Davis v. State
| Decision Date | 18 January 1985 |
| Docket Number | No. 83-2615,83-2615 |
| Citation | 461 So.2d 1361,10 Fla. L. Weekly 208 |
| Parties | 10 Fla. L. Weekly 208 Nelson L. DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
Nelson L. Davis was charged with grand theft auto. The court denied his motion to suppress. A jury found Davis guilty as charged. On appeal, Davis argues that the trial court erred by denying his motion to suppress, his motion for mistrial, and when sentencing him.
On March 15, 1983, Det. Benjamin Holthusen of the St. Petersburg Police Department was on uniformed patrol in a downtown area of the city. The detective testified that he "checked" the area bars up to three times each evening, and he knew "just about everybody" in the bars by face or name. Holthusen was in one of these bars when he saw Davis, whom he did not recognize. As Davis was leaving the bar, Holthusen asked him for identification. Davis replied that he did not have any. Holthusen then walked back to his cruiser and began to drive off. He then saw Davis and two companions get into a car in front of the bar. Davis got behind the wheel and drove off. At this point, Holthusen became suspicious that Davis was driving without a license because Davis had just stated that he didn't have any identification. The detective stopped Davis' car and asked for his driver's license and vehicle registration. Davis was unable to produce either item or any identification. At that point, Holthusen took Davis back to the cruiser with the intention of arresting him for driving without a license. After running several checks on the car which Davis had been driving, Holthusen found that the vehicle had been stolen a few weeks earlier. Davis was arrested for grand theft auto.
During the hearing on the motion to suppress, Holthusen testified that the reason he initially approached Davis was because he did not know him. Holthusen admitted that, at that time, he did not suspect Davis of being involved in any criminal activity. Holthusen further testified that if Davis had not said he did not have identification, he would not have stopped Davis' car and subsequently found out it was stolen.
Appellant argues that the detective's initial questioning of him for identification was not based on any suspicion of criminal activity but was purely arbitrary. In support of this argument, he cites cases in which the Florida Supreme Court has held that a policeman may not stop and question a person on a bare suspicion of illegal activity. Mullins v. State, 366 So.2d 1162 (Fla.1978), on remand, 371 So.2d 1113 (Fla. 3d DCA), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979) (); Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983) ().
In Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984), the Florida Supreme Court cited Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for the proposition that nothing in the constitution prevents a police officer from addressing questions to anyone on the street. Under such circumstances, the person may refuse to cooperate and go on his way. The court then concluded that there was nothing in the record that indicated Lightbourne was not free to express an alternative to go on his way. The court explained that the police need questioning as a tool for effective enforcement of the criminal laws.
In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Supreme Court wrote "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street ... [and] asking him if he is willing to answer some questions...." 103 S.Ct. at 1324.
In a more recent opinion, I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), on remand, 736 F.2d 1340 (9th Cir.1984), the court ruled that a consensual encounter between a police officer and a citizen can be transformed into a Fourth Amendment seizure if, in view of all the surrounding circumstances, a reasonable person believes he is not free to leave. The court wrote that Royer implies that a request for identification by police does not constitute a Fourth Amendment seizure. 104 S.Ct. at 1762. The court further wrote that even though most citizens will respond to a police request without being told they are free not to respond, this does not eliminate the consensual nature of the response. A Fourth Amendment detention results only when the circumstances of the...
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Golphin v. State
...McLane v. Rose, 537 So.2d 652, 654 (Fla. 2d DCA 1989); State v. Lamb, 484 So.2d 1368, 1369 (Fla. 2d DCA 1986); and Davis v. State, 461 So.2d 1361, 1362-63 (Fla. 2d DCA 1985). 14. I dissented in Frierson but acknowledge that it controls in this 15. I agree with the majority's determination t......
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Golphin v. State
...v. Rose, 537 So. 2d 652, 654 (Fla. 2d DCA 1989); State v. Lamb, 484 So. 2d 1368, 1369 (Fla. 2d DCA 1986); and Davis v. State, 461 So. 2d 1361, 1362-63 (Fla. 2d DCA 1985). 14. I dissented in Frierson but acknowledge that it controls in this 15. I agree with the majority's determination that ......
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Sommer v. State
...as well as non-suspicious persons. It is the answers which may lead to the problem, not the questioning. See also Davis v. State, 461 So.2d 1361 (Fla. 2d DCA 1985). As to the second point we find a great deal more difficulty. Under the dictates of Miller v. State, 403 So.2d 1307 (Fla.1981) ......
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State v. Arnold
...Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). See also Sommer v. State, 465 So.2d 1339 (Fla.5th DCA 1985); Davis v. State, 461 So.2d 1361 (Fla.2d DCA 1985). Thus, a brief stop of an individual to determine that person's identity or maintain the status quo momentarily while obt......