When you interact with a law enforcement officer, there are three primary levels of encounters from which the legality of a police search or seizure is judged: consensual encounters, investigative stops or detentions, and actual arrests. If you have been arrested, detained, stopped, or investigated, you may have legal defenses
available to the contest the charge by filing a Motion to Suppress or a Motion to Dismiss depending upon the specific facts of your case.
What is a Consensual Encounter pursuant to Florida Law:
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). Officers do not violate the Fourth Amendment by merely approaching an individual to ask if the person is willing to answer questions, provided that person is willing to listen. If, however, the officer phrases his or her inquiries as commands, this action would indicate that the individual was not free to leave, and that the encounter would lose its consensual character. See Florida v Royer, 460 U.S. 491 (1983)
Encounters are usually consensual where the officer does not display a weapon, touch the defendant without consent, use language that might indicate compliance was compelled, intimidate the defendant, or restrict the defendant's freedom to walk away. Officers may during consensual encounters ask for names and addresses, inquire about the defendant's business, or request a consent to search. See State v Mitchell, 638 So.2d 1015 (Fla 2nd DCA 1994). Thus, a defendant's refusal to listen to questions or to answer them does not, without more, furnish grounds for detention. In other words, in the absence of any indicia of coercion or intimidation, an officer's questioning about criminal conduct or activity alone will not convert an otherwise consensual encounter into an unlawful seizure or detention. See State v Poole, 730 So.2d 340 (Fla 3rd DCA 1999)
What is an Investigative or Investigatory Stop: Florida Law:
The second major type of encounter with police is the investigative stop. This is where police detain you temporarily in order to investigate the possibility that you committed a crime or are in the process of committing a crime.
The law is well established that a police officer may, in appropriate circumstances stop a person for the purpose of investigating possible criminal behavior, as long as the officer has reasonable suspicion that the person is engaged in criminal activity. The officer's reasonable suspicion must be supported by articulable facts. Terry v. Ohio, 392 U.S. 1 (1968). A police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Fla. Stat. 901.151. In order not to violate a citizen's 4th amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Poppel v State, 626 So.2d 185 (Fla 1993).
What is an Arrest pursuant to Florida Law
An arrest may occur where a police officer grasps or applies physical force to an individual, or, in the absence of physical force, when the officer asserts his authority, for the purpose of making an arrest, and the individual to be arrested submits to the officer's show of authority. California v. Hodari, 499 U.S. 621, 626 (U.S. 1991). Where an arrest takes place, an officer must have probable cause to believe that the defendant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (U.S. 1964).
Probable cause exists where “the facts and circumstances within the officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Carroll v.United States, 267 U.S. 132 (1925).
All cases are not the same. Facts and circumstances are different for each case and it is important to have an experienced criminal defense attorney representing you. For more information about your specific case, call David J. Sobel P.A. 24/7 at 954-383-3000.