Errickson v. State, 4D02-2754.

• Citation: 855 So.2d 700
• Decision Date: 08 October 2003
• Docket Number: No. 4D02-2754.,4D02-2754.
• Parties: Eric Charles ERRICKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

855 So.2d 700

Eric Charles ERRICKSON, Appellant, v. STATE of Florida, Appellee.

No. 4D02-2754.

District Court of Appeal of Florida, Fourth District.

October 8, 2003.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

This appeal arises from the entry of a final order adjudicating the appellant guilty of trafficking in hydrocodone, and sentencing him to 180 months incarceration. For the reasons explained in detail below, we find the trial court erred in denying the motion to suppress and reverse Errickson's conviction.

On August 18, 2001, Deputy Russell Tucker was working the midnight shift in St. Lucie County, Florida. Around 4:00 a.m. he noticed Eric Errickson sitting on the curb next to a bicycle and a pay phone in front of a closed Shell Gas Station. The Shell station had been burglarized numerous times. Tucker knew that most burglaries of convenience stores take place between 2 and 4 a.m. Tucker called 911 and told them he was stopping to investigate a suspicious person. Tucker put his overhead lights on, put his spotlight on, and approached Errickson. Tucker explained that the light helps him see if the person has any weapons and it also disorients the person so they cannot see Tucker exit the vehicle. Errickson made no attempt to leave.

When Tucker asked Errickson what he was doing, Errickson told him he was heading north on his bike from West Palm Beach and stopped for some water. The hose looked as if it had been turned on, the ground was wet. Errickson told Tucker he had no ID on him. Errickson told him his name, but spelled his last name differently than how it is actually spelled. Tucker then called to check if there were any outstanding warrants. He was advised that the name was listed as an alias and there was a possible warrant for a violation of probation in Palm Beach. At that time, Tucker put handcuffs on Errickson, told him there was a possible warrant, and put him in the back of the police car. When the warrant was confirmed, Errickson was arrested.

Deputy Waters arrived to assist Tucker. After placing Errickson under arrest, Waters conducted an inventory search of Errickson's property. She recovered a U.S. passport, Florida ID card, and a small prescription bottle with thirty-three hydrocodone pills. Errickson was charged by information with one count of giving a false name while arrested and one count of trafficking in hydrocodone. Errickson filed a motion to suppress alleging that the items taken were the result of an unlawful search and seizure. The trial court denied the motion finding that it was a consensual citizen encounter.

Errickson pled no contest to the charge of giving a false name and proceeded to trial on the trafficking charge. The jury found Errickson guilty of trafficking in hydrocodone as charged and he was sentenced to 180 months as the minimum mandatory sentence under section 893.135, Florida Statutes. This appeal timely follows. Errickson raises two issues on appeal. Because we agree with the first issue, we need not reach the second issue regarding the constitutionality of the sentencing statute.

Errickson initially contends the trial court erred in denying his motion to suppress. We agree. This court has clarified that "[a] reviewing court must accept the trial court's findings of fact in an order on a motion to suppress, so long as those findings are supported by the record; however, a suppression order that turns on an issue of law is reviewed by a de novo standard of review." Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001).

The Florida Supreme Court explained that there are three levels of police-citizen encounters in Popple v. State, 626 So.2d 185 (Fla.1993).

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. at 186.

In Popple, the court recognized there is no litmus-paper test for distinguishing a consensual encounter from a seizure. However the court clarified that a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity. Id. at 187-88. A citizen encounter becomes an investigatory stop once an officer shows authority in a manner that restrains the defendant's freedom of movement such that a reasonable person would feel compelled to comply. Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002).

Courts have routinely held that an officer's use of emergency lights "evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave." Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002); see also Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001)

; Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999).

The state argues that under the facts of this case the officer's use of overhead lights did not change the nature of the stop. The state points to Tucker's testimony that he put the lights on for his protection. Not only was this argument specifically rejected in Brooks, a closer reading of Tucker's testimony does not support this position. Tucker testified that he initially had his overhead lights on and then turned on his spotlight when he approached Errickson. Tucker testified that he stopped his vehicle with the overheads on and turned his spotlight on because it helped his defense. More specifically that the spotlight helped him to see if Errickson had any weapons and to disorient him a little.

In addition, when asked by defense counsel whether Errickson was free to leave, Tucker responded as follows: "Basically he's not free to leave till I made contact with him and asked him what he was...