What is a "consensual encounter" in a criminal case?
Why is the police officer being just a little too friendly?
The United States Constitution requires a law enforcement officer to have reasonable suspicion that a crime was committed before a police officer can detain a person. In other words, without a warrant, cops generally cannot demand that a person stop and speak with them if there is no suspicion of criminal activity. (There are some exceptions, for instance an officer can inquire if there appears to be a medical issue.)
If a cop detains a person without a warrant and where there is no reasonable suspicion of criminality, it may be an illegal detention. If the initial detention of the individual was illegal then there may be grounds to file a motion to suppress any evidence that was found as a result of the illegal detention.
What is a consensual encounter?
A consensual encounter is no different than any encounter that two citizens may have, for instance, when meeting on the street. They may say hello, the may choose to have a conversation, but at all times both people will feel free to leave and go their separate ways. A consensual encounter with a police officer is no different. Generally, during a consensual encounter with law enforcement the citizen should still feel "free to go."
Why did the cop write in the police report that our encounter was consensual, when I definitely wasn't free to go?
The law requires an officer to have reasonable suspicion in order to stop or detain someone. Not all officers are honest, though. To get around the requirement of reasonable suspicion, a police officer will sometimes claim in the police report that the encounter with the citizen was consensual when in actuality it was a detainment. This is because if the encounter is consensual, the officer does not need to have reasonable suspicion to stop the person.
My encounter with the police was not consensual, but in fact was an illegal detainment, how will the judge know this?
If the officer detained your movement by physical force OR demonstrated a show of authority that led you to believe that you were not free to go, then you may have been detained. The judge will likely consider several factors in making a determination of whether you were detained or not. Factors that the judge will consider include whether law enforcement:
1. Ordered you to raise your hands,
2. Cut you off or pulled in front of you to hinder your movement,
3. Touched you,
4. Displayed a weapon,
5. Surrounded you, or
6. Talked to you in a way, manner, or tone of voice that indicated that you had no choice but to comply with their demands.
Call (941) 444-5128 to speak with an attorney for a free consultation. Our attorneys will analyze your case to determine if you were illegally detained. If you were, we will fight for the illegally obtained evidence to be suppressed, which may result in the entire case being dropped by the state attorney.
Soler & Simon is a Sarasota, FL law firm helping people charged with possession of drugs and various drug related charges. Please visit our Drug Crimes page for more information on how we can help defend your drug possession case.