Jacobson v. State

• Citation: 10 Fla. L. Weekly 542,476 So.2d 1282
• Decision Date: 03 October 1985
• Docket Number: No. 60592,60592
• Parties: 10 Fla. L. Weekly 542 Alan Max JACOBSON, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

Page 1282

476 So.2d 1282

10 Fla. L. Weekly 542

Alan Max JACOBSON, Petitioner, v. STATE of Florida, Respondent.

No. 60592.

Supreme Court of Florida.

Oct. 3, 1985.

Daniel W. Levin and Charles H. Snowden, Miami, for petitioner.

Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., Miami, for respondent.

EHRLICH, Justice.

This interlocutory appeal of an order granting a motion to suppress comes before the Court from the Third District Court of Appeal. State v. Jacobson, 398 So.2d 857 (Fla. 3d DCA 1981). We take jurisdiction because the district court's decision expressly and directly conflicts with Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976), cert. denied, 347 So.2d 432 (Fla.1977). Art. V, § 3(b)(3), Fla. Const.

Defendant Jacobson and a traveling companion, Baker, were observed by Detectives Johnson and Pearson at Miami International Airport in the early afternoon of July 31, 1979. The detectives were working a plainclothes narcotics detail, assigned to the airport by the Dade County Public Safety Department. The officers watched and listened as Jacobson and Baker inquired about a flight to Los Angeles. Because the two men showed many of the characteristics drug couriers often exhibit, the detectives decided to approach the two suspects. The detectives stopped the pair in a public concourse as they walked away from the ticket counter where they had learned of the missed flight. Johnson stood in front of Baker, Pearson stood close to Jacobson.

Pearson showed his badge to Jacobson and asked if they could talk. Jacobson assented and, on request, produced first his plane ticket and then his driver's license for Pearson's inspection. Pearson, finding no discrepancy between the names on the two documents, returned them. Jacobson had a Florida driver's license and told Pearson he was from Florida. However, Johnson then asked Jacobson if he was going to Los Angeles to visit friends and if he was from that area. Jacobson answered affirmatively. The detectives testified that this ambiguity in residency, and Jacobson's growing nervousness, increased their suspicions.

At this point, Pearson told Jacobson he was a narcotics officer and asked if he could search Jacobson's tote bag, the only luggage he was carrying. He also told Jacobson he did not have to consent to the search. Jacobson said "go ahead and search my fucking bag." Pearson asked if he would like to move to a less crowded place, Jacobson agreed and moved the bag several yards, out of the main flow of passenger traffic. Jacobson unzipped the bag and he and Pearson knelt as the detective Approximately the same procedure was undertaken by Detective Johnson with Baker, now separated from Pearson and Jacobson by some distance. Johnson discovered what turned out to be bags of cocaine concealed on Baker's legs. As Baker was being handcuffed, Jacobson looked up and saw his traveling companion's predicament. Pearson testified that a look of "sheer fright" came across Jacobson's face, and he stood and ran out of the concourse. Pearson pursued Jacobson, finally grabbing his belt and saying "hold it" when he caught up with Jacobson in an airport parking area. According to Pearson, Jacobson tried to break away but two uniformed officers immediately appeared and Jacobson stopped struggling. Pearson then told Jacobson he was under arrest and handcuffed him. Jacobson was returned to the concourse where Johnson and Baker had remained. Detective Johnson searched Jacobson and found packages of cocaine on his legs, hidden in the same manner as on Baker. The two were then taken to jail. Although Detective Pearson did not tell Jacobson what he was being arrested for at the scene, a charge of resisting arrest without violence was listed on the arrest report. § 843.02, Fla.Stat. (1979).

searched the bag. Pearson found no contraband in the bag.

In its suppression order, the trial court found that the initial stop was illegal, that neither Baker nor Jacobson had voluntarily consented to the searches which produced the cocaine, and that the evidence should be suppressed because it was the result of an illegal seizure and search. The state did not appeal the suppression order as to Baker, but did challenge in Jacobson's case. The district court found that, while the initial stop was illegal, Jacobson's flight and subsequent arrest broke the causal chain of events flowing from the illegal stop, and that the evidence discovered in the search pursuant to the arrest was validly obtained.

