When the Fourth Amendment Does Not Protect You – Consensual Encounters

A consensual encounter with a law enforcement officer is not considered a stop or search and therefore, is not entitled to Fourth Amendment protection. A consensual encounter generally arises when an officer approaches a citizen to inquire about an incident that concerns public safety or the citizen’s safety. During these encounters, there is usually minimal contact with the officer and the citizen is free to leave or end the conversation at any time.

To determine whether the contact between the officer and the citizen is consensual, the Court looks at the facts of the case to decide whether a reasonable person would have believed he was free to leave. Unless the officer tries to prevent the citizen from exercising his right to walk away, the encounter will likely be considered consensual rather than a stop. State v. Mitchell, 638 So. 2d 1015 (Fla. 2nd DCA 1994).

If the officer’s language does not indicate the citizen could not have walked away, that encounter will likely be considered consensual. 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).

Florida law also recognizes, in the context of automobile searches and seizures only, what is known as 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). The community caretaker function of a law enforcement officer allows him or her to initiate contact with a citizen due to a duty to investigate, usually based on a concern for the health, well-being, or safety of a driver or other citizens.

The community caretaking function is considered completely separate from the officer’s duty to acquire and investigate evidence related to a crime. Courts have declined to recognize the community caretaking function for officers in the context of warrantless searches of residences and homes. Ortiz v. State, 2009 WL 1097258 (Fla. 5th DCA 2009).

If the State’s prosecution against a criminal defendant relies on the argument that he or she is not entitled to Fourth Amendment protection under the consensual encounter or community caretaking function theories of law, it is important that the criminal defense attorney representing such a defendant be familiar with the latest case law on this subject matter.

There are dozens, if not hundreds of cases that define what constitutes a stop as opposed to a consensual encounter. The nuances that distinguish these cases may be very subtle and the criminal defense lawyer must be able to understand and rely on the most analogous cases that will help the defendant in assisting the Court in ruling that Fourth Amendment protections apply. If you feel that your Fourth Amendment rights have been violated, call St. Petersburg drug crime attorneys at Rooth Law Group for a free consultation today.

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