Cowart v. State, 92-03404
| Decision Date | 29 April 1994 |
| Docket Number | No. 92-03404,92-03404 |
| Citation | 635 So.2d 1063 |
| Parties | 19 Fla. L. Weekly D1019 Amos Lewis COWART, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Robert D. Rosen, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Helene S. Parnes, Asst. Atty. Gen., Tampa, for appellee.
Amos Lewis Cowart appeals from his conviction after pleading nolo contendere to one count of possession of cocaine and reserving the right to challenge the denial of his motion to suppress. We have determined that the cocaine was seized in the course of an unlawful detention and we reverse.
On January 11, 1992, at approximately 4:40 in the afternoon, Officers Heiman and Cumbess of the Winter Haven Police Department observed Cowart appear from behind an Exxon gas station, an area known to abound in illicit drug activity. When Cowart, who was riding a bicycle, noticed the officers he began pedaling quickly in the opposite direction. After following Cowart in their cruiser for five blocks, the officers activated their emergency lights and pulled up to him. Heiman addressed Cowart directly, saying, "hold up, can we talk to you for a second?" Cowart stopped his bike and waited for them to approach. The officers parked the cruiser in Cowart's path, got out, identified themselves, and asked "if he believed in our war on drugs out here, if we were trying to do our job and if he had any objections to a quick pat-down." Nodding and raising his hands in the air, Cowart yielded to the request. As Cumbess began to pat him down, Cowart attempted to reach inside his pants pocket. Cumbess ordered him to stop, then stuck his own hand inside Cowart's pocket and retrieved one rock of cocaine.
The record will not support the trial court's conclusion that the encounter was consensual. An encounter of this kind, as distinguished from a seizure, is impressed with the notion that a reasonable person to whom questions are put by the police is free to disregard the questions and leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); State v. Wilson, 566 So.2d 585 (Fla. 2d DCA 1990). It is manifest from this record that a reasonable person in Cowart's circumstance, rather than leaving the scene, would most likely have submitted to the officers' show of authority. Cowart was confronted with a police car parked in his path and officers positioned in front of and behind him while he remained seated on his bike. In our judgment the moment Cumbess requested permission to conduct a pat down, the so-called "citizen interview" evolved into a detention, albeit of short duration. See Wilson. It is significant that Cumbess conceded Cowart would have had to back away from the officers and...
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