In criminal cases, searches resulting from vehicle stops have been hotly litigated since the automobile became available to the public in mass. Since cars are mobile and not as private as your home, the Supreme Court has interpreted the constitution to give vehicle searches and seizures less protection.
For example, an officer can run the tag of a vehicle because there is an expectation that your tag can be read by anyone behind you. Of course, not every driver out there has the capability to look up your picture, address, driving history, license status and warrant information. But since the driver in the next vehicle can see if your tag is expired, read your tag and can presumably see the driver of the vehicle, then your expectation of privacy is deemed less and you are not as protected from searches in your passenger vehicle. Most people’s interaction with law enforcement begins at a traffic stop, or by the police arriving in a vehicle and activating their lights. Until 2009 I would have called this a seizure.
Imagine a scenario where a person is seated in their car in a park, an officer pulls up behind and activates their take down lights. Presumably, anyone who tried leaving that scenario would be met with a forced seizure. Indeed one of the officers involved stated he would have prevented anyone from leaving the scene and another stated he believed the subjects were not free to leave. The courts disagreed.
Somehow, the result of the police action depends on the person being detained and not the actions of the officers. Unfortunately that case entitled G.M. v. State decided by the Florida Supreme Court in 2009 stands for the proposition that the activation of lights does not actually mean a person is seized unless that person is aware of the lights.
Everyone I talked with about this case agreed with me except a particular government attorney and the judges she helped convince otherwise. Unfortunately, the Florida Supreme Court, whose opinion matters more than mine, disagreed with me and agreed with her. While the Court acknowledged it would be dangerous for them to advise that people could walk away from that scene, they still held that a juvenile was NOT seized. This is true even though the officer in that case testified that in his opinion, the detainees were seized and NOT free to leave. If you are not free to leave then you are seized.
Instead of a per se rule that lights equal seizure, the Court instructed that the trial courts must consider the totality of the circumstances, not what the police officer was thinking but somehow what the defendant was thinking. Essentially for a valid stop and then search the law “requires that the display of police authority be the cause of or produce the submission before it can be said that a seizure has occurred”. A person must submit to be seized. Thus a person who runs and throws drugs is said to abandon the drugs and is not seized for purposes of fourth amendment analysis.
It sounds as if though, cops are not guilty of violating the constitution if they are not found out. The thinking is that a fish is not caught just because you are fishing and the fish is caught, so long as the fish does not know it. Do not try this logic in other scenarios because it flat does not work for people, this logic only works for the government. The issue of whether a seizure has happened is important because the fourth amendment protects from unreasonable searches and seizures, and not pushy sales people. Since the GM case, the State will argue that lights alone do not indicate a seizure and the officer was seeking to have a consensual encounter with the detainee.
In a more recent case the trial court found that an officer parked “catty corner” to the driver’s vehicle, activated the lights and shined a spotlight on the driver, this was NOT a seizure. Fortunately the appellate court disagreed and reversed stating that no reasonable person would have felt free to drive away after an officer activated his emergency lights and used a spotlight to illuminate the person’s parked vehicle. Smith v. State (4th DCA 2012).
Now a trial court has to attempt to determine what the person was thinking. It is almost as if though the legality of the seizure and resulting search depends upon the subjective actual awareness or knowledge of the arrestee. Fortunately there is a concurring opinion in the GM case that attempts to make clear that the burden of proof is on the State. If there is no warrant then the State has the burden to show that a stop, search or seizure is valid. Therefore, the State should also have the burden of showing evidence of what a person was thinking. In any criminal case which began as a traffic stop or other warrantless search or seizure click, call or fill out the form to schedule a session with a lawyer.
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