Late last year in the Florida Panhandle city of Escambia, a man was sentenced to five years in prison for third-degree felony cocaine possession as a habitual offender.
Our Fort Lauderdale criminal defense lawyers know on the surface, this case is fairly common and not likely to garner much attention – but for the fact of how his arrest was initiated.
It started with something called a “consensual encounter.” These are situations when police are allowed to approach you, without probable cause, and engage you in a voluntary conversation about anything. The problem is most people don’t realize the difference between a “consensual encounter” and a stop made with reasonable suspicion. But the fact is, there is a major difference in terms of your rights.
The Florida Supreme Court has classified police encounters in three distinct categories: consensual, investigatory and arrest. With a consensual encounter, it can be initiated by either party for any reason and can be terminated by any party for any reason without any consequence. However, you are not free to go if the encounter is investigatory or you are under arrest. But here’s the key: investigatory encounters and arrests can’t be initiated by police officers absent a well-founded and articulable suspicion of criminal activity. Countless criminal cases have been tossed because the officer did not have that reasonable suspicion prior to conducting a search or interrogation.
But if an officer argues it was simply a consensual encounter, as opposed to an investigatory encounter, he or she doesn’t have to prove any reasonable suspicion. And that’s what happened in this case in northern Florida.
The officer stopped the defendant, who was riding his bicycle along the roadside. The officer conceded he had no reason to stop the man, other than that he hadn’t met him before and wanted to make his acquaintance. When the man stopped, he appeared nervous and started to fidget. He had a pocket knife on him. The officer then conducted a search, where he found the cocaine in the man’s shirt pocket. He was subsequently arrested, convicted and sentenced to five years in prison.
Upon appeal, the defendant’s lawyers argued that conviction should be tossed, as the stop wasn’t valid in the first place. However, the appellate court upheld the conviction on the basis that the encounter the officer initiated was a consensual one.
The problem is that even if a police officer is extremely polite, many people don’t feel they have any choice but to stop and speak with him or her. Officers have guns. They have handcuffs. They have cruisers that you can’t open from the inside and they can call back-up at any moment. It can be incredibly intimidated and lead people to believe they don’t have a choice but to talk. And an officer will probably not tell you outright that the encounter is “consensual.”
So how can you avoid getting caught up in such an encounter and potentially incriminating yourself?
The key is to be as clear and explicit as possible. You have to be assertive with regard to your rights. If a police officer stops you for a conversation, you need to politely but firmly make it clear that you have no interest in talking – about anything. In many cases where the encounter is consensual, the officer will simply move on. If, however, he or she proceeds to detain you, the case will eventually end up in court and your defense attorney will have strong grounds on which to challenge the arrest. If the officer had no reason to stop you and you have made it clear that you don’t wish to speak to him, the evidence obtained during that stop legally can’t be used against you.
If you’ve been arrested, call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. The Ansara Law Firm serves Broward, Dade and Palm Beach counties.
How About a Friendly Frisking?: The Myth of the “Consensual” Police Encounter, Nov. 30, 2012, By Justin Peters, Slate.com More Blog Entries:
Broward DUI Watch: Florida Breathalyzer Machines Challenged Again, Jan. 3, 2013, Fort Lauderdale Criminal Defense Lawyer Blog