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Florida’s “Stop and Frisk” Law: What Are Your Rights?

In our society, we, as citizens, are guaranteed the right to be free from unreasonable search and seizure from the government. This right to be free from unreasonable search and seizure, as defined in the Fourth Amendment of the United States Constitution, extends protection of that right to persons, as well as their homes, cars, etc. These are foundational rights that were affected to ensure that citizens felt safe at home, knowing that the government and its officials would be unable to enter the premises without consent from the homeowner unless the official has probable cause, the officer has a warrant based on probable cause signed by a magistrate, and/or there were exigent circumstances present.

Fourth Amendment Protections and “Stop and Frisk”

The protections guaranteed to our home and personal effects extends as well to our bodies. The Fourth Amendment provides that our bodies must not be searched or seized (also known as arrested or otherwise incarcerated); these searches and seizures are per se unreasonable. However, over the last decade, in the face of personal rights, the law and law enforcement have received more latitude to effect searches and seizures on people, especially where they believe the person is a threat to public safety or has committed a crime. This law, which outlines the parameters of searches and seizures of people out in public, is known as the “Stop and Frisk” legislation.

Right of Officers to Stop or Detain

According to Florida’s Stop and Frisk law, a law enforcement officer may temporarily detain or stop any person out in public if it reasonably appears that person is about to commit a crime, is in the middle of committing a crime, or has committed a crime. The detainment of this person is reasonable if the law enforcement official is using the detainment as a manner to determine the identity of the detainee and/or further investigate the circumstances that led the officer to believe a crime is/was committed in the first place. In other words, to be a reasonable stop, the officer can only investigate the circumstances that made the officer want to detain the person initially. For example, an officer who observes a person on the street using what appears to be drug paraphernalia may detain the person to determine his/her identity and/or further investigate if he/she is in fact using illegal substances. This situation would not provide permission for the officer to use the stop to investigate whether the person had robbed the local grocery store.

How Long is a “Temporary” Detainment?

The detainment itself should only be as long as reasonably necessary. There is no time referenced because this type of investigation may take only a couple of seconds or could take minutes. It is up to the officer’s best judgment as to what is reasonable, however, it is no longer a reasonable stop, if the officer prolongs the stop beyond what would be reasonable to investigate the circumstances.

Rights of Officers to Frisk and Seize

Once the officer has stopped the detainee, and has further investigated the situation, the officer must decide to release or further detain, also known as arrest or seize, the individual. To arrest or seize the person, he or she must have built into a few facts that rises to the level of probable cause to believe that person had, was in the process of, or was about to commit the crime.

The second part of the law, the right to frisk a detainee, is permitted only where an officer has probable cause to suspect that person is dangerously armed, and is a threat to the officer’s safety or another person. The officer may frisk the person, but only to the extent necessary to disclose that the person is unarmed. This means that an officer could not force a detainee to disrobe, but he/she may pat down the person so as to discover a hidden, dangerous weapon. If during the search, evidence is found that proves the commission of a crime, that evidence may be seized and included as evidence against the person at his/her criminal proceeding.

Experienced Criminal Defense Attorney in Fort Lauderdale

If you or a loved one has been involved in a “stop and frisk” which has led to an arrest, it is important that you speak with an experienced defense attorney like Kevin J. Kulik. Any evidence found pursuant to an unreasonable stop and frisk may potentially be found inadmissible and thrown out. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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