Mayhue v. State, 94-01199

• Decision Date: 09 August 1995
• Docket Number: No. 94-01199,94-01199
• Citation: 659 So.2d 417
• Parties: 20 Fla. L. Weekly D1815 James MAYHUE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 417

659 So.2d 417

20 Fla. L. Weekly D1815

James MAYHUE, Appellant, v. STATE of Florida, Appellee.

No. 94-01199.

District Court of Appeal of Florida Second District.

Aug. 9, 1995.

Rehearing Denied Sept. 1, 1995.

James Marion Moorman, Public Defender and John S. Lynch, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Helene S. Parnes, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Acting Chief Judge.

James Mayhue challenges the trial court's denial of his dispositive motion to suppress and to dismiss. The state had charged him with possession of cocaine, possession of paraphernalia and obstruction of an officer without violence. Mr. Mayhue's motion alleged that the arresting officer did not have a valid basis to stop him, and, as such, the evidence obtained as a result of the stop should be suppressed. The motion also maintained that the charge of obstructing an officer should be dismissed because one who is unlawfully arrested may resist without violence. We agree with Mr. Mayhue's contention that he was illegally detained and, therefore, reverse the denial of his motion and instruct the trial court to discharge him.

The facts surrounding Mr. Mayhue's detention were presented at the hearing on his motion. Officer Timmons testified that he first noticed Mayhue pushing a shopping cart containing a large television set about 6:40 in the morning. After responding to several calls, he again saw Mayhue with the shopping cart around 7:30 a.m., some four blocks away from where he had first observed him. While the neighborhood was known for criminal activity, the officer had not received any reports of recent burglaries or thefts. Timmons decided to conduct a field interview to determine if a crime had been committed. He got out of his car and asked Mayhue for his name. Mayhue immediately became verbally abusive, refused to give his name and cursed at the officer. He also turned his left side toward Officer Timmons, while keeping his right hand close to his body, with his right fist clenched. Timmons feared Mayhue was concealing a weapon, and therefore ordered him to open his hand. When Mayhue did so, a rock cocaine pipe fell to the ground. Timmons arrested him and discovered a baggie of cocaine in Mayhue's jacket.

Officer Timmons's contact with Mr. Mayhue probably began as a consensual encounter. During a consensual encounter, a citizen may comply with a police officer's requests or ignore them. Because the citizen is free to leave, constitutional safeguards are not invoked. Popple v. State, 626 So.2d 185, 186 (Fla.1993). When the officer ordered Mayhue to open his hand, however, the consensual encounter became an investigatory stop. See Smith v. State, 592 So.2d 1206 (Fla. 2d DCA 1992); Evans v. State, 546 So.2d 1125 (Fla. 3d DCA 1989) (when an officer asks a defendant to remove his hands from his pocket, a reasonable person in the defendant's position would not believe he was free to go).

An investigatory stop requires a well-