The Florida Citizen's Guide to the Fourth Amendment: Part I
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. --Fourth Amendment, United States Constitution.
The Fourth Amendment is part of the Bill of Rights which guards citizens against unreasonable searches and seizures by members of law enforcement. As a Tampa Criminal Defense Lawyer, I deal with the Fourth Amendment in almost each and every one of my clients' cases. It is my job to make sure my clients' rights were not violated in any way during this initial police-citizen encounter. If it is determined that my clients' rights were violated, then any evidence derived from that encounter will be thrown out of court via a Motion to Suppress. In most cases, should a defendant's Motion to Suppress be granted by the Judge, the State's case will be damaged to the point where the charges against the defendant will ultimately be dismissed.
Stop and Search: Reasonable Suspicion vs. Consensual Encounter
As you can imagine, most arrests begins with some sort of police-citizen encounter. During that encounter, the police will either gain the citizen's consent to create a "consensual encounter, " or the police will curtail or limit the citizen's freedom to leave in some way to create a investigative or temporary detention.
To create a consensual encounter, the police would simply ask to speak with the citizen in such a manner where a reasonable person would believe that he or she would be free to leave from the encounter at any point in time. During a consensual encounter, a citizen can comply with a police order or choose to ignore it. Robinson v. State, 550 So.2d 1186 (Fla. 5th DCA 1989). Conversely, to justify a stop or any other temporary detention, a law enforcement officer must have a founded reasonable suspicion that a person has committed, is committing, or is about to commit a crime. For the suspicion to be founded, it must "have some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer's knowledge." An investigatory stop cannot be based upon mere or bare suspicion of criminal activity. A hunch, even based upon an officer's experience, cannot be the basis for an investigatory stop. Brown v. State, 636 So.2d 174 (Fla. 2d DCA 1994); Nealy v. State, 652 So.2d 1175 (Fla. 2d DCA 1995); Mayhue v. State, 659 So.2d 417 (Fla. 2d DCA 1995). Even in the case where the police are attempting to serve an arrest warrant, it does not give police a license to duck the reasonable suspicion requirement and arrest someone they only have a subjective hunch is the subject of the warrant. Rios v. State, 32 Fla. L. Weekly D1757a (Fla. 2d DCA July 25, 2007).
To better describe how the Fourth Amendment comes into play, take Florida's open container law for example. Many charges arise from searches incident to arrest for possession of an open container. This occurs when a citizen may be outside with an open container of alcohol and come into contact with police. The police then make a valid arrest for the open container violation, search the person before taking them to the station and discover some sort of contraband during that search. So what started as an open container violation could turn into several more serious charges if the citizen had something illegal (i.e. drugs) in his/her pockets.
Do not assume that the citizen having an open container gives law enforcement a free pass to search incident to arrest. Several issues a Tampa Defense Attorney may explore are whether the can, bottle, or cup bears some sort of label. If not, then it would be necessary to show how law enforcement knew, prior to the detention, that the open container contained alcohol. If the State cannot explain this, then any evidence or contraband obtained after the initial detention would be suppressed out of court. On the other hand, if the police explain that the encounter was consensual and the citizen voluntarily stopped, which gave the police an opportunity to view the contents of the container, the police would then have probable cause to arrest based on Florida's open container law and a search following the arrest would be deemed valid.
The legal principals described in the example above apply to all types of police-citizen encounters in Florida. If you need assistance to determine whether you were treated fairly by police, contact an experienced Tampa Defense Attorney for a free consultation.
Since 1985, the attorneys at Roman & Roman, P.A. have provided quality legal representation for individuals throughout the State of Florida. Over the years, they have helped restore the lives of people involved in many criminal matters in Tampa, Florida and the surrounding communities. They have extensive legal expertise in all aspects of criminal defense, including traffic offenses, DUI (driving under the influence), battery, assault, robbery, burglary, theft, drug offenses, sexual crimes, misdemeanors, felonies, and more.
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