Florida Law on Consensual Encounters

Florida Law on Consensual Encounters

Florida Law on Consensual Encounters

What is a consensual encounter? They are confrontations between regular citizens and law enforcement. Usually, they are casual conversations where the citizen assumes he or she can end the confrontation at any time. The police generally instigate the consensual encounter because something has occurred that addresses public safety or a citizen's safety. Consensual encounters involve minimum contact with the police and are not afforded Fourth Amendment protection because they are not considered a stop or search.A court will look to the unique facts of the case to determine if a reasonable person would believe he or she was free to leave, to decide whether an encounter between a police officer and a citizen is consensual. An encounter will probably be considered to be consensual instead of a stop unless the law enforcement officer actually tries to prevent the citizen from walking away during the encounter. State v. Mitchell, 638 So. 2d 1015 (Fla. 2nd DCA 1994). An encounter will probably be considered as consensual unless the officer says something to indicate the citizen cannot walk away. State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991). However, the law does not require that the officer expressly tell the citizen he is free to decline cooperation. State v. Livingston, 681 So. 2d 762 (Fla. 2d DCA 1996). In the context of vehicle searches and seizures, Florida law also acknowledges the "community caretaking function." See e.g. Castella v. State, 959 So.2d 1285 (Fla. 4th DCA 2007); State v. Patrick, 437 So.2d 217 (Fla. 4th DCA 1983). A police officer's community caretaking function comes into play so that the officer can initiate contact with a person under the duty to investigate. The community caretaker function usually applies when an officer is concerned for the safety, well-being, or health of a driver or other citizen. Florida law treats the community caretaking function as wholly distinguished from law enforcement's duty to investigate a crime and acquire evidence related to a crime. Courts do not acknowledge that the community caretaking function for officers extents to warrantless searches of homes and residences. Ortiz v. State, 2009 WL 1097258 (Fla. 5th DCA 2009). A criminal defense attorney must be familiar with the latest case law on Fourth Amendment protections if the prosecutor raises an argument that the consensual encounter or community caretaking function theories prohibit the Fourth Amendment from protecting the defendant. Hundreds of cases make up the law that dictates what is a stop in contrast to what is a consensual encounter. It is a criminal defense attorney's job to distinguish the varying facts under case law to determine which are the most similar cases that will help an accused in raising a Fourth Amendment protection argument in his or her defense.

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