In Vollmer, a police officer stopped the defendant as he walked along a Lakeland street in the middle of the night.

There was no evidence of any criminal activity in this area of Lakeland on that morning. The officer had no reason to believe that the appellant had committed any crime. But, as the officer drove by, he noticed the appellant watching the patrol car. He then turned his car around to further observe the appellant, whereupon he stopped him and asked for his name. When the appellant replied that his name was "Bill Hollis," the officer inquired as to whether he had any identification. When appellant answered in the negative, the officer next asked whether appellant had a wallet. Appellant then replied "yes," and produced a wallet. As appellant opened the wallet the officer saw a Florida driver's license and asked to inspect it. Appellant gave it to the officer and upon inspection, the officer determined that the license bore the name "John Brian Vollmer." When Officer Alexander read that name aloud, appellant "took off running" and the officer gave chase on foot. When the officer caught appellant a struggle ensued. Appellant was arrested for resisting an officer with violence. A subsequent search of his person at the police station revealed LSD and cocaine.

337 So.2d at 1025.

The district court held that the defendant's behavior before the stop did not justify a stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or the Florida Stop and Frisk Law, section 901.151, Florida Statutes (1975). Because the initial stop was illegal, the court reasoned, the information gleaned from the illegal stop, i.e. the inconsistency between the defendant's verbal identification and the driver's license, "does not validate the policeman's actions." 337 So.2d at 1026. Because the officer was not engaged "in the execution of legal process or in the lawful execution of any legal duty," section 843.01, Florida Statutes (resisting officer with violence to his person), the arrest for resisting failed. The contraband seized was not discovered in a search pursuant to Vollmer conflicts with the instant case because, in the former case, an arrest for resisting after flight from a putatively illegal stop was held improper vis-a-vis a search incident to the arrest, while sub judice the arrest and search were held proper.

a legal arrest and therefore should have been suppressed.

However, we conclude that the stop in this case was at all times within the bounds of the law, that the arrest for resisting was lawful, and that the evidence discovered pursuant to that arrest was properly seized. We have jurisdiction because of the facial conflict between Vollmer and this case. Having jurisdiction, we have jurisdiction over all issues, Savoie v. State, 422 So.2d 308 (Fla.1982), and dispose of the case on a ground other than the conflict ground. Our decision moots the conflict issue, whether flight from an illegal stop breaks the claim of illegality, which remains undecided here.

THE STOP

The initial stop by the detectives was a consensual stop. Consent remained until Jacobson's flight, at which point Detective Pearson had sufficient grounds to detain Jacobson under Terry. In the process of attempting to detain the defendant, the defendant resisted and an arrest on that ground was proper. The search incident to lawful arrest therefore produced admissible evidence.

The United States Supreme Court has held that there is no "litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop." Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983). A consensual encounter occurs when a police officer approaches a citizen and interacts in a manner such that a reasonable person would believe he was free to terminate the encounter and leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Fourth amendment protections are not triggered.

While an officer, like any other citizen, is free to approach someone and engage him in conversation, there comes a point when the citizen approached is no longer free to decline to converse with the officer. This point, when fourth amendment protections are triggered, occurs when there is "a show of official authority such that 'a reasonable person would have believed he was not free to leave.' " Florida v. Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.)). In Royer, Justice Brennan suggests that "once an officer has identified himself and asked a traveller for identification and his airline ticket, the traveller has been 'seized' within the meaning of the Fourth Amendment." Royer, 460 U.S. at 511, 103 S.Ct. at 1331 (Brennan, J., concurring in result). The plurality held that such a situation alone would be insufficient to constitute a seizure, but did find that additional actions by police supported a finding of seizure. The officers retained the identification and ticket, asked the defendant to accompany them to a small room, and brought his luggage to the room to be searched. Royer was, as a practical matter, under arrest according to the plurality.

The facts in the case before us suggest that the actions by detectives Johnson and Pearson did not reach the level of a seizure during the initial stop, as far as Jacobson was...