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The Florida Citizen’s Guide to the Fourth Amendment part 2

Stop and Search: Reasonable Suspicion vs. Consensual Encounter

When someone is arrested, the arresting deputy or officer generates a report detailing the facts and circumstances surrounding the arrest. If additional members of law enforcement are involved in the case, they would generate a report as well. During the discovery process, the State Attorney’s Office provides the defendant’s lawyer with copies of these reports which allow the defendant to prepare a defense to the charges against him/her.

During my years as a Tampa criminal defense lawyer, when members of law enforcement generate their reports, they generally describe the beginning of the encounter with my client as a consensual encounter rather than a stop. They routinely write their reports in this manner to circumvent the reasonable suspicion requirement of a investigative stop. Simply put, the police will say my client voluntarily stopped and allowed them to search, when in actuality, due to the circumstances of the situation, my client felt compelled to cooperate with them and acquiesced, or gave in to their show of authority. So, what police will describe as a consensual encounter, was really a investigative stop that required some sort of suspicion of criminal activity. If there was no suspicion of criminal activity and my client simply acquiesced to the authority of police, then the investigatory stop is illegal. Since the stop was illegal, so is the subsequent search, absent clear and convincing proof that my client consented to the search.

After I ask my clients what happened during their police-citizen encounter, they will sometimes say the police ordered them to stop, or once stopped, several police surrounded them and then began asking questions. Sooner or later, the police then either ask, or just begin to conduct a search of my client’s property or person. Basically, what my clients usually describe is a investigative stop by police.

Several weeks later, when I receive discovery from the State Attorney’s Office, the police reports typically describe my client’s police-citizen completely different than what my client previously said. When my client’s account conflicts with what is described in the police report, I generally need to take the police officer’s deposition to get to the bottom of what actually happened. Often times, the police officer may think he conducted a consensual encounter, but under the law, he actually was detaining my client and needed reasonable suspicion to do so. When this happens, I file a Motion to Suppress with the court, and if the judge agrees, the evidence gets thrown out, and the charges are usually dismissed thereafter.

Generally, when determining whether an encounter was consensual or not, judges consider all of the surrounding circumstances. But, be advised, the police-citizen encounter will still be considered consensual even though the police did not tell you that you may refuse their request, or that you did not have to speak with them in the first place. State v. Livingston, 681 So.2d 762 (Fla. 2d DCA 1996).

To help better understand how judges will determine whether a police-citizen encounter was consensual or an investigative stop, the following are several appellate court decisions, with the final ruling of the court:

  • An officer pulled up next to the defendant who was stopped at a stop sign. The officer said “Hello” and asked “how are you?” The defendant responded by handing her his identification card, without the officer asking anything further. The officer asked if he had a driver’s license and the defendant responded that it was suspended. A search incident to arrest for driving on suspended license yielded cocaine and marijuana. Ruling: This was a consensual encounter and the officer developed probable cause to arrest the defendant for driving on a suspended license, therefore the search incident to arrest was lawful. State v. Raker, 883 So.2d 887 (Fla. 1st DCA 2004).
  • Police observed the defendant chasing another person down the street late at night. The officer stopped the defendant and the defendant informed the officer he was chasing someone because the other person owed him some money. At that point, the officer did not think criminal activity was afoot. Before the officer was through questioning the defendant, the defendant attempted to walk away and end the encounter. The officer forced the defendant’s hand behind his back, handcuffed him, then searched his pockets, discovering drugs. The officer testified that the defendant was under arrest for obstructing or opposing an officer without violence, a misdemeanor. Ruling: Because the officer did not think criminal activity was afoot when the defendant attempted to walk away (no reasonable suspicion), the arrest for obstructing or opposing an officer without violence was unlawful, making the subsequent search incident to arrest unlawful as well. D.G. v. State, 831 So.2d 256 (Fla. 3d DCA 2002).
  • An officer witnessing a man carrying a box from the woods to his car does not provide the founded suspicion necessary to conduct a stop, even in an area that has been suspected for marijuana cultivation. Dickey v. State, 865 So.2d (Fla. 2d DCA 2004).
  • Law enforcement was patrolling an area which, according to police, was a high drug activity area. An officer witnessed the defendant coming from a wooded area and asked him for his ID. The officer ran defendant’s ID, which came back with no warrants found. The officer then clipped defendant’s ID to his belt, and asked for consent to search his person. Defendant consented and the search revealed drugs. Ruling: The officer’s request for ID was not a stop or detention, but rather a consensual encounter. However, once the ID check revealed no warrants, the officer had no reasonable suspicion to detain defendant, so the ID should have been returned, not clipped to the officer’s belt. Since the ID was not returned, the encounter turned into an illegal detention/stop and the subsequent search (even though consent was given) was illegal and the drugs were suppressed out of court. Brye v. State, 927 So.2d 78 (Fla. 1st DCA 2006).

The above are just a few examples of how certain fact patterns are analyzed by judges with respect to the Fourth Amendment and police-citizen encounters. Notice that in every case, the defendant’s attorney filed a Motion to Suppress, to make the argument that their client was illegally detained. If you think that you were illegally detained, or if you don’t believe that you gave free and voluntary consent to allow the police to search your property or your person, contact an experienced Tampa Criminal Attorney to examine your case.

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