The No B.S. Guide to Police Encounters in Florida - Know Your Rights
There are three primary levels of encounters with law enforcement from which the legality of a police search or seizure is judged: consensual encounters, investigative or "Terry" stops, and formal arrests. Your Constitutional rights regarding a criminal case will depend on the type of encounter.
Overview Of The Three Phases of Police EncountersThere are three levels of encounters that law enforcement may have with citizens: (1) consensual encounters, during which the citizen remains free to leave at will, where a citizen may either voluntarily comply with the police officer's request or simply choose to ignore it; (2) an investigatory stop based on reasonable suspicion; and (3) an arrest supported by probably cause that a crime has been or is being committed. U.S. Const. Amend. 4; F.S.A. Const. Art. 1 Sec. 12; McMaster v. State, 780 So.2d 1026 (Fla 5th DCA 2001).
Often times, citizens give consent to police officers to search or seize them out of pure intimidation of police presence, when in fact, they have the right to simply end the encounter. Other times, citizens may believe that they know their rights but actually end up committing the crime of Resisting an Officer Without Violence through their ignorance of their understanding of what the police can and cannot do under certain situations.
There are no perfect rules to distinguish the three phases of a police encounter, and it should be noted that all police encounters are fluid, meaning one can start as a consensual encounter, progress into detention, and then end in a formal arrest. However, case law has laid out the general rules regarding what constitutes each level of police encounter and what a citizens' rights are at that stage.
This guide was designed to shed some light on the issue.
Note: This guide does NOT relate to a traffic stop. During a traffic stop, all occupants of the vehicle are technically seized, yet there are a number of nuances regarding the driver and passengers rights depending on the circumstances of the stop. Please see my guide "The No B.S. Guide to Traffic Stops - Know Your Rights" to learn more about your rights during a traffic stop.
Consensual EncountersThe first phase of police encounters is referred to as a "consensual encounter". The consensual encounter involves only minimal police contact and no seizure. Although there is no litmus test for distinguishing a consensual encounter from a seizure, a significant identifying characteristic of a police encounter is that the officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries, and the person cannot be detained without reasonable objective grounds for doing so. In Florida v. Bostick, the United States Supreme Court stated that when an officer *has in some way restrained the liberty of a citizen . . . we conclude that a seizure has occurred. Florida v. Bostick, 501 U.S. 429 at 434 (1991).
The United States Supreme Court has held that, in determining whether an episode began as a consensual encounter, courts must examine the totality of the circumstances and, most importantly, whether a reasonable person would believe that he or she was free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). While it has been held by the Fifth District Court of Appeals that the police may freely question an individual and ask to see his identification, and may even request to search his person without implicating Fourth Amendment rights, officers may not convey a message that compliance with their requests is required. Jeralds v. State, 664 So. 2d 56 (Fla. 5th DCA 1995).
In other words, the "test" for whether a "reasonable person would feel free to end the encounter" determines whether or not the situation is a consensual encounter. As you can see, this is very fact dependent.
Always ASK the officers if you are free to leave. "Am I free to leave?" Is the best way of knowing whether you are in a consensual encounter or are being temporarily detained or arrested.
EXAMPLE OF A CONSENSUAL ENCOUNTER:
James is walking down the street in a high crime neighborhood. He is 6 foot 1, 200lbs, Hispanic, with brown hair wearing a red hoodie with a sports logo on the back. He has 3 grams of marijuana in his pocket. It is 2:00pm on a Tuesday in early January. A police officer is driving by on routine patrol. The police officer has never met James and has had no calls in the area regarding anyone that matches James's description. He pulls up next to James and asks him what he is doing. James says he is walking home. The police officer asks him where he is walking home and if he can see his ID. James politely tells the officer that he is walking home from a friend's house, and that unless there is a reason the Officer wishes to stop him for, he would like to walk home in peace and not answer any more questions or ID himself. The Officer knows James's rights, and cannot formulate any reasonable suspicion of James having committed a crime. He tells James to be safe, rolls up his window, and drives off.
Investigatory Stops and Detention AKA "Terry Stops" or "Terry Frisks" - Florida's Stop and Frisk LawFlorida Statute 901.151, the Stop and Frisk Law, has codified, in Florida, the case law found from the United States Supreme Court starting with the landmark US Supreme Court case Terry v. Ohio.
The Stop of Frisk law allows law enforcement officers to temporarily detain or stop any person in public if they reasonably believe that the person appears to have, will be about to, or is committing a crime. This reasonable belief is often referred to as "Reasonable suspicion" which is a suspicion based on articulable facts and is not an inchoate and unparticularized suspicion or a hunch. The detention is considered reasonable if the law enforcement officer is using the detention to determine the identity of the detained citizen or is furthering his or her investigation into the crime that they believe is/was committed. In other words, to be a reasonable stop, a law enforcement officer must have a reasonable belief, based on articulable facts, that a crime is being, has been, or is about to be committed by a particular individual (the one being stopped and/or frisked).
