1 [Editor's Note: Every effort has been made to keep these legal guidelines up to date. We welcome comments and suggestions on ways to impro~ve these guidelines. No police procedures should be changed, dlt'ered, or modified pursuant to the material found herein before consulting with your local sta~e at~orney', state Attorney General, supervisor, or United States Attorney.] LIST OF TO,PICS FLORIDA 1. Arrest by Warrant 2. Warrantless Arrest 3. Loitering or Prowling 4. Justifiable'Use of ForGe' 5. Arrest by Surety ~ 6. Consensual Encounte'rs, Reasonable Suspicions and Probable Cause 7. Stop'and Frisk ' " 8. Eyewitness.~ineup~,, ' 9. Miranda Warnings 10. Interrogations and Confessions 11.(.Arrests Within Dwellings ~ 12. Searches and Search Warrants 13. Automobiles ' 14. Seizur~ of Vehicles, ' ' 15. Arrest GUIdelines 16. Service of Process and Subpoena 17. Charging Documents 18. Fresh Pursuit.( 19. Custody 'and Release 20. Criminal Justice ' Procedure Flow Cliarti._ ",1; 21. Civil Action for Deprivation, of Rights ~ 22. Criminal Liability of Law Enforcement Officers 23. Florida's Residential Landlord and Ten-. ant Laws,'., i 24. Repossession '., 25. Motor Vehicle Repairs!~',i. 26. Removal or Towing or Vehicle Illegally Parked on Private Property 27. Child Custody Dispptes _ 28. Florida's Civil Forfeiture Statute 29. Foreign Nationals ) " 'J Missing Children 31. Sexual Harassment 1. '< ARREST BY WARRANT. Under Chapter 901. of Title. XLVII of the Florida Statutes (F.S.), a law enforcement officer is given the authority to make"an arrest for the commission of a crime with,or without a warrant. Under of the Florida Statutes, a warrant of arrest may be issued bya judge if after examination of the complainant 'and other witnesses, the judge reason- ably believes that the person complained against has committed an offense within the judge's jurisdiction. If the offense is for an offense which the judge is empowered to'try 'summarily, he or she shall issue a summop.s instead of a warrant, unless the judge reasonably believes that the person against whom the complaint was made will not appear upon a summons; in which event the judge shall issue a warrant :(F.S ). 't~ A peace officer making an arrest by a warrant 'shall inform the person to be arrested of the cause of arrest and that,a warrant has been issued,. except when the person flees orjorcibly resists before the officer has an opportunity to inform him or her, or when 'giving the information will imperil the arrest. The officer need not have the warrant in his or her posses~ion at the time of the arrest. However, 'on the request of the person arrested the officer shall show it to him or her as soon as practicable (F ). \ ' Under Rule of the Florida Rules of Criminal Procedurk (FRCRP) an arrest warrant' when issued shall: ", (1) b'e~ in wri~ing and in the name of State of Florida~,, " (2) set forth substantially the nature oldie offense; t,, " j',\ :: (3) command "that the... person against ~hom the complaint was made be arrested and brought before a judge;, (4J specify the name of the person to b~,arrested or, if the flame is unknown to the judge, designate the perso?l'liy any name or description by which the person can be' identified' with reasonable 'certainty; (5) state the date when isslled and the county where issued; - ') (6) be signed by the judge with the title of the office; and " " (7) in all offen$es bailable as of right, be endorsed with the amount of bail and the return date., No arrest warrant shall be dismissed because of any defect in form. Warrants which are defective in form may be subsequently amended by the fudge to remedy such defect: ',~', ', _ Under F.S , a peace officer making an arrest by warrant may use all necessary and'reasonable force to enter any building or property wqere the person to be arrested is or is reasonably believed to be, after the peace officer has announced his'or her authority and purpose and fails' to gain admittance. J " ~ 2. WARRANTLESS ARREST I A peace ' officer maki~g an ar~~st, with9ut a warrant" shall inform the person to be arr:ested of the officer's.authority and the cause of arrest except when the person flees or forcibly resists before the officer has an opportunity to.inform the person or' when giving the inf~rm~tion will imperil the arrest. F.S J.. ' '1" t L', LG-1
