Retention of ID During a Consensual Encounter
By Brian Batterton
The Supreme Court of Florida recently decided an important case regarding consensual encounters. In Golphinv. Florida, two police officers were on patrol in an area of Daytona Beach that is known for prostitution and narcotics traffic. The police officers were specifically in that area to conduct field interviews with individuals in that area. The officers observed a group of approximately five males standing on a street corner and intended to speak with them. The officers parked their police vehicle on the opposite side of the street and walked across the street toward the males. As the officers approached, some of the males left the area; however, Golphin remained and never attempted to leave the area. One officer approached Golphin and requested his identification, which he voluntarily provided. This officer received Golphin’s ID, conducted an NCIC check for warrants, and retained the ID while waiting on the results of the warrant check. During this time, although the officer retained Golphin’s ID, the officer did not walk away with the ID. While they were awaiting the results of the warrant check, Golphin told the officer that he may have an open warrant for his arrest. Also during this time, a K-9 officer also arrived on the scene. Golphin was indeed correct as a warrant for his arrest was confirmed. A search incident to his arrest revealed illegal drugs and paraphernalia for which he was also charged.
Golphin argued that the arrest was the result of an unlawful seizure of his person, in that although the encounter was initially consensual, the officer transformed the encounter into a detention without reasonable suspicion by retaining his ID during the warrant check. The trial court refused to suppress the evidence and the Court of Appeals upheld the trial court. The case then went to the Supreme Court of Florida.
The Court, in this case, agreed that the encounter should be governed by the “totality of the circumstances” test used by the U.S. Supreme Court in Florida v. Bostick. 2 The Court then discussed three relevant rules established by the U.S. Supreme Court. First, “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 3 Second, police officers do not violate the Fourth Amendment’s prohibition against unreasonable seizures merely by approaching individuals on the street and asking questions, if they are willing to listen. 4 Third, the question of whether or not a person has been “seized” for Fourth Amendment purposes will be judged in accordance with the “reasonable person” standard. 5 The U.S. Supreme Court further stated:
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of threatening language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. 6
Additionally, the Supreme Court of Florida cited a case from the 11th Circuit Court of Appeals where an officer retained a pedestrian’s ID and asked for consent to search his vehicle which was parked in a parking lot. 7 The 11th Circuit found that De La Rosa, a pedestrian at his apartment complex at the time of the encounter, had not been seized by the retention of his ID during the consensual encounter and that he could have terminated the encounter without his ID by walking into his apartment. 8 It was noted that this is a fact specific determination and a person may not feel free to leave his ID with the police in every circumstance. For example, a person who is about to purchase a bus ticket and leave on a bus or enter a car to depart a location would not “reasonably” feel free to terminate an encounter without his ID. 9
The Supreme Court of Florida also cited a case where the manner in which the warrant check was performed was a relevant factor in determining whether the retention of a person’s ID during a consensual encounter transformed the encounter into a detention. In U.S. v. Analla, 10 the police approached a man, asked to speak with him and requested his driver’s license and registration (he was on a pay phone outside of his vehicle). 11 Upon receipt of the documents, one officer radioed an NCIC warrant check using his portable radio and retained the documents while waiting for the results. 12 This officer stood near Analla and his car and did not walk back to the patrol vehicle to conduct the warrant check. 13 The 4th Circuit Court of Appeals held that it was reasonable for the officer to retain the ID and registration for a short time while awaiting the dispatcher’s check of the documents. It was important in the courts analysis that the officer stood near Analla in a position where Analla could have requested the return of his documents so that he could leave. 14
Thus, the Florida Supreme Court held, in Golphin, that based upon the totality of the circumstances, Golphin’s encounter with the police was consensual and did not mature into a seizure simply because the officer retained his ID during a warrant check. 15 The relevant factors that the Court considered were as follows: the officers approached the group of males in a casual manner without sirens, lights, or weapons drawn and did not block the path of males (some actually departed the scene and were allowed to do so); one officer initially approached Golphin and requested ID; the officer spoke to Golphin in a casual and polite manner; Golphin was cooperative throughout the encounter; the evidence was obtained during a search incident to the arrest; Golphin was not driving or attempting to depart in a vehicle; he was not isolated or moved by the officers; no indication was communicated that Golphin was not free to go; and the officer conducting the warrant check remained in Golphin’s immediate vicinity and conversed with him during the check, thus Golphin was in a position to request the return of his ID. 16 The Court also noted that Golphin’s ID was not retained during a consent search; this factor would weigh heavily in determining that the encounter and resulting consent was not consensual. 17
In conclusion, the Court stated that they are not making a steadfast rule that all situations where ID is retained during a consensual encounter will be permissible. 18 This will be judged based upon the totality of the circumstances. The Court also noted that there are other jurisdictions that have held that retaining a person’s ID for the purpose of a warrant check during a consensual encounter constitutes a seizure of the person. 19 Therefore, if an officer is unsure as to how his particular jurisdiction would rule in a situation such as this, the officer should contact his department legal advisor or local prosecutor.