G.M. v. State

• Decision Date: 08 October 2009
• Docket Number: No. SC08-1102.,SC08-1102.
• Citation: 19 So.3d 973
• Parties: G.M., etc., Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

19 So.3d 973

G.M., etc., Petitioner, v. STATE of Florida, Respondent.

No. SC08-1102.

Supreme Court of Florida.

October 8, 2009.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief, Ansley B. Peacock, and Lunar C. Alvey, Assistant Attorneys General, Miami, Florida, for Respondent.

LEWIS, J.

This case is before the Court to review the decision of the Third District Court of Appeal in G.M. v. State, 981 So.2d 529 (Fla. 3d DCA 2008). The district court certified that its decision is in direct conflict with decisions of the First, Second, Fourth, and Fifth District Courts of Appeal on the issue of whether the activation of police lights is dispositive of a finding that an individual has been "seized" under the Fourth Amendment to the United States Constitution. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we conclude that per se rules remain disfavored under Fourth Amendment jurisprudence, and activation of police lights is only one important factor to be considered in a totality-of-the-circumstances analysis of whether a seizure in the constitutional context has occurred.

FACTS AND PROCEDURAL HISTORY

On August 8, 2006, Officers Smith and Cuenca, members of the Miami-Dade Police Department undercover narcotics unit, were in an unmarked vehicle parked on a public roadway across the street from a public park. In the past, the department had received complaints of persons using and dealing narcotics in the park which is adjacent to an elementary school. The officers observed several individuals standing next to a Lexus which was parked beside a second vehicle. On more than one occasion, G.M. exited the Lexus, appeared to speak with individuals standing outside, and then re-entered the car. The officers observed these individuals for approximately fifteen minutes. Although the individuals were not observed in any criminal behavior, the individuals were not engaged in what the officers considered "traditional" park activities. This caused the officers to activate the emergency lights of the unmarked vehicle and drive across the street into the park to approach the group.¹ The officers positioned the police vehicle approximately three feet behind the parked cars and exited the police vehicle. During the encounter, the officers were not in uniform but displayed visible badges on lanyards and possessed firearms—but the weapons remained in the holsters.

When Officer Smith approached the Lexus, he noticed that one or more of the windows of the Lexus were down and he smelled an odor of marijuana while observing smoke emanating from the car. When he looked in a window of the Lexus, Smith observed G.M. in the back seat with a substance that appeared to be marijuana and a "blunt" on his lap.² When G.M observed Officer Smith, and after Smith identified himself as a police officer, G.M. placed the marijuana in his mouth. Officer Smith then ordered G.M. to surrender the marijuana and G.M. complied. Officer Smith proceeded to recover the contraband and G.M. was officially placed in custody for possession of marijuana.³

In the juvenile proceedings that ensued, G.M. filed a motion to suppress the contraband. He contended that the officers illegally searched and seized him without any reasonable suspicion that he was engaged in criminal activity. During the hearing, when inquiry was made as to whether G.M. ever looked up as the officers approached, Officer Smith responded, "He had his head down when I first saw him because he didn't see me coming from the back." During cross-examination, Officer Smith acknowledged that prior to his approach in the unmarked car with emergency lights activated, he had not observed the commission of any crime. Officer Smith also expressed the view that at the time he first made contact with the individuals in and around the cars, they were not free to leave.

Officer Cuenca testified that when he exited the unmarked vehicle, he also saw G.M. seated inside the Lexus with the windows down and smelled a strong odor of marijuana emanating from the car. While Officer Smith directly interacted with G.M., Officer Cuenca positioned himself as security to watch the other individuals who were standing near the cars and to ensure that no one possessed weapons. Officer Cuenca testified that if any of the individuals had attempted to leave the area, he would have attempted to apprehend him or her for purposes of continuing the investigation.

