KNOW YOUR RIGHTS / If an officer asks to speak to me on the street, do I have to answer him?

By Barry Kirscher

The Florida Supreme Court has stated that there are only three possible police-citizen encounters: the consensual encounter, the investigative stop, and an arrest.

The first encounter does not impact a constitutional right, (Fourth Amendment to be free from unreasonable searches or seizures), because it is based on consent. A police officer, like any other person, may approach you on the street and try to engage you in conversation, such as remarking how wonderful the weather is. Therefore, an officer may approach an individual encountered at a closed strip mall at 2 a.m. and inquire if that person needs help, a taxi cab, or is lost, etc. During a consensual encounter a citizen may voluntarily comply with the officer’s request to engage in conversation or simply ignore him or her.

The Supreme Court provided further guidance when it stated that “police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” The Court has also stated that there is no seizure “unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave.”

Therefore, whether an encounter is consensual will depend on whether the officer’s words and actions would have led a reasonable innocent person to believe that he was not free to leave. Any show of force, or giving orders rather than making requests, blocking one’s egress, or physically touching the person, will be viewed as threatening in nature and convert the consensual encounter into a seizure. A seizure is governed by the Fourth Amendment.

The second level of encounter is an investigatory stop, which is a seizure of the person. An officer may temporarily detain a citizen upon a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. For an investigatory stop to be lawful the officer must have a well-founded, articulable suspicion (that is a suspicion he can put into words). A “gut feeling” is not enough. In deciding whether an officer had a well-founded suspicion of criminal activity, the courts will consider the totality of the circumstances based on the officer’s experience, knowledge, and training. Factors that may be considered in making that determination include the time of day, the location, day of the week (work or school day v. weekend), the suspect’s appearance and behavior, or anything unusual in the situation in light of the reputation of the location, (high crime area), and the suspect’s flight from the officer.

Therefore, the answer to the opening question is that under ordinary circumstances an innocent person has the absolute right to refuse to engage the officer, is free to walk away and ignore the officer’s request to speak. If, however, the underlying circumstances are suspicious, such as walking through a parking lot testing door handles for an unlocked car, or walking through a strip mall at 2 a.m. trying business door locks, or loitering in a high crime area and then running from police presence, those circumstances would support an officer’s investigatory stop. The officer is then permitted to temporarily detain the individual, determine his identity, and the reasons for his presence where found. If the officer develops probable cause to support an arrest (the third level of police-citizen contact) he may do so, if not the individual must be allowed to go on his way.

Editor’s Note: Barry Krischer has been a criminal law practitioner for 48 years. He served as State Attorney in Palm Beach County from 1992 – 2008. He currently volunteers at the Palm Beach County Sheriff’s Office, Legal Affairs Unit, and regularly provides in-service training to law enforcement officers. He can be reached at [email protected].

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