2 LG-2 LG-3 NOTE: ' An arrest is valid as long as there was objective probable cause, even if the officer had a different subjective motivation for -making the arrest. Arkansas v. Sullivan, 532 U.s. 769.(2001) (arrest for driving without registration or proof of insurance and carrying a weapon valid when su'pported by probable cause, even if the officer's"true:' purpose for making the arrest was to search defendant's car for drugs). An arrest is valid even if the criminal offense for which probable cause actually. exists is not "closely related" to the offense stated by-the officer at the time of arrest. Devenpeck v. Alford, 543 u.s. 146 (2004). An arrest may be made" by an officer without a warrant in the following instances (F.S. 90i.15; Fla.R.Crim.P.3.120):. " (1) if a felony or misdemeanor or violation of a municipal or county ordinance is committed in the presence of the officer (an arr,~st for the commission of a misdemeanor or the,violation of a municipal or county ordinance,shall be made immediately or in fresh pursuit);. (2) if a felony has been committed, not within. the officer's presence, and the officer "reasonably believes" the offender committed it; (3) if 'the officer "reasonably believes" th~t a felony has been or is being committed and that the person to be arrested has committed or is committing it;., (4) a warrant for arrest has bee~ issued and is held by another peace officer for execution;.. (5) a violation ofchapter.316 (Stat~ Uniform Traffic Control) l,aws has been committed in th~ presence of the officer (s~e in particular arr.est under F.S for driving under the influence);. (6). there is probable causit to believe that: (a) the person. has,knowingly committed a criminal act (see F.S , F.S , and. F.S ) in violation of an injunction for, protection entered pursuant to F.S Qr 'F.S, ;.. '~<';JJI'",.'.' (b) the person has committed a battery as. defined in F.S ;, (c) ' the pe~~on has committed an act of domestic violence as defined in F.S ;. (d) the person has committed an act of retail or farm theft as defined ii). F.S ; (e) ' the per:son, as the driver of a y,ehicle involved in a 'crash, Bas committed an offense under Chapters 316 and 322 in connection "Yith the crash'.. "., \ ' (f) the person is carrying a concealed weapon ~ (F.S and 790:02);,. (g) the person is guilty of disorderly con-, duct on the premises of ap.,establishment (F.s );. (h) the person has stolen personal 'property of a public"lodging establishment or public food service establishment (F.S ); (i) the person has committed the offense of trespass upon the grounds of a school facility (F.S ); G), the person has in his or her possession. an amount of cannabis less than 20. grams (F.S (6)(b) and (d»;. (k) the per.son has committed the offense of. stalking as defined in F.S ~ ; ~.' (l) the person has committed the offense of transit fare evasion (F.S. 812:015(4»;. ' (m) the person has contributed to the delin-. quency or dependency of a minor (F.S (1), (2»; (n) the person has committed the offense of criminal mischief or graffiti-related offenses (F.S ); _ (0) the person has, in his or her po~session, a firearm or ammunition when the person is subject to an injunction against committing acts of domestic violence (F.S ); ~. (P) the person has trespas~ed, as qescribed in : in any retail establishment, farm land or mass transit vehicle as described in '812:o-15 (see (3)(a), (4) and (5)(a); (q) a misdemeanor ha's been committed, based upon assigned affidavit provided to ' the officer by a law enforcement officer,of the United States government; (r) a felony was committed on stat,e military property or a misdemeanor was committed in the presence of a law enforceme~t officer of the Florida National Guard. ' NOTE: Arrest Mfldavits." When, preparing an affidavit following a warrantless. arrest, the officer should explain in the beginning of the affidavit the circumstances under which contact was first made with the arrestee, and should justify that contact as a consensual encounter or explain why it was supported by reasonable suspiclon or probable cause. 3. LOITERING OR PROWLING Under F.S it is unlawful for any person to loiter or prowl in a place, at a time10r in a manner not usual for law-abiding individuals, under circumstii\nces that warrant a justifiable and re~sonaple alarm Q..r immediate concern for the safety of persons or property in the vicinity. '. Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that (1) the person, ~akes flight upon appearance of a law enforcement officer, (2) refuses to identify himself, or (3)' manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would'otherwise b"e~ warranted by requesting that person to identify. himself or herself and explain his or her presence and' conduct. By case law, a'la:w 'enforcement officer must give the' person his ot:h.er Fifth Amendment rights before affording the person the opportunity to dispel any alarm. No person shall be convicted of an offense under this section if the law enforcement officer did not com- ply with this ~rocedure o! if it appears.at tri~l th~t the explanation given by the person IS true and, Ifbeheved by the officer at the time, would have dispelled the alarm or immediate concern. '. L, Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree. -, ;' j Any sheriff, policeman, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant if a delay in procuring a warrant would probably enable such suspected loiterer or prowler to escape arrest. F.s making it. unlawful for ~ny person to ioiter or prowl has been held'to be constitutional (Watts v. State, 463 So.2d 205 (Fla. 1985». However, since the statute (F.S ) reaches the outer limits of constitutionality, it must be. applied with special care (Carroll v. State, 573 So.2d 148, (Fla. 2d DCA 1991». (Also see D.A. v. State, 471 So.2d 147 (F,la. 3d DCA 1985». ". ' ' "An officer must be able to articulate specific facts showiilg an immip.