linn.  Around two minutes into the encounter, the policeman smelled booze on Linn, leading to a DUI investigation and eventual arrest.

Linn moved to suppress the results of the DUI investigation as the fruits of an illegal search.  She won in the trial court, but the Superior Court's Appellate division reversed.  Now in the Court of Appeal, Linn wins.  The First District panel agrees with Linn that she was detained by the officer and since the officer had no reason to detain Linn (it was the passenger who flicked the ashes) the detention was illegal.  A large part of the opinion is devoted to the legal significance of a police officer asking for, receiving, and holding onto, a person's driver's license.  There are California cases that cut both ways.  Some cases state that if a policeman asks you for your I.D. and you provide it, that doesn't mean a reasonable, innocent, person wouldn't feel completely at ease telling the officer to give it back because you want to leave.  Other cases (more reasonably, in my opinion) hold that if a policeman is holding onto your I.D. you are not going to feel free to just take off.

Here the panel finds, given the entire encounter ("put that cigarette out", "put down that can of soda", "driver's license please") a reasonable, innocent, person in Linn's place would not have felt free to leave.

Now the actual answer to whether someone feels free to leave depends on the (legally irrelevant) characteristics of the "reasonable person".  If a policeman approaches you while you are parked talking on your cell phone and says, "Can I get you to put down your phone and step out of the car for me?"  Do you feel free to say, "no" and go about your way?  Grammatically it is a question isn't it (although a convoluted one, as how would I know what the cop can get me to do?)  Do you think a 19 year old male in a high-crime area would feel the same?