If you have been stopped and arrested and evidence was seized as a result of the stop or arrest you are entitled to a hearing to determine whether the evidence was illegally seized. In many cases a law enforcement officer will illegally seize evidence after a warrantless stop or arrest. The State must prove that the evidence was legally seized. Any evidence obtained as a result of an illegal stop, detention or arrest must be thrown out.
There are three levels of police-citizen encounters.
- The first level is a consensual encounter and involves only minimal police contact.
- The second level involves an investigative stop.
- The third level involves an arrest.
During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore the police and walk away. A citizen is free to leave during a consensual encounter. When an officer stops and detains a citizen, and he is not free to leave, this is clearly not a consensual encounter. For example, if a police officer stops a citizen and asks how he or she is doing, and the citizen says ok, that is a consensual encounter. If the citizen decides to continue on his way and the officer says that he cannot leave, the encounter becomes a stop, not a consensual encounter.
During an investigative stop a police officer may detain a citizen temporarily if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. An investigative stop requires a real suspicion of criminal activity. The officer cannot say that someone looked suspicious. He must be able to say specifically how the citizen was suspicious. General suspicion is not enough to support a stop. An encounter between a police officer and a citizen becomes an investigative stop when a citizen is not free to leave. If the officers does not have a reasonable suspicion that the citizen has committed, is committing, or is about to commit a crime, there is no real suspicion of criminal activity. For example, if a white man robs a liquor store wearing blue geans and a red shirt and a police officer stops a black man wearing white shorts and a blue shirt five miles away there is no reasonable suspicion that the citizen committed the liquor store robbery. When a police officer detains a citizen, without a reasonable suspicion, or probable cause to arrest, the detention restricts the citizen’s freedom of movement because a reasonable person under the circumstances would believe that he or she should comply. For example, when a police officer tells a citizen not to leave the area, a reasonable person would believe that he should not leave. If an officer asks a citizen not to leave the area without a legitimate reason, the detention is invalid and all any evidence obtained from the illegal detention is also illegal.
An arrest must be supported by warrant or probable cause that a crime has been or is being committed. A police officer cannot arrest a citizen for a misdemeanor unless he sees the crime being committed. A police officer cannot arrest a citizen for a felony without a warrant unless he has probable cause to believe that the citizen committed that felony. For example, if a red car is involved in a hit and run on Hwy 60 at midnight, a police officer cannot arrest the driver of a red car ten miles away at noon the following day without a warrant or probable cause to believe that the driver committed the hit and run. The police officer must have a warrant or probable cause, actual evidence, that the driver of the red car committed the hit and run. If not, the arrest is illegal and all evidence obtained from the illegal arrest is also illegal.
If you or a loved-one have been illegally stopped, detained, arrested or searched, you may be entitled to have all the evidence thrown out and the case dismissed. The State must show that the evidence was lawfully seized. You may need the assistance of an attorney to get the evidence thrown out and get a the case dismissed. The attorneys at Fernandez and Hernandez have experience getting evidence thrown out and will work vigorously to protect your rights, and in many cases, may be able to get your case dismissed.
If you or a loved one need legal assistance with a stop, search or seizure call Tampa Criminal Defense Attorney Daniel J. Fernandez of Fernandez & Hernandez at 813 229-5353.