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Consensual Encounter with Police Officers vs. an Illegal Detention

When is an encounter with a police officer considered consensual and when is it considered an illegal detention under Florida law? The answer could be the difference between incriminating evidence being used against a defendant charged with a crime like possession of drugs or possession of a firearm by a convicted felon and having crucial evidence like drugs or a gun being thrown out of court.

The general rule in Florida is that the police may request identification, typically a driver’s license, from a person and briefly hold onto that identification for a reasonable period of time, perhaps long enough to check the person for outstanding warrants. This is considered a consensual encounter with police. However, depending on the circumstances, if the police officer holds onto a person’s license or other identification for longer than necessary for the warrants check or if the police officer shows other signs of authority, the encounter may turn into an illegal detention. If the encounter with police turns into an investigatory detention and there is no reasonable suspicion of criminal activity to support the detention, the detention may likely be considered illegal and any evidence obtained as a result should be thrown out.

Factors that support the argument that an encounter with the police has shifted from consensual to an investigatory detention are:

– holding onto a person’s driver’s license or other ID longer than necessary to check for warrants or learn basic identification information – the presence of multiple police officers involved in the encounter – commands by the police officer(s) to stand a certain way or move to a certain area – other questions or commands by the police officer(s) that would lead a person to believe he/she is not free to leave – the demeanor of the police officer(s)
– the length of the encounter – other actions by the police officer(s) like the use of sirens, showing their badges, pulling out their guns, taser or other weapons and other exhibitions of force or authority
The bottom line is whether a reasonable person in an encounter with police feels like he/she is free to leave and terminate the encounter. One obvious way to make this determination is to ask the officer(s) if you can leave. Some people may be reluctant to do this for fear of angering the officer or raising suspicions. Of course, if the officer still has your driver’s license or identification card, you do not want to leave without that. Consequently, if the officer keeps your license for an unreasonably long period of time, the encounter may no longer be considered consensual. Of course, if you ask for your license back when the officer is finished with a brief warrants check, refusal to return it would likely give a person reason to believe that he/she cannot yet leave.

There are many factors to be considered in determining whether a police encounter was consensual or an illegal detention. If incriminating evidence was obtained as a result of the encounter, the answer to that question may be the difference between a conviction or criminal charges being dismissed. Ultimately, the question may be decided by the criminal judge at a motion to dismiss evidence hearing.