~nt b~each of th'e pea~e. or threat to pubri~ safe~:y." Williams v. State, 674 So.2d 885 (Fla. 2nd DCA 1996). All elements of the misdemeanor offense of loitering and prowling have to occur in the presence of the arresting ~fficer fo~ the arrest t() constitute a legal arrest (G.E. C. v. State,' 586 So.2d 1338 (Fla. 5th DCA 1991); Springfield v. State, 481 So.2d 975 (Fla. 4th DCA 1986». In one case, an arrestee's conduct consisting of riding a bicycle in the early: after!loon on a public road while carrying a bag, although personally observed by the police officer., 'could not be con~idered to have satisfied the elements required to establish probable cau~e to arres.t for loitering andrprowling as defined by F.S (Carter,v. State, 516 So.2d 312 (Fla. 3d DCA 1987». However: where a defendant was wheeling a lawnmower through a residential rieighborhooq. late at night; the officer was, justified in stopping th~ defendant for investigatory purposes. Although the defendant claimed that he had ju~t fip.-. ished a mowing job, the mower was cold to the touch and clean of grass. The mower subsequently proved to have been stolen by defendant. The investigatory stop and arrest were upheld as being reasonable under the totality of circumstances (State v. Williams, 627 So':2d 97 (3d DCA 1993». Where defendant was standing, smoking and talking to another man in the rear corner of a bar parking lot at 11:30 p.m., it was held that. there was insufficient reasonabl.e cause for the stop, and evidence of the.cocaine and marijuana found in defendant's pos'session was suppressed (Barna v. State,,636 So.2d 571 (Fla. 4th DCA 1994».., When an officer saw' defendant standing in the hedges between. two rooming houses,. in th'e dark around 2:15 a.m., and knew from prior contacts with defendant that he did not live in either rooming house, the officer had reasonable suspicion to believe defendant was loitering and prowling. "Lurking in the dark by residences in the wee hours of the morning is unusual for law-abiding persons."'(battle v. State, 868 So.2d 587 (Fla. 4th DCA 2004». '. \ - In Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Co., 542 U.s.; 177 (2004), the U.s. Supreme Court upheld a Nevada law, which the; Court compared to F.s , making it unlawful for a suspect to f.efuse to disclose his or her identity in the course of a valid Terry stop. 4. JUSTIFIABLE USE OF FORCE Use ' of Force : in Making ' 'J an Arrest (F.S ) A.law enforcement officer, or any person whom he orshe has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The law enforcement officer is justified in the use of any force: (1) which he or she reasonably believes to be necessary to defend'hi'mself or herself or another from bodily harm while making the arrest; (2) when necessarily committed in retaking felons who have escaped; or ' (3) " when'necessarily committed in arresting felons fleeing from justice.,'". However, this subsection shall not Iconstitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and:., '- (a), The officer reasonably believes that the fleeing felon poses a threat of death 6r i serious P~ysi\cal harm to the officer or others; or -', r (b) The officer reas01iabjy believes tl].at the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person. '. <, " Also see GraHam v. Conner, 490 U.S. 386 (1989) where the U.S. Supreme Court applies the' reasonableness standard in determining whether 'excessive force is used::),. 'In soine situations,. the use of deadly force is reasonable within the meaning of the Fourth Amendment. Dea'd~y force does not mean force that necessarily results "in the death of the suspect, but rather a level of force that is reasonably likely to cause death or serious bodily injury; The V.S. Supreme Court has described the circumstances under which the use of deadly force may'be reasonable for purposes of Fourth Amendment analysis, a'nd therefore permissible. In Tennessee v. Garner, 471 VB: 1 (1985), the Court stated "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using'deadly force." Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the "infliction or threatened infliction of. serious physicalai'arm," the use of deadly force is permissible. If the officer does not have probable cause fo believe the above, reasonable, non-deadly force must be used to effect' the arrest.
