The Three Levels of Police Citizen Encounters

As a St. Petersburg criminal defense attorney, I routinely hear about the circumstances under which a potential client was detained, arrested, and thereafter prosecuted for a criminal offense. In a recent case, one of my clients was approached by a police officer, while walking through a parking lot at night, and asked what he was doing. Unaware of the three levels of police citizen encounters, and therefore his legal rights at that particular juncture, he engaged the officer in conversation. Before long, he admitted to being in possession of a controlled substance, which resulted in his arrest on a felony charge and subsequent prosecution. While the charge was ultimately dismissed, had he known his rights at the time of the encounter, and chose to exercise them, the balance of his evening would not have been spent in the Pinellas County Jail.

The first tier of police/citizen encounter is what is called the "consensual encounter". Under these circumstances, a police officer may approach a person on the street, ask the person to produce his or her identification, and may ask the person an array of questions, such as what they are doing and why they are at that particular location. The officer may also ask the person to consent to a pat down of his or her outer clothing, or to a more intrusive search involving pockets, purses, or bags. To initiate a citizen encounter, the officer need not have any basis to believe that the citizen has committed a crime, is in the process of committing a crime, or is about to do so. On the flip side of that coin, the citizen is not required to produce identification, is not required to answer any questions, does not have to consent to a search, and is free to leave. As long as the interaction involves no coercion or restriction on movement, it is not subject to Fourth Amendment scrutiny. The example above involved a consensual citizen encounter. The officer had no basis to suspect my client of criminal activity. Thus, had my client politely said hello and kept walking, there would have been nothing the officer could have done to detain him.

The next level of police citizen encounter is what is referred to as a "stop" or, in legal vernacular, a "Terry Stop". It is referred to as a "Terry Stop" because the seminal case on this level of encounter is Terry v. Ohio, which was decided by the United States Supreme Court in 1968. Here a police officer is justified in temporarily detaining (or seizing) a person if the officer has a "reasonable suspicion" that the person has committed a crime, is committing a crime, or is about to commit a crime. "Mere suspicion" or "bare suspicion" that criminal activity is afoot is not enough to justify an investigatory detention. Where the officer detains a person without the requisite degree of suspicion, the person's Fourth Amendment right against unlawful search and seizure is violated. If contraband or evidence of criminal activity is uncovered as a result of the unlawful detention, it is suppressible. Florida courts have routinely held that an interaction is elevated from a consensual citizen encounter to a stop when a reasonable person, under the same circumstances, would not believe that he or she was free to leave. You should know that if the officer believes that the detained person is armed with a dangerous weapon, he or she may conduct a pat down of the person's outer clothing for the presence of the weapon. This scenario is often referred to as a "Stop and Frisk". Florida's stop and frisk statute is set forth in section 901.151(1)-(6).

The Florida Supreme Court distinguished a "consensual citizen encounter" from a "Terry Stop" in Popple v. State, 626 So.2d 185 (Fla. 1983). In Popple, a police officer was investigating a stolen, abandoned vehicle in a high crime area at night. While awaiting a wrecker, the officer glanced into his rear view mirror and observed the appellant seated in a parked vehicle about four blocks away. The officer pulled in behind the appellant and observed the appellant making furtive movements inside. The officer approached and asked the appellant to step from the vehicle. As the appellant did so, the officer observed a crack pipe on the floor board. Apparently, the officer would not have been able to see the pipe if he had not asked the appellant to step from the car. The issue in Popple was whether, by virtue of asking the appellant to step from the vehicle, the officer elevated the interaction from a consensual encounter to a Terry stop, without the requisite reasonable suspicion of criminal activity. In other words, the question was whether the appellant was unlawfully seized upon being ordered to step from inside the vehicle. The Florida Supreme Court held that he was, and that the evidence obtained as a result of the unlawful seizure (the pipe and cocaine) should have been suppressed by the trial court. His convictions were reversed.

You should be aware that in Florida, the circumstances under which a police officer may lawfully stop you while driving your car differ somewhat from the circumstances under which he or she may detain you while parked or while walking along the street. For example, in Deshong v. State, the Second District Court of Appeal (which governs Pinellas and Hillsborough counties) held that the police may stop a vehicle "in situations less suspicious that that required for other types of criminal behavior". See 603 So.2d 1349 (Fla. 2nd DCA 1992). In dicta, the Court stated that "driving behavior need not reach the level of a traffic violation to justify a DUI stop". The officer may conduct a brief investigatory stop of the vehicle if, based on the officer's observations, he or she believes that the driver may be sick, injured, tired, or experiencing mechanical difficulty. There is an array of cases from the various districts that have reached a similar conclusion. This is all the more reason you should avoid driving if you have had a few - unfortunately it doesn't take much to lawfully justify a traffic stop under these circumstances.

The final level of police citizen encounter is a full blown arrest. An arrest is obviously the most intrusive and restrictive of the three levels and must be supported by "probable cause". Stated differently, the officer must have probable cause to believe that the arrestee has committed a crime. Probable cause is a higher standard than reasonable suspicion. When a citizen is placed under arrest, his or her person is subject to search as is the area within his or her immediate reach. Where the arrest is supported by probable cause, and otherwise lawful, any evidence or contraband uncovered in a search incident to that arrest is admissible against that person. If the arrest is not supported by probable cause, or is otherwise unlawful, any evidence obtained in conjunction with the arrest may be suppressed.

Florida Statute section 901.15 sets forth the circumstances under which a police officer in this state can arrest without an arrest warrant. Generally speaking, the officer may affect an arrest for a felony offense if he or she has probable cause to believe the crime was committed, even if it was not committed in his or her presence. To effect an arrest for a misdemeanor however, the offense must generally be committed in the officer's presence (and supported by probable cause). There are however certain exceptions to the rule that the offense be committed in the officer's presence which include, for example, acts of domestic violence, battery, criminal mischief, and petty theft.

Those are the three levels in a nutshell folks. Hopefully this has shed some light on your rights and obligations under each scenario. Often times, these cases are very fact intensive and whether a stop or arrest is lawful may turn on some seemingly minute detail. Therefore, specific questions about your particular case should be directed to an experienced St. Petersburg criminal defense attorney.

Categories: Criminal Defense