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When Does an Encounter With Police Become a Seizure Under the Law in Florida?

The Fourth Amendment and the Florida constitution provide that people have a right to be free from unreasonable searches and seizures conducted by the state.  There are thousands of court cases that interpret what exactly this means in the context of the different police encounters.  As a general rule, the police in Florida are allowed to go up to anyone and ask questions, even if the police suspect that person committed a crime and are trying to acquire incriminating information.  Of course, that person is free to refuse to answer those questions.  The police can walk up to a person’s front door (as long as access is not protected by a gate or other privacy barrier) or knock on a driver’s window to ask questions.  If the subject chooses to engage the police and answer, the constitutional search and seizure provisions do not apply.

However, if the encounter develops into what is considered a seizure, the police need to establish reasonable suspicion of criminal activity or probable cause or possibly have a search warrant depending on the circumstances.  For instance, consider an example where a police officer sees a car stopped somewhere suspicious with the driver inside the vehicle.  The officer might suspect something improper or just wonder if the driver is having trouble of some kind.  Often, the police officer will suspect that the driver is driving under the influence of alcohol or drugs (DUI).  That police officer can approach the vehicle, look into the window and investigate further.  The police officer can ask the driver to roll down the window so they can talk.  If the driver agrees or voluntarily exits the vehicle, this is considered a lawful and consensual encounter.

What often takes this scenario to the next level is if the driver does not respond for whatever reason or refuses to answer the police officer.  Normally, the police officer will then order the driver to turn off the vehicle or roll down the window or step out of the vehicle.  The police officer might park his/her vehicle behind the other vehicle preventing it from leaving.  The key to whether an encounter escalates into something requiring evidence of criminal activity is whether the subject reasonably feels like he/she is free to disregard the officer and leave.  In reality, when a police officer asks or tells anyone to do anything and that person refuses or ignores the officer, the officer is almost never going to let it go.  However, under the law, there are certain situations which qualify and certain that do not.  The examples I listed earlier in this paragraph are generally examples of commands that change the encounter to a seizure and require at least reasonable suspicion of criminal activity.  If the police officer looks into the vehicle, asks questions and the driver ignores the police officer, the officer cannot command the driver to exit the vehicle without a legal basis.  At this stage, the police officer must be able to point to some facts suggesting a crime is being committed, which would be difficult to do in the DUI context if the window is up.

Police can investigate further if it appears the driver is in some sort of distress.  If the driver is unresponsive or appears to be having a medical problem, the police officer can take reasonable steps to try and wake the driver up and otherwise find out if there is a problem.  However, once it becomes clear the driver is not in distress and no evidence of a crime is apparent, the police officer has to terminate the encounter if the driver s not engaging.  Simply refusing to respond to a police officer or ignoring a police officer is not a legal basis for a seizure or a search without evidence of criminal activity.