When can a police officer stop and search you? This is a question often asked to criminal defense lawyers, but can rarely be answered with any degree of specificity. Why? Because whether a police officer has illegally stopped and searched you is a mixed question of fact and law. Rarely, are two cases exactly the same factually. So, it is up to the trial judge to listen to the testimony and evidence at a suppression hearing, to determine which facts he or she believes to be true and whether under those facts, the officer acted within the law based on prior case law. Recently, in a rare reversal, the Eleventh Circuit Court of Appeal reversed a Federal District Judge’s denial of a motion to suppress. Here’s why?
The stop and seizure of Patrick Heard
Officers received a 911 call stating that there were gunshots in the woods behind an apartment complex. Patrick Heard was walking his dog at the apartment complex when two police officers arrived and approached him approximately 15 – 29 minutes after the 911 call. The officers asked Patrick if he had heard gunshots. Patrick told the officers that he had heard gunshots coming from the woods. The officers asked Patrick for his identification, which he readily provided. The address on his license didn’t match the address to the apartment complex so the officers asked him if he was staying with someone in the apartment complex. Patrick answered that his mother lived at the apartment complex and pointed up towards an apartment, but didn’t provide the apartment number. According to the officers, Patrick was swaying. The officers asked Patrick if they could search him and he stated, “I didn’t do anything wrong.” An officer told Patrick to raise his hands so they could pat him down. The officers found a firearm on Patrick and arrested him because he was a convicted felon in possession of a firearm.
The law relating to search and seizure
A police officer can’t just walk up to you and start searching you. The Fourth Amendment to the Constitution forbids this type of police action. The Fourth Amendment prohibits “unreasonable searches and seizures.” It is the judge in your case and appellate courts on appeal that determine which searches and seizures are reasonable and which searches and seizures are unreasonable. Officers must have “reasonable suspicion” to believe that you have or are about to commit a crime. What is reasonable suspicion? It is what a judge determines it is. I can tell you that it is a low burden. It is less than probable cause. Basically, officers just have to be able to articulate facts that objectively leads them to believe that the person has or is going to commit a crime. This type of search is called a “Terry stop,” based on a U.S. Supreme Court decision.
Although officers can’t walk up and search you without reasonable suspicion, they can walk up to you and engage in a “consensual encounter.” In other words, if an officer walks up and starts asking you questions and asking to search you and you agree, a judge may determine this to be a consensual encounter not subject to suppression of any discovered evidence. Therefore, in order to ensure that your constitutional rights are implicated, you should refuse officer requests to search. If the officer’s request turns in to a command, the officer will have to be able to articulate reasonable suspicion.
A consensual encounter becomes a seizure if a reasonable person wouldn’t feel free to leave or to refuse. Who decides? The trial judge. The judge will listen to the testimony and evidence to determine whether law enforcement used physical force or a sho of authority to restrain the freedom of the person.
What did the courts do in Patrick Heard’s case?
Patrick’s criminal defense attorney filed a motion to suppress the firearm based on an illegal search and seizure. A magistrate judge held a hearing where the officers testified. The magistrate judge recommended to a district judge that the motion to suppress be granted. The district court judge, however, decided to have a hearing of his own and the officers again testified. The district court judge disagreed with the magistrate judge and subsequently denied the motion to suppress. Patrick pled guilty but reserved his right to appeal the denial of the motion to suppress. He subsequently appealed and the Eleventh Circuit Court of Appeal reversed the district court judge.
The Circuit Court held that the officers had not developed articulable facts that would lead to reasonable suspicion which would support a Terry stop and search of Patrick Heard. The Court decided under the facts elicited at the hearings that there was no reasonable suspicion to believe that Patrick was engaged or was about to engage in criminal behavior. Criminal defense attorneys can now use this case in support of future motions to suppress where there are similar facts.
Read United States v. Heard.
Jeremy Lasnetski, managing partner at Shorstein, Lasnetski, & Gihon is a Florida Bar Board Certified Criminal Trial Lawyer and has been practicing criminal law in Jacksonville for over 16 years. Mr. Lasnetski received his Bachelor of Arts degree with honors from the University of Florida in 1997 and went on to obtain a law degree and an M.B.A. from the University of Florida in 2001.
After graduation, Mr. Lasnetski accepted a position as a prosecutor at the State Attorney’s Office in Jacksonville. During the next 6 1/2 years as a prosecutor, Mr. Lasnetski tried more than 50 criminal trials, including more than 40 felony trials. He was promoted in 2007 to Division Chief of the Repeat Offender Unit. Mr. Lasnetski was also a full time member of the Homicide Prosecution Team. In 2008, Mr. Lasnetski formed the Law Office of Shorstein & Lasnetski and began defending citizens in criminal court. He represents clients in both State and Federal criminal courts.