Sometimes as Fort Lauderdale criminal defense lawyers, we are asked whether police can stop and search people for no reason at all. The short answer is: No. Law enforcement officers can’t simply stop or search people on a whim or a hunch. They need more than that to both initiate a stop and to search a person or their property.
Police know this too. But the question becomes whether we can discern if the reason given was adequate or merely pretextual. We’ve seen situations where police do stop and search people with little more than a gut feeling - mostly because they assume the person doesn’t know their rights and won’t challenge it in court.
This is why it pays to hire an experienced Fort Lauderdale criminal defense attorney - one who will carefully assess whether the basis of the initial stop was rooted in reasonable suspicion, and whether the search met the criteria for probable cause and/or the basic standards of the Florida Stop and Frisk Law, as outlined in F.S. 901.151.
Reasonable Suspicion and Probable CauseTo temporarily detain someone for the purpose of ascertaining whether a crime has been committed, police in Florida must have reasonable suspicion, also known as “reasonable articulable suspicion.” It is the standard by which the courts determine whether one who is both reasonable and objective would likely suspect someone else of the intention or actual commission of a crime.
The law and courts are very clear that it is to be more than a hunch. As noted in the U.S. Supreme Court ruling in Kansas v. Glover, officers can initiate brief investigative traffic stops when there is a particularized and objective basis to suspect legal wrongdoing. There must be clear and specific reasons. The level of suspicion required varies depending on the practical and factual considerations of everyday life and actions of ordinary people (not legal experts) who are both reasonable and prudent. Basically, the courts expect the cops to make judgments and inferences based on commonsense knowledge about human behavior - and then be able to clearly articulate those.
But even reasonable suspicion on its own isn’t enough to justify a search of someone’s car or person. Reasonable suspicion provides an intentionally limited scope of authority. For a search, you need probable cause.
Probable cause requires greater proof than reasonable suspicion. It’s when an officer assesses the facts and circumstances the way any reasonable or prudent person would and concludes the suspect has committed or is about to commit a crime or traffic violation.
As the Florida Supreme Court held in the 2003 case of Sanchez v. State, where traffic stops are valid and legal under the Fourth Amendment to the U.S. Constitution, it is “only for the temporary detention of the violator, and for the limited purpose of assessing the traffic violation.” The 4th Amendment also protects people from unreasonable searches and seizures, which means they can’t use a traffic stop or detention of a person on the street as a means of investigating other violations of law for which there is no probable cause or articulable suspicion of a crime.
What About Stop-and-Frisk in Florida?Most states have stop-and-frisk laws, and Florida is no exception. The Florida stop-and-frisk statute allows cops to briefly detain someone for purposes of figuring out who they are and the circumstances of their presence in a given area that led the officer to the reasonable suspicion the person was involved in criminal activity. They can only search the person if the officer has reason to think the person may have a weapon.
To be clear, the ability of a police officer to temporarily detain you and search you for weapons is not a reasonable suspicion loophole. It is a slim exception to the rule requiring probable cause for searches. An officer still cannot stop and frisk a person without reasonable articulable suspicion.
In the 1960s landmark case of Terry v. Ohio, the U.S. Supreme Court held that the 4th Amendment allows an officer to stop someone on the street and frisk them - but ONLY if the officer has:
These stops and searches must be brief. If the officer doesn’t glean any further information that would reasonably lead them to think the person committed a crime, they must let them go.
If you are the target of a stop-and-frisk, you are within your rights to voice your clear refusal to consent to be searched or to provide information beyond your name without a criminal defense attorney present. Saying this might make an officer more suspicious of you, but it can’t be used against you in court. It also won’t necessarily stop a search, further questions, or even an arrest. And resisting physically pushing back or running away could result in additional charges. However, simply stating your lack of consent to a search or answering questions without a lawyer preserves your right to later challenge the grounds on which the search was conducted in the first place. If the officer lacked reasonable suspicion for the stop and the search, whatever evidence was discovered thereafter is subject to suppression - which means prosecutors can’t use it against you.
Can an Officer Run a Warrant Check With My License Absent Reasonable Suspicion?Law enforcement officers initiating an investigatory stop need reasonable suspicion. In the course of that stop, they can ask for your license, and likely will run a background check for active warrants.
But what if the initial stop isn’t investigatory? What if it’s “voluntary”?
The 2007 U.S. Supreme Court case of Golphin v. Florida answered this question in the affirmative.
It was longtime practice in Florida for police to patrol high-crime areas and randomly stop individuals to conduct “field interviews.” No reasonable suspicion is required when an interaction with police is “voluntary.” But in the course of conducting these field interviews, it was common for police to request identification to ascertain the identity of the person - something that is legal. But absent reasonable suspicion, could they lawfully hang on to that person’s identification card long enough to run an active warrants check? The trial court, appellate court, and Florida Supreme Court all ruled yes, reasoning that retaining a person’s driver’s license was not a “seizure” under the Fourth Amendment, and the person is still lawfully allowed to leave the interaction - even if the police keep their license. (The majority in Florida Supreme Court conceded that the notion that a “reasonable person” would feel free to end the encounter and risk abandoning their ID card was “somewhat vulnerable to honest intellectual challenge and discourse,” but nonetheless concluded the suspect in this case technically free to end the encounter.)
Although two other state supreme courts and one other federal court agreed with this same reasoning, this was in conflict with the legal reasoning of seven other state supreme/federal appellate courts. For instance, in the 2006 case of U.S. v. Lopez, the U.S. Court of Appeals for the 10th Circuit ruled that an officer’s retention of ID to conduct a warrants check does impact the seizure of an individual - meaning it would be a violation of one’s 4th Amendment rights if not initiated on the basis of reasonable suspicion. (Courts also disagreed about whether the discovery of a warrant is an intervening circumstance that “removes the taint of an illegal detention initiated for the purpose of discovering that warrant.”)
The U.S. Supreme Court held in Golphin that 4th Amendment safeguards against unreasonable search/seizure weren’t implicated because even though there was no reasonable suspicion, the individual (who later became a defendant) voluntarily provided his ID to the officer to check for outstanding warrants. However, neither the Florida Supreme Court nor the U.S. Supreme Court held as a matter of law that any voluntary relinquishment of one’s ID gives police carte blanche to run warrants checks; determining 4th Amendment violations is fact-specific.
So in summary, to answer the question of whether police can run a warrants check with your ID despite not having reasonable suspicion is: Maybe. The question for the courts will be whether a reasonable person in your same situation would have considered the encounter to be “voluntary,” such that you felt free to leave.
If you’ve been arrested in Fort Lauderdale, our dedicated criminal defense lawyers will carefully assess whether it may be worthwhile to challenge the reason for the stop and/or search for the purposes of having the charges against you either dropped or reduced.
Schedule a free initial consultation with The Ansara Law Firm by calling (954) 761-4011.