Police officers around the nation continue to misunderstand the Fourth Amendment and the concept of reasonable suspicion. This footage was submitted by Nick Failla, showing his arrest in Cocoa, Florida several years back. He just recently obtained the bodycam footage.

Many cops believe that they get to forcibly ID anyone they encounter as a part of their job. They are taught that its policy to do this for officer safety reasons. We see it over and over again. In this particular video, the female officer, who is a supervisor, explains repeatedly to Nick that, because she’s a police officer conducting an investigation, Florida law allows her to obtain the ID of anyone she encounters – whether or not a crime is even alleged. Nick disagrees with her and asks repeatedly for an explanation of what crime he was alleged to have committed. Let me see if I can clear this up.

Here’s Nick’s original video, along with his explanations.

This is a common issue and is the subject of one of my most popular Youtube videos – a case currently being litigated in federal court, involving the arrest of my client in a West Virginia Walmart. When police officers encounter pedestrians, they could trigger an investigatory detention, which requires reasonable suspicion, or they could just be engaged in a consensual encounter, which requires nothing. It’s just a conversation. 

Consensual encounters, i.e., a conversation, does not trigger the Fourth Amendment, and can be easily identified if the subject asks whether or not he’s free to leave. If the question isn’t asked, courts will look to the circumstances. Would a reasonable, regular person believe that he was NOT free to leave? Were emergency lights activated? Multiple police officers? Guns drawn? Put in handcuffs? Accused of criminal conduct? Told to show your hands? Told to get on the ground? Or was it just a conversation. 

The question is whether a reasonable person would feel free to terminate the encounter. If the person was involuntarily detained by the officer, that constitutes a seizure under the Fourth Amendment, no matter how brief the detention or how limited its purpose. 

If a detention occurs, the courts require the detaining officer to be able to articulate why a particular behavior is suspicious or logically demonstrate that the person’s behavior is indicative of some sinister criminal activity. It must be based on suspicion of illegal conduct. In other words, it cannot be based on suspicion of legal conduct, such as walking down a public sidewalk, or hanging out on top of your van with two women in a parking lot in front of a lake.

Here, there was clearly a detention. Therefore reasonable suspicion is required. Even in Florida, a police officer must have a particularized and objective basis for suspecting the person stopped of criminal activity.” United States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022) (en banc).