The detention itself should be only as long as reasonably necessary to investigate the potential crime. There is no exact time limit, but if the officer prolongs the stop beyond what would be reasonable to investigate the circumstances, then it is unreasonable.
An individual may be handcuffed and searched, or patted down for weapons, during a detention. Just because someone is handcuffed does not mean they are arrested, but may be merely detained.
The Officer must make the decision to either release the individual or arrest the "seized" individual. In order to move from a Stop and/or Frisk (Detention) into a formal arrest, the Officer must have formulated what is known as Probable Cause during his or her investigation.
Remember: Always ask "Am I free to leave?"
EXAMPLE OF AN INVESTIGATORY STOP:
James is walking out of a house and down the street in a high crime neighborhood. The neighborhood is known for drug dealing and drug use. James is 6 foot 1, 200lbs, Hispanic, with brown hair wearing a red hoodie with a sports logo on the back. He has a crack pipe and .2 grams of cocaine in his pocket. It is 1:00am on a Monday in July. A police officer assigned to the area knows the house James came out of is a "crack house." He finds it odd that James is wearing a hoodie in July in Florida. He pulls up and parks next to James. He asks James what he was doing coming from that house. James said he was seeing a friend. The officer observes James to be showing signs of being under the influence. The officer again asks James what he was doing at a known crack house. James said he didn't come from the house. The officer knows James is lying. He has reasonable suspicion to believe a crime just, is, or is about to occur. He tells James he is going to pat him down for weapons (per Florida Statute 901.151). The Officer has reasonable suspicion to frisk James. He feels and removes the crack pipe and cocaine from the pocket. The officer now has probable cause to arrest James for possession of cocaine and possession of drug paraphernalia.
Formal ArrestA formal arrest requires probable cause. Probable cause is defined as sufficient reason based upon known facts to believe a crime has been committed. Sufficient is the key word. What is sufficient is decided by a Judge at multiple stages (either during the issuing of a warrant if an arrest or search warrant was issued, or during the accused's initial appearance or at a Motion to Suppress).
Technically speaking, probable cause must exist before a search, seizure, or arrest. The Stop and Frisk law allows officers to temporarily seize a person to investigate a possible crime or to ensure they do not have weapons on them that can be a danger to the officers. Often times police officers seize a person or their property, search a person or their property, or conduct a formal arrest of a person without probable cause.
All warrantless arrests, like all warrants, require probable cause. It is very important to hold the government to its standard when its officers are making an arrest impeding on a citizen's Constitutional Rights.
EXAMPLE OF PROBABLE CAUSE TO ARREST:
James is standing in front of a convenient store in a high crime neighborhood. The convenient store is known to law enforcement as a place that drugs are bought and sold. James is 6 foot 1, 200lbs, Hispanic, with brown hair wearing a red hoodie with a sports logo on the back. He has an ounce of cocaine in his pocket and an illegal firearm in his waist band. It is 4:00pm on a Monday in May. A citizen calls 911 to report that a man matching James's description is selling cocaine in front of his convenient store. He describes James and the hoodie he is wearing. He says he saw a firearm when James moved his jacket to the side and saw him make multiple drug sales. James is known by the local police as an individual who has been arrested and prosecuted many times for selling narcotics. Two police officers are driving down the street when dispatch relays the 911 call to them. They pull up to the convenient store with their lights and sirens activated, exit their vehicles with weapons drawn, and order James on the ground. When they touch his waist band, they feel the firearm. They immediately handcuff and arrest James.
Contact an Attorney Well Versed in Defending Your Constitutional RightsIf you or a loved one has been involved in any sort of police encounter that resulted in the lose of liberty or freedom, it is very important that you speak with experienced and appropriate criminal defense attorneys to choose the best one for representation. A criminal defense attorney is almost always a huge asset for those accused of crimes as they can navigate the process, negotiate, advocate, and litigate on your behalf. See my No B.S. Guide on Hiring a Criminal Defense Attorney for some insight on the things you should look for before hiring a criminal defense attorney. I highly recommend meeting with at least two to three attorneys and seeing if they are a right fit for your particular case.
Contact UsLadan Law, P.A. specializes in criminal and DUI defense. The law firm is comprised of former State prosecutors with over 20 combined years of experience. It enjoys a reputation for aggressive representation with a tactful approach and handles cases in State and Federal court. We understand that each case, each individual, and each situation is different. Give us a call if you need help with a legal problem. We will sit down in our offices, discuss the unique aspects of your case, and come up with the best solution for you. All consultations are free. Call us now 407-657-1555 and mention you read this guide.