F.E.H., Jr. v. State, 4D09-740.

• Decision Date: 24 February 2010
• Docket Number: No. 4D09-740.,4D09-740.
• Citation: 28 So.3d 213
• Parties: F.E.H., JR., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

28 So.3d 213

F.E.H., JR., a child, Appellant, v. STATE of Florida, Appellee.

No. 4D09-740.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

We reverse the circuit court's finding that an interaction between appellant and a detective was a consensual encounter because, under the circumstances, a reasonable person would not have believed that he was free to disregard the order of a detective and leave the area. The stop and subsequent search therefore violated the Fourth Amendment.

Late one night a detective saw two males standing in the corner of the open parking lot of a closed daycare center. One of them was the 16 year old appellant. The detective got out of his car to investigate why the pair was on the property. At the same time, four or five other officers jumped out of their vehicles and walked past appellant to focus on other persons. When appellant walked away from the parking lot, the detective "called him back." The detective did not pull his weapon. Appellant testified that he came back because "[h]e was a policeman; I had to come back."

The area was a high narcotics area, so the detective asked appellant, "Is there anything I should know about? Is there anything on you I need to know about?" Appellant responded, "Yes, I have a bag of marijuana," and handed it to the detective.

Appellant moved to suppress the seizure of the marijuana. After an evidentiary hearing, the circuit court denied the motion, holding that the stop was a consensual encounter and that appellant's responses to the detective's questions were voluntary. Appellant entered a plea of no contest to possession of less than 20 grams of cannabis and reserved the right to appeal the issue raised in the motion to suppress.

This case implicates the fuzzy constitutional line between a consensual encounter and an investigatory stop. See Johnson v. State, 785 So.2d 1224, 1228 (Fla. 4th DCA 2001) (acknowledging the "analytical difficulty" in distinguishing a citizen encounter from an investigatory stop). The Florida Supreme Court has described "three levels of police-citizen encounters" for the purpose of Fourth Amendment analysis. Popple v. State, 626 So.2d 185, 186 (Fla.1993). A first level "consensual encounter" involves "only minimal police contact," during which

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 (citing U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). The second level of police-citizen encounter is an investigatory stop. Id. At this level,

a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

Id. (citations omitted).¹ Thus, an investigatory stop is a seizure for constitutional purposes, which requires a factual basis to support it. However, a consensual encounter is not a seizure, so it may occur without repercussion, even when a police officer has no reason to suspect that criminal activity is afoot.

"[W]hether a person has been seized in the constitutional framework will be judged in accordance with the reasonable-person standard articulated by the United States Supreme Court in United States v. Mendenhall ...." G.M. v. State, 19 So.3d 973, 978 (Fla.2009). In Mendenhall, a plurality of the Court concluded

that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

G.M., 19 So.3d at 978 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870 (emphasis added) (footnote omitted)); see also Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (where Supreme Court adopted the "free to leave" analysis utilized by the Mendenhall plurality to determine whether a seizure has occurred). Whether a seizure has occurred "is determined by what a reasonable person in [the defendant's] position would have concluded based upon the conduct of the officers." G.M., 19 So.3d at 980 n. 5 (citation omitted).

Here, appellant began to walk away from the detective. He returned to engage the detective as the result of what a reasonable person would believe was an order, so this response was more of a surrender to authority than an act of free will. Florida courts have held that a police officer's direction to a person to do a particular thing, such as to get out of a car, to take hands out of pockets, or to open a mouth are indicative of a seizure. See Popple, 626 So.2d at 188 (concluding that deputy's "direction" for defendant to "exit his vehicle constituted a show of authority which restrained [defendant's] freedom of movement" amounted to a seizure); Kramer v. State, 15 So.3d 790, 791 (Fla. 5th DCA 2009) (ordering Kramer to open his mouth transformed consensual encounter into an investigatory stop); Johnson, 785 So.2d at 1228 (explaining that "`[o]rders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.'" (quoting Harrison v. State, 627 So.2d 583, 584 (Fla. 5th DCA 1993))); Grant v. State, 596 So.2d 98, 100 (Fla. 2d DCA 1992) (finding encounter not consensual where officer ordered defendant to come over and talk with him).

This case resembles D.G. v. State, where this court held that a reasonable juvenile would not feel free to leave, where

the officer did not approach the juveniles, nor did he ask whether they minded approaching him to answer some questions. On the contrary, he ordered them to come over to him, using words of compulsion.

714 So.2d 644, 646 (Fla. 4th DCA 1998).

Here, the detective stated that when he saw appellant walk down the street, "that's when I got out of my car and I called out to him." He stated that he "called him back." Appellant testified that the detective said, "Yo, come here" and that the detective "told me to come here." He did not feel free to disobey that directive, because he knew the detective was an officer in the middle of a police action in which four or five other officers were involved. The detective's words were more indicative of a command than a question, so this case is distinguishable from the line of cases holding encounters to be consensual where a policeman's words were non-aggressive, indicative of a docile request suggesting that a defendant had the option to refuse. See P.W. v. State, 965 So.2d 1197, 1198 (Fla. 4th DCA 2007) (police officer in marked car pulled up next to juvenile...