G.M. testified that on the day in question, he had been at the park for approximately five-to-ten minutes and the windows of the Lexus in which he was seated were in the up position the entire time. When he was asked how he became aware that police officers were beside the car, G.M. simply responded that a second individual seated in the vehicle with him warned him of the police presence. When G.M. was asked what he was doing when the officers approached, G.M. replied, "I had marijuana in my lap and I was rolling. I put it in my mouth." The trial court denied the motion to suppress, concluding that the interaction between the officers and the individuals in and around the two parked cars constituted a consensual encounter for which a reasonable articulable suspicion of criminal activity need not be demonstrated. Thereafter, G.M. pled no contest to the charge of possession of marijuana.

On appeal, the Third District Court of Appeal affirmed the trial court's denial of the motion to suppress. See G.M. v. State, 981 So.2d 529, 529 (Fla. 3d DCA 2008). The district court specifically concluded that when the officers activated the emergency lights of their unmarked vehicle and entered the park, they had no reasonable articulable suspicion that G.M. or any of the individuals in or around the two vehicles had committed or were committing a crime. See id. at 531. However, the district court concluded that no illegal seizure had occurred because, in the constitutional framework, G.M. was not seized as a matter of law until after the officers smelled marijuana emanating from the vehicle in which G.M. was seated—an independent factor which established a reasonable articulable suspicion to conduct an investigatory stop—and until Officer Smith observed G.M. in possession of marijuana, which provided probable cause for the arrest. See id. at 533.

The Third District first concluded that G.M. did not see the emergency lights and was not aware of the presence of the officers until Officer Smith was at the window directly outside the Lexus. See id. at 534. Based upon this determination, the district court stated that the activation of the emergency lights was not a factor in the actions of G.M. and, therefore, the activation of the emergency lights should not be considered in a Fourth Amendment totality-based analysis of the facts and circumstances of this case. See id. The district court then determined that the remaining facts surrounding the encounter did not establish a "seizure." See id. ("The officers did not brandish their firearms or surround the vehicle G.M. was in. Although the officers identified themselves as police officers, they did not order any of the individuals to `halt,' ask for identification, or question anyone until they smelled the marijuana coming from the Lexus and saw G.M. rolling a [blunt] in plain view....").

The Third District then expanded the discussion to hold that, even if G.M. had seen the emergency lights, this fact would not convert the encounter into a seizure. See id. The district court reasoned:

There is no evidence that the officers blocked G.M.'s exit from the vehicle, and since G.M. was merely a passenger in the parked vehicle, his ability to drive away was not implicated. The officers did not order anyone to halt or order any of the occupants out of either vehicle. They did not question anyone, ask for identification, or unholster their weapons. They did not direct their attention toward anyone in particular or indicate in any way that the individuals in the vicinity were not free to go. We, therefore, conclude that the activation of the officers' emergency lights to identify themselves as police officers did not convert the encounter into a seizure. In fact, the officers demonstrated good police sense by activating their emergency lights when approaching six to eight individuals in an unmarked vehicle, especially when the officers were not in uniform.

Id. at 535-36. After expanding the discussion to pass upon these questions, the Third District certified direct conflict with a number of district court decisions to the extent that those decisions apply a rule of law that the use of emergency lights to identify police officers when approaching a vehicle constitutes a "seizure" under the Fourth Amendment. See id. at 536. The Third District identified Armatage v. State, 954 So.2d 669 (Fla. 1st DCA 2007); Koppelman v. State, 876 So.2d 618 (Fla. 4th DCA 2004); Errickson v. State, 855 So.2d 700 (Fla. 4th DCA 2003); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); and Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999), as cases in conflict.

Below, one judge agreed with the decision to certify conflict to this Court, but dissented from the majority opinion and concluded that the trial court should have granted the motion to suppress. See id. at 536-44. Specifically, that one judge concluded that under the totality of the circumstances, an unlawful seizure occurred:

When the police officers in this case parked their unmarked vehicle directly behind a lawfully parked car in a parking lot in which G.M. was seated and announced their arrival by activating their police emergency lights, G.M. was unlawfully seized for purposes of the ...