3 LG-4 LG 5 See also Scott v. Harris, 550 U.S. 372 (2007), where the U.S Supreme Court held that actions undertaken by police to terminate a dangerous high-speed car chase that threatens the liv.es of innocent by-standers-such as bumping the fleeing vehicle-do not subject officers to civil or' criminal liability, even when such actions place the fleeing motorist at risk of death or serious bodily injury Use of Forc~ -in Resisting - an Arrest (F.S ) A person is not justified in the use of force to resist an arrest by a,law',enforcement officer who is known or reasonably appears tobe a'law enforcement officer. However, the law enforcement officer is not justified in the use of force if the arrest is unlawful and known to the officer as being unlawful-. Use of Force in a Terry Stop A Florida Court has ruled that law enforcement officers may use drawn weapons in a Terry.8top (Terry v. Ohio, 392 U.S. 1 (1968» when they reasonably believe that the us,e of weapons is necessary to protect the officers or prevent a suspect's ability to flee. State v. Hendrix, 865 So.2d 531 (Fla. 2d DCA 2003), review denied, 879 So.2d 621 (Fla. 2004)., Use of Force in Defense of Person (F.S. 7't6~012) A person is justified in 'the use of force, except <:lead~y force (that force which is likely'to cause death or great bodily harm including the firing of a firearm (F » ', against another, when and to the extent that he or she reasonably believes that such conduct i~ necessary to defend himself, herself, 'or another against such other-'s imminent use of unlawful force. The use of deadly force is justified if such 'force is reasonably believed to be necessary to prevent imminent death or grea~ bodily harm. i A person usirig defensive deadly force is presumed to have a reasonable fear of imminent de lth of great bodily harm if: (i) the person against whom force is used was unlawfully and forcefully entering' a dwelling, residence, or occupied vehicle, or was removing another person from the same against their will, and (ii) the, person using deadly force knew or had, reason to believe an unlawful and forcible entry or unlawful and forcible act was occurring. This presumption does not apply if: (i) the person against whom force was used had,: a lawful right to be inthe residence or vehicle, and there was no injunction or court order against him or her; (ii) the p,erson being r,emoved was a child, grljlndchild, or otherwise in the lawful custody of the person agaii),st whom force was U:sed; (iii) the person using deadly force was engaged in an unlawful act; or (iv) the person against who deadly force was used was. a law enforc~ment officer e,ngaged ip. the performance of official duties, and the,officer identified himself or herself or the person using force should have recognized him or her as an officer. A person who is not engaged in illegal aetivity and,wpo is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to use deadly force if the person reasonably believes this necessary to prevent death or great bodily harm to any person or the commission of a forcible felony,. A person who unlawfully and forcibly enters or attempts to enter a dwelling, residence, or vehicle is presumed to. do so with the intent to commit an unlawful act involving force or violence. F.S Pursuant to F.S , a law enforcement agency may use standard procedures to investigate use of force, but may not make an arrest unless there is probable cause to believe force was used 'unlawfully. 5. ARREST BY SURETY (BAiL BOND AGENTS), UI).der F.S a surety may arrest a defendant before' a' forfeiture of the bond for the purpose of surrendering him or her. A surety'may be a bail bond agent or runner or anyone who has put up the' security for the bail bond. The surety may authorize a peace offic.er to make the arrest by endorsing the authorizatiori on a certified copy 'of the bond. Although tliis arrest by a peace ofticer is not for a felony or a misdemeanor committed in tlie peace officer's presence, this is a case where a peace officer may make a warrantless arrest. Under F.S: a principal may be arrested by his surety withi,n 2 years from' the date of forfeiture of the bond. This arrest is for the purpose of surrendering the principal to the official in"whose custody the principal was at the time the bail was taken, or in 'whose custody he or she would have heen placed had he or she been committed. It would' appear that the surety could authorize a peace officer to make the arrest in this instance as indicated in F.S by endorsing the authorization on a certified copy of the bond. A person 'may not act in the capacity of a bail bond agent or runner or perform any of the functions, duties, or powers prescribed for bail bond agents or runners under Chapter 648 of the 'Florida Statutes unless that p,ers6n is qualified, licensed and appointed as provided in Chapter 648.., 6. CONSENSUAL ENCOUNTERS, REA SONABLE SUSPICIONS AND PROBABLE CAUSE In General!, There are three levels of contact between law enforcement officers and citizens; These are' (1) Consensual Encounfers (Smalls v. State, 858 So.2d 1244 (Fla. 5th DCA 2003»; (2) Reasonable Suspicions; and (3) Probable Cause. If an officer understands the limits of each type of encounter he or she can be more effective when the officer is conducting criminal investigations.,to.