What Is A Consensual Encounter with Police Officers in Florida?

By: James Davis

There are guidelines about when they can stop you and what they do afterwards.  If your rights are violated, then subsequent criminal charges stemming from the interaction may be dismissed.

Interacting with the Police

It is easiest to think of your run-ins with the police in three ways: (1) an arrest; (2) an investigatory stop; (3) a consensual encounter.  The first two of these are more well known.  An arrest is when an officer physical restrains you or uses their authority to make it clear that you are not free to leave because you will be detained.  An officer must have probable cause that you committed a criminal offense to arrest you.

Investigatory stops are the subject of much legal wrangling.  Essentially, these are situations where an officer stops you in order to investigate whether or not you committed a crime.  To stop you in this manner, the law requires officers to have “reasonable suspicion” that is well-founded that you may have committed a crime.  As you might imagine, if you are subject to an investigatory stop and subsequently charged with a crime, your criminal defense attorney will look very closely to determine if the authorities actually had reasonable suspicion before stopping you.

But what exactly are consensual encounters?

The “Consensual Encounter”

Consensual encounters are the least understood of police interactions. They involve minimal police contact, though that doesn’t mean officers might not make requests during a consensual encounter. In many cases officers initiate the casual encounter in order to obtain probable cause or reasonable suspicion of a crime. The main distinguishing factor is that in a consensual encounter with police officers a reasonable person must believe that they had the right to leave at any time and the right to refuse any questions posed by the officers. Unlike arrests or investigatory stops, authorities do not necessarily need probable cause or reasonable suspicion that crime is afoot to initiate a casual encounter.

While this sounds straightforward in theory, in reality it is sometimes difficult to distinguish between a casual encounter and an investigatory stop. After all, most people might not understand that they can leave when a police officer (or several police officers) approach them and begins asking questions, sometimes in a forceful manner.

The totality of the circumstances must be taken into account when analyzing the situation afterward to understand if it truly was a casual encounter or if it was an investigatory stop. This proves critical in many criminal defense cases, because officers often do not have well-founded reasonable suspicion to stop someone.  They often attempt to get away with their actions by claiming that their interaction only began as a casual encounter.

Just because an officer claims that it was a casual encounter and not an investigatory stop does not mean that it actually was. Conducting an investigatory stop without reasonable suspicion of criminal activity is illegal.  Under the law, evidence obtained from an illegal stop (like drugs found in a subsequent search) may be excluded from proceedings.  In most cases, once the evidence is thrown out, the case must be dismissed.

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