G.M. v. State

• Decision Date: 23 April 2008
• Docket Number: No. 3D06-3033.,No. 3D06-3032.,3D06-3032.,3D06-3033.
• Citation: 981 So.2d 529
• Parties: G.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

981 So.2d 529

G.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 3D06-3032.

No. 3D06-3033.

District Court of Appeal of Florida, Third District.

April 23, 2008.

Bennett H. Brummer, Public Defender, and Jessica Zagier, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before GREEN, ROTHENBERG, and SALTER, JJ.

ROTHENBERG, Judge.

G.M. appeals the trial court's denial of his motion to suppress the evidence seized in this case. Because there is competent substantial evidence to support the trial court's factual findings, and the trial court correctly applied the law, we affirm.

The evidence presented at the hearing on G.M.'s motion to suppress is that Officers Smith and Cuenca observed G.M. and a group of between six and eight individuals loitering in the park. G.M. alternated between sitting in a black Lexus parked next to another vehicle and standing outside the car talking to the others. The other individuals were also getting in and out of the vehicles. Because no one in the group was participating in park activities, and the police department had received reports of drug-related activity in the park, the officers decided to investigate.

The officers, who were in plain clothes and in an unmarked car, activated their emergency lights to identify themselves as police officers, crossed the street, pulled into the park behind the Lexus, and exited their vehicle. The motion to suppress reflects the following testimony by Officer Smith, which G.M. does not dispute:

Q. And when you approached the vehicles that the respondent was allegedly found in and that the other individuals were around, you put your sirens on, not your sirens, I'm sorry, your emergency equipment, is that correct?

A. Yes.

Q. And you also testified that you were wearing your badge when you exited your vehicle?

A. Yes

Q. Okay. Now the purpose of those sirens, I mean of that emergency equipment is not only to inform traffic of your motion or your situation, but it's to inform people that you're a police officer, isn't that right?

A. Correct.

Q. And you used it in this case, because you were, as you stated, a plain-clothes officer. You used that —

A. Used what?

Q. The equipment, the emergency equipment.

A. What kind of equipment?

Q. The equipment that you testified that you used.

A. The lights. I didn't use the siren.

Q. Okay, the equipment that you used, you used to identify yourself as a Police Officer and advise these individuals that you were a Police Officer and that although you weren't in Police clothes, you were in fact a Police Officer.

A. Yes.

Q. And that's the same reason you wear your badge out.

A. Right.

Officer Smith testified that he exited his vehicle, and as he approached the Lexus, he could smell marijuana emanating from the vehicle. He explained that in addition to the smell of marijuana, as he approached the Lexus he could see G.M. sitting in the back seat rolling a marijuana cigarette. While initially G.M. did not see Officer Smith because he had his head down, G.M. eventually looked up, saw Officer Smith with his badge, and put the marijuana in his mouth, which he later spit out.

Officer Cuenca testified that he also smelled the marijuana as he was approaching the Lexus, and that although he could see G.M. sitting in the back seat of the car, he did not know if G.M. saw them.

G.M. testified that he learned that the officers were approaching the car that he was in when someone alerted him to the presence of police officers. He was not alone in the car at the time. G.M. admitted that he had the marijuana in his lap, he was rolling a marijuana cigarette, and when he learned the police were outside, he put the marijuana cigarette in his mouth.

G.M. argues that, because the officers activated their emergency lights when they drove into the park and stopped their vehicle behind the parked vehicle G.M. was sitting in, the officers automatically converted what would otherwise constitute a consensual police encounter into a stop. We disagree. Based upon the totality of the circumstances, a standard we are required to apply, G.M. was not stopped by law enforcement, and there was no Fourth Amendment seizure.

