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ARRESTS, INVESTIGATIVE STOPS, CONSENSUAL ENCOUNTERS

In our interactions with law enforcement in Florida, there are three primary levels of encounters from which the legality of a police search or seizure is judged:

1. consensual encounters,
2. investigative stops, and
3. full scale arrests.

The constitutional protections at issue in a criminal case will often turn on the type of encounter that occurred.

CONSENSUAL ENCOUNTERS

The consensual encounter involves only minimal police contact and no seizure, whereas the investigative stop requires a well-founded suspicion that criminal activity is afoot. The formal arrest requires probable cause. Simons, 549 So. 2d at 786. Although “there is no litmus test for distinguishing a police 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.” Id. 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).

INVESTIGATORY STOP / DETENTION

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. In order to justify an investigatory stop, law enforcement officers must have a well-founded, reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968).

The Second District Court of Appeal has held that a law enforcement officer may temporarily detain a person and conduct an investigatory stop if the officer has a “founded” suspicion that the person has committed, is committing, or is about to commit a crime. Jordan v. State, 544 So. 2d 1073 (2d DCA 1989); State v. Allen, 994 So. 2d 1192, 1193 (5th DCA 2008). Founded suspicion must have a factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge. G.J.P. v. State, 469 So. 2d 826 (2d DCA 1985). Mere suspicion “is no better than random selection, sheer guesswork, or hunch; it has no objective justification.” G.J.P., 469 So. 2d at 828; Smith v. State, 592 So. 2d 1206 (2d DCA 1992). In evaluating whether there was an objective basis for reasonable suspicion, courts must consider “the totality of the circumstances” surrounding the stop. United States v. Cortez, 449 U.S. 411, 417 (1981).

Where a police officer conducts an investigatory stop on the basis of a physical description of the suspect, the description provided to the officer must be sufficiently specific and corroborated by reliable information. In United States v. Brown, 448 F.3d 239 (3d Cir 2006), the Circuit Court of Appeals reversed a federal district court’s denial of a defendant’s motion to suppress, which was filed on grounds that the arresting officer had conducted an unlawful investigatory stop of the suspect. The stop by the police officer was based on the allegations that: (1) the suspect matched a general description of black, male robbery suspects, between 15 and 20 years of age, wearing dark, hooded sweatshirts and black pants, (2) the suspect matched the description of suspects between the heights of 5’9” and 6,’ and (3) the officer had observed the alleged suspects in the reported area. Brown, 448 F. 3d at 242-44.

The Third Circuit Court of Appeals reversed, citing the fact that the suspect did not match the general age description, that the suspect had facial hair, which was not identified by the informant, that there was no information as to the reliability of the informant who told of the robberies, there was no allegation that the suspect was observed in a high-crime area, and there was no allegation that the suspect acted suspiciously or in a manner that conformed to police officer’s specialized knowledge of criminal activity. Id. at 248-253. The court concluded that “an excessively general description, combined with an honest but unreliable location tip in the absence of corroborating observations by the police, does not constitute reasonable suspicion under the ‘narrowly drawn authority’ of Terry v. Ohio, 392 U.S. at 27. Id. at 252.

In Florida v. J.L., 529 U.S. 266 (2000), the United States Supreme Court affirmed a judgment holding that a “stop and frisk” search of respondent based only on an anonymous tip was invalid under the Fourth Amendment. The suspect was searched after an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Florida v. J.L., 529 U.S. 266, 268 (U.S. 2000). Sometime after the police received the tip (for which there was no record), two police officers were instructed to respond. Id. They arrived at the bus stop approximately six minutes later and saw three black males “hanging out.” Id. One of the three black males was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, the suspect made no unusual movements, and there was no attempt to flee or otherwise evade police. Id. Based on these facts, the “stop and frisk” was held to be invalid. Id.

Consistent with Florida v. J.L. and Brown, Florida Courts have upheld investigatory stops by police only where the suspect matches specific identifying descriptions and other information corroborates the allegation that suspect has engaged in criminal activity. In State v. Allen, 994 So. 2d 1192 (5th DCA 2008), police conducted an investigatory of a suspect after receiving an anonymous tip by a confidential information who had a history of reliability. State v. Allen, 994 So. 2d 1192, 1193 (5th DCA 2008). The informant provided a specific description of the suspect as “a black male, dark skin, approximately 6’2”, weighing 200 pounds, wearing a dark-colored t-shirt, with facial hair.” Id. The suspects were located in a high-crime area and walked away “hurriedly” when approached by officers. Id. Based on the specificity of the information received by police officers, the known reliability of the informant, and suspicious activity observed upon the approach of police, the Fifth District upheld the investigatory stop. Id. at 1195.

Similarly, in State v. Davis, 849 So. 2d 398 (4th DCA 2003), police conducted an investigatory stop of two robbery suspects. An off-duty police officer had heard sirens near his residence and turned on his hand-held police radio to determine what was happening. State v. Davis, 849 So. 2d 398, 399 (4th DCA 2003). The officer learned that a robbery had occurred and heard the suspects described as “two black or hispanic males, ages 18-20, about 5’9” in height with thin builds, armed with black handguns, wearing hooded sweatshirts.” Id. Immediately thereafter, He saw a hispanic or black male walk quickly by him only a few steps away. The man briskly walked through the parking lot and climbed the fence into an adjacent apartment complex. Id. The man was wearing a hooded sweatshirt and had come from the general direction of the reported robbery. The officer then radioed police, who located the suspects in a nearby vehicle. Id. at 399-400. Police then stopped the vehicle, after observing nervous behavior and seeing that the occupants were the same height, build, and age, as the reported robbery suspects. Id. at 400. On the basis of these specific and corroborated factors, the Fourth District Court of Appeal held that sufficient “founded suspicion” existed for an investigatory stop. Id. at 401.

FULL-SCALE ARREST: FLORIDA AND FEDERAL LAW

The other level of encounter between police and a suspect is the full-scale arrest. 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).

The quantum of information necessary to constitute probable cause must be measured by the facts and circumstances of the particular case. Wong Sun v. United States, 371 U.S. 471, 481-82 (1963). 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. Brinegar, 338 U.S. 160, 175 (1949), citing Carroll v.United States, 267 U.S. 132, 162 (1925). However, a finding of probable cause may not be based on a “bare suspicion” that an individual has committed an offense. Brinegar, 338 U.S. 160, 175 (1949); Accord Wong Sun, 371 U.S. at 479. Under this standard, the subjective intentions of the arresting officer are irrelevant in determining the validity of an arrest. Whren v. United States, 517 U.S. 806, 813 (1996). The test is whether, under the facts and circumstances within the knowledge of the officers, there was reasonably trustworthy information to warrant a prudent man in believing that the petitioner had committed or was committing the offense. Beck v. Ohio, 379 U.S. 89, 91 (U.S. 1964); State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970).

If you have been arrested, detained, stopped, or investigated in Jacksonville or the surrounding counties of Northeast Florida, you may have legal defenses available to the contest the charge or mitigate possible penalties. Contact Hussein & Webber, PL today for a free consultation.