<; Consensual Encounters, 'A consensual encounter is a' mere contact and involyes no coercion, no detention and the~efore no arrest or seizure (i.e., the citizen has consented to the encounter). "Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, asking that person ifhe or she is willing to answer some questions, putting questions to him or her if the person is willing to listen, or offering in evidence in a criminal prosecution such person's voluntary answers to such questions" (Florida v. Royer" 460 U.S. 491 (1983». ' The objective test in a consensual 'encounter is whether a reasonable person would think he or she were free to go. The following are suggestions~ to establish a consensual encounter: Ask the citizen: ', "May I talk to you?", "Can I have a minute of your time?" "Do you mind if I search you for drugs?" "Would-.you mind showing me what's in your hand?",,i, "May I look in your purse/luggage?" Or, simply walk up:' to a citizen in a public place and start a conversation.,:'." The courts will probably rule that what the officer thought was a consensu~l encounter was in,jact a dete,ntion if any of the following occurs:, ' (1), The officer displays a weapon;., (2). The office:r uses a '}:larsh, accusatorial ton~ of voice; (3), The officer orders the citizen to do something, i.e., stop, open your",hands,. don't move, stay right there or co:rp.e oyer here; J ' (4). The officer blocks an individual's path with a police vehicle or.officer(s);,'n (5)' The ~nq.~vidual is ~old 4e or sj1e)s a suspect; (6) The, officer physically touches the ip.dividu- " al;,' ',' ;,' "', } (7) The'individual's property (driver's license, air,lij?e ticket or other per~onal property' be" longing to the person) is. r~tained. In State v. R.H., 900 So.2d 689 (Fla. 4th DCA 2005;; two uniformed officers approached RH. at around 1:00 a.m. and said, "Hey, how you doing? What's your name? Your date of birth?" One of the officers later testified, "at no point did we like surround him or tell him he was detained or anything like that. We were j ust talking to him." In addition, RH. never indicated thath'e wished to leave. This Was a consehsual encounter, so that RH. consent to a search of his' pockets was valid. - " A detention f6r: the purpose of' issuing' a trespass warning on behalf of a private owner, absent other circumstances giving rise to a :rea'sonable suspicion of other criminal activity, is a consensual encounter: This is because a police'officer,,under'the' trespass statute; may issue a trespass warning for unauthorized. entrance into a structure, but' does not have the'1egal authority to conduct an investigatory-stop or arrest for tr'espass unless the owner or his agent first warned the potential trespasser: Gestewitz v. State, 34 So.3d 832 (Fla. 4th DCA 2010). Knowingly and willfully providing, false information to a law enforcejpent officer conducting a missing persons or: felony criminal investigation with intent to mislead -the officer or impede the investigation is a misdemeanor of the first degree. F.8. 83, Encounter v. Arrest or "Seizure~~, In U.S. v. Mendenhall, 446 U.S. 544 (1980), the Court held "a person is seized only when his freedom of movement is restrained." In this case, the court ruled that a consensual encounter:>occurred when: plainc,1ot,hes officers approache~ the defendant in an airport concourse, identified themselves as officers; displayed no weapons, requested 'to see identification and promptly returned the identification. The Supreme Co~rt in California v. Hodari D., 499 U.S. 621 (1991), held that an individual is "seized" either, when the police restrain the individual through,the use of phy!?fcal force or when the,police make a show of authority' or force to which, ~he.indiy;idual acquiesces or' submits. Florida courts have held that "... a seizure occurs only w~en by means of physical force or show of authority; one's freedom of movement has been restrained and when in light of all the circumstances, it may be 'said that a reasonable person 'would have believed that he or she was not free to leave." (J. C. W. v. State, 545 So.2q 306 (Fla. 1st DQA), rf!h'g d.enied, review denied, 553 So.2d 1165 (Fl~. 