STANDARD OF REVIEW

The trial court's factual findings on a motion to suppress come to this Court cloaked with a presumption of correctness and must be sustained if supported by competent substantial evidence. San Martin v. State, 717 So.2d 462, 469 (Fla. 1998); Rhodes v. State, 638 So.2d 920, 926 (Fla.1994). However, when the trial court's ruling on a motion to suppress involves a mixed question of law and fact implicating constitutional questions, the ruling must be reviewed de novo. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla. 2001); State v. Barmeier, 878 So.2d 411, 412 (Fla. 3d DCA 2004). Because G.M.'s argument, that he was "seized" when the officers activated their emergency lights, implicates G.M.'s Fourth Amendment protection against unreasonable seizures under both the Florida and the United States Constitutions, we must examine the evidence and all reasonable inferences in the light most favorable to sustaining the trial court's ruling, while performing a de novo review of the trial court's application of the law to the facts. Connor v. State, 803 So.2d 598, 605 (Fla.2001).

The State concedes, and we conclude, that when the officers activated the emergency lights of their unmarked vehicle and pulled into the park, they had no reasonable suspicion that G.M. or any of the individuals in or around the two vehicles parked in the park had committed or were committing a crime. It is equally clear that when the officers smelled marijuana coming from the black Lexus, the officers had reasonable suspicion to investigate, and when Officer Smith saw G.M. rolling a marijuana cigarette in the back seat of the Lexus as he and the other officer approached the vehicle, they had probable cause to arrest G.M. for possession of narcotics. The question we must resolve, therefore, is whether G.M. had been "seized" before reasonable suspicion and probable cause were established.

In resolving this question, we are bound by our state's constitution, which requires that we follow the United States Supreme Court's interpretation of the Fourth Amendment to the United States Constitution. Prior to 1982, Florida's courts "were free to provide its citizens with a higher standard of protection from governmental intrusion than that afforded by the federal constitution." State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983). However, in 1982, article I, section 12, of the Florida Constitution, relating to searches and seizures, was amended to link our exclusionary rule to the federal exclusionary rule and to require that we follow the United States Supreme Court's interpretations of the Fourth Amendment and to provide no greater protection than those interpretations. Bernie v. State, 524 So.2d 988, 990-91 (Fla.1988); see also Perez v. State, 620 So.2d 1256, 1258 (Fla.1993) (reaffirming the court's earlier position in Bernie, and recognizing that by reason of the 1982 amendment to article I, section 12 of the Florida Constitution, the Florida Supreme Court was bound by the United States Supreme Court's interpretation of the Fourth Amendment).

The United States Supreme Court has made it clear that law enforcement officers do not violate the Fourth Amendment's prohibition against unreasonable seizures merely by approaching individuals on the street or in other public places, Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), identifying himself or herself as a law enforcement officer, United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), or by posing questions and asking for identification. United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (stating that a seizure does not occur simply because a police officer approaches an individual and asks a few questions).

In Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court specifically held that "only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred." While recognizing that law enforcement officers may approach individuals in public places and briefly question them without reasonable suspicion and not violate the Fourth Amendment's prohibition against unreasonable seizures, G.M. asks this Court to adopt a per se rule that where a police officer in a vehicle activates his or her emergency lights, the officer automatically converts a police encounter into a seizure. The United States Supreme Court has, however, noted in Drayton and Bostick that such per se rules are inappropriate in the Fourth Amendment context and that "[t]he proper inquiry necessitates a consideration of `all the circumstances surrounding the encounter.'" Drayton, 536 U.S. at 201, 122 S.Ct. 2105 (quoting Bostick, 501 U.S. at 439, 111 S.Ct. 2382).

Some of the factors relevant to this inquiry include:

whether a citizen's path is blocked or impeded; whether identification is retained; the suspect's age, education and intelligence; the length of the suspect's detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect, and the language and tone of voice of the police.

United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir.1991). Similarly, in United States v. Ringold, 335 F.3d 1168, 1172 (10th Cir.2003), the court provided the following nonexhaustive list of factors:

[T]he threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use...