1989); also see,tl!rner v. State, 674 So.2d 896 (Fla. 5th DCA 1996».. In Florida v. Royer, 460' U.S. 491 (1983) the.courts stated "when the detectives identified themselves as narcotics agents, told respondent he was suspected of transporting narcotics and asked him to accomp'any them to the police room, while retaining his airline ticket and driver's license and without indicating in any way that he was frely to depart, the re.spondent was effec;tively seized for purposes' of the,fourth Amendment.:' What had started out as. ~,eorisens'ual inquiry esc:;llaled into a'n investigatory procedure when the police re~ained defendant's property. By retaining the defendant's :property, police made, the defendant not free to leave.,., Reaq.ing a persc!n the Mirarl:.da ~ ~ighjs. does not automat~cally transform a consensual encounter into a seizure. However, because the reading ot the"warning ~ight add to the coercive nat~lre of an encou~ter under at least some circumstances', that is a factor to be considered in evaluating the totality of circumstances ~ur;rounding a stop. Caldwell v. State, 2010 Fla. ~EXIS 1115 (Fla. 2010).. Activation of police lights is one i!llp-rr~apt factor to be considered in a totality-based analysis of whether a seizure under the Fourth Amendment had occurred. G.M. v. State, 19 So.3d, 973 (Fla. 2009). In Young v. State, 803' So.2d 880 (Fla. 5th DCA 2002), defendant V\!as seized when an officer pulled behind him, blocking his driveway's exit, and activa,ted his patrol car's em~r'gency lights. Similady, in. Brooks v. Sta~e, 74q So.2d 1113 (Fla. 1st DCA 1999), when an officer pulled behind defendant's vehicle, which had pulled off the road to change drivers, an'd activated his-lights, there was a seizure, even if the lights were only a safety precaution. In Errickson v. ' State, 8.55 So.2d 700 (Fla. 4th DCA 2003), defendant was seiz~e?d when the officer a,ctivated his overhead lights and put his spotlight on defendant, to see ifhe was armed and to disorient him.
4 LG-6 LG-7 However, in Hrezo, supra, the Court emphasized that an officer's use of a s'potlight alone is not the same as the use of emergency lights. But see State v. Christman, 838 So.2d 1189 (Fla. 2d DCA 2003), where there was no seizure whem an officer puued up perpepdicular to the rear of defendant's car while defendant was pumping gas and then called out to ask defendant about the nature of the unfamiliar tag on his car. The positioning of the officer's car did not prevent" the defendant from leaving the scene, and his question about the tag and request for defendant's license were within the scope of a consensual encounter. In Davis' v. State, 946 So.2d 575 (Fia. 1st DCA 2006), 'defendant was seized when an armed, uniformed deputy ordered him -to exit his vehicle, then told him to place his hands on the roof of the vehicle.. In Wooden v. State, 724 'So.2d 658 (Fla. 2d DCA 1999), defendant was seized when officers ordered hini to lie on the ground so they could check him for weapons'. " In Armstrong v. State, 880 So.2d 1283 (Fla. 2d DCA 2004), defendant was seiz'ed when an officer demanded that defendant open his ~and ~,, In 'Williams v. State, 874 So.2d 45 (Fla. 4th DCA 2004), defendant was seized when, as he sat on an old sofa in a vacant lot around 8:00 p.m., an officer approached with 1).is hand on his weapon, shined a flashlight in defendant's face, and ordered him to stand. In State v. Newton, 737 So.2d 1252 (Fla. 5th DCA 1999), defendant was seized when an officer grabbed him from'behind by his collar, held a flashlight to his face, and 'ordered him to open his mouth. But see State 'u. Poole, 730 So.2d 340 (3d'DCA 1999), where there was no seizure when two officers (one in uniform, one plain-clo'thed) walked up to d~fendant, who was' sitting on 'a crate against a wall on a street corner at '1:10 in the afternoon, identifi~d themselves, and asked if she had any narcotics. The officers di4 not display their weapons, and their language and actions in no way restricted defendant's ability to leave. A consensual encounter is transformed into a detention if a pat-down search is conducted. Caldwell v. State', 985 So. 2d 602 (Fla. 2nd DCA 2008). In Raysor u. State, 795 So.2d"1071 (Fla. 4th DCA 2001), the Fourth District Court of Appeals held that that the issuance of the Miranda warning by an officer transforms an otherwise consensual encounter into an investigatory stop. However, in Caldwell v. State, supra, the Second District Court of Appeals disagr,eed, finding that giving the Miranda warning alone was not sufficient to transform a consensual e'ncounter into a seizure; when the warning is followed by a clarifying statement to the effect 'that the person being questioned is not under arrest. The Florida Supreme Court has not yet addressed this apparent split in authority between the two appellate courts., Often an officer will approach a person in a public place (i.e., airport, bus station,' train, plane, or bus, etc.). The officer needs no reasonable suspicion to ask questions or ask for' a person's identification, as long as a reasonable person would understand that he or she could refuse to cooperate. Florida v. Bostick, 501 U.S. 429 (1991). For example, in U.S. v. Drayton, 536 U.S. 194 (2002), defendant:was not seized when officers boarded a bus and began questioning the passengers, even after an officer asked consent to search defendant's bag. Although the officers displayed their badges, they did not brandish weapons or make intimidating moves. They gave the passengers no reason to believe that they were required to answer the officers' questions and left the aisle free so that passengers could exit the bus. Only one officer did the questioning, and he spoke in a polite, quiet (not authoritative) voice. "Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter." NOTE: It is important for the law enforcement officer to remember that in a consensual encounter the officer does not have to give the citizen Miranda warnings. Once an arrest is made or there is a detention equivalent to arrest, the person must be advised of his or her Miranda rights if the officer plans on q~estioning the person in custody (see below). Reasonable Suspicion The next higher level of contact a law enforcement officer may have with a citizen is a reasonable, investigatory stop, i.e., Terry Stop. Probable Cause is a higher level of contact than Reasonable Suspicion. Factors to weigh ' in determining if reasonable suspicion exists include the following: the time of day or night; the day of the week; the location; the appearance of the suspect, the appeara'iice and operation of any vehicle involved; and anything incongruous or unusual in the situatibnas interpreted in light of the officer's knowledge': Hernandez v. State, 784 So.2d 1124 (Fla. 3d DCA 1999). It is important to remeinber that an officer's training' and experience can be taken into account in determining whether reasonable suspicion exists in a given situation. U.S. v. Arviza, 534 U.S. 266 (2001)., Probable Cause has to be distinguished from Reasonable Suspic~on. In order to make an investigatory stop of a suspect, the law enforcement officer need not have probable cause to believe that a crime has been committ.ed by the suspect. All that is required is a reasonable suspicion by the law enforcement officer. Thus, probable callse requires a higher standard than a suspicion" What represents a,reasonable suspicion to make an investigatory stop depends upon the facts and circumstances, of each case., In J.E. v. State, 73~ So.2d 788 (Fla. 5th DCA1999), the District Qourt of Appeal of Florida held that the officers had reasonable suspicion n~cessary to justify an investigatory stop. ',- The facts of the case are as follows: The officer. observed defendant's car parked in the woods after dark (11:22 p.m.) near a boat ramp and a car park. The car park was open only to boaters, yet defendant's car did not have a trailer or boat attached. In addition, the officer knew this area was a frequent site for drug users to smoke marijuana or crack cocaine, and the neighborhood had been the scene of a number of burglaries. The officer had reasonable suspicion for a stop.. A bank employee called 911 to report that a sixfoot tall black man had just attempted to cash a forged check; the man was still in the bank at the time of the call. An officer arrived five minutes later and. saw a Chevy Blazer backed into a parking space in front of the bank's doors. The Blazer's driver,(defendant) was a black male in "the six-foot range." Upon seeing the officer, defendant drove off hurriedly. The parking lot was "fairly empty"; the officer saw no one else and no other cars leaving at that time. The officer had reasonable suspicion to stop defendant. State v. Malone, 729 So.2d 1008 (Fla. 5th DCA 1999). Cases which have held that the officer had a reasonable suspicion for an investigatory stop are as follows: In State v. Wimbush, 668 So.2d 280 (Fla. 2d DCA 1996), an officer's observation of, a white streak under the suspect's nose along with the officer's experience in drug investigations and the officer's opinion that the white streak was cocaine was sufficient to warrant a Terry Stop. In State v. Chang, 668 So.2d '207 (Fla. 1st DCA 1996), officers approached persons at a crack house. They observed the suspect discard' an envelope. They asked for identification andconse'nt to search. The suspect consented and the officers found a weapon. The Court'held this to be a lawful encounter and the search was valid. In State v. Crumpton, 676 So.2d 987 (Fla. 2d. DCA 1996), officers asked a: crowd to disperse. They observed the suspect place som~thing in his pants. 'J;qe officer$ asked what the suspect placed' in his pants and the suspect answered "cocaine." The Court held this to be a consensual encounter. In Hernandez v. State, supra, an officer responded to a 3:00 a.m. report of suspicious activity in the p'arking lot of an apartment complex. He saw a van in a parking space with another van backed up to it; the rear doors of both vans were open. The officer' could reasonably suspect that the parked van' was being burglarized, and therefore was justified in conducting an investigatory stop. Where a law enforcement officer stopped a suspect while he was wheeling a lawn-mower,through a residential neighborhood at about 11:00 p.m., the lawn mower was cold to the touch, and-the suspect lied to the officer, the Court in State v. Williams, 627 So.2d 97 (Fla. 3d DCA 1993) held that the investigatory stop was justified because the officer had a i'easonablesuspicion that the suspect either committed, was committing, or was about to commit a criminal offense. In State v. Abraham, 625 So.2d 9.86, (Fla. 3d DCA 1993), review denied, 639 So.2d 975 (Fla. 1994)" the Court held that the officer had a reasonable suspiciqn to stop the suspect where the officer observed the suspect in a downtown shopping section late at night running with large shopping bags. \ In State v. Black, 617 So.2d 777 (Fla. 3d DCA 1993), the Court held that the officer had a reasonable suspicion to stop the suspect when he was pushing a shopping cart containi,ng six rolls of new roofing paper along a street at 6:50 a.m. In State v. Jenkins, 566 So.2d 926 (Fla. 2d DCA 1990), the Court held that the officer had a reasonable suspicion to' stop the suspect when he was riding a bicycle in the early morning hours with a box overflowing with goods'. ' >, In State p. K. V.., 821 So.2d 1127 (4th DCA 2002), reh'g denied, an officer had reasonable suspicion to stop a vehicle, following a tip from a guard,at an apartment complex security station that she had smelled marijuana coming from K.V.'s car. In Blice v. State, 825 So.2d 447 (Fla. 5th DCA 2002), reh'g denied, officers saw a car parked in an improper area outside a closed, business at 1:30 a.m. As the officers approa.ched the car, they saw the butt of a gun inside it and partially concealed by clothing. The officers had reasonable suspicion to detain defendant by asking him to step :out of the car and asking him why he was in the area. -, Ip,.$tate v. Davis, 849 So.2d 398 (Fla. 4th DCA 2003), a BOLO was broadcast regarding a bank robbery committed by two black or Hispanic men, both in hoo(led sweatshirts, early twepties and around five-foot-ninejn height, with thin builds. Four to five minutes after the BOLO, an officer saw two thin black males of about the same age and height as the robbers, wearing hooded sweatshirts, and sitting in a car,at an apartment complex about a block away from the bank. Both appeared nervou.s and were, sweating profu,sely, even though 'it was only '10 0u.tside. The officer had reasonable,suspicion for a stop. " In U.S. v. Smith, 201 F.2d 1317 (11th Cir. 2000), a DEA agent and a Border,Patrol agent were conducting narcotics-interdiction surveillance at a Jackso:p.ville bus station. The agents noticed defendant's co-indictee as he. constantly changed seats, walked around the terminal and scanned every person who passed him. Mter about 40 minutes, he met with defendant, and the two had a brief, whispered conversation, then turned and walked in opposite directions. Defendant also walked around, in and out of the terminal, and switched seats. As hoarding for defendant's bus was announced, he grabbed two expensive-looking, hard-sided suitcases which had been lying unattended in the terminal. On his way to,the gate, he slid one to his co-indictee, and both men took one bag as they boarded the bus. Mter the men were on board, the agents looked at the suitcases in the cargo bay and learned they had originate.d in Miami, a, source city for narcotics. The agents then had reasonable suspicion to detain both men for questioning. In Illinois v. Wardlow, 528 U.S. 119 (2000), two uniformed officers were 'in the last car of a four-car police caravan that converged on an area known for heavy narcotics trafficking, in order to investigate,drug transactions. The officers observed defendant, who was standing next to a building holding an opaque bag, look at the police caravan and then run in the opposite direction. Given the character of the area and defendant's headlong flight ("the consummate,act of evasion"), the officers had reasonable suspicion to stop him. Also see State v. Gandy, 766 So;2d 1234 (Fla. 1st DCA 2000); Copeland v. State, 756 So.2d 180 (Fla. 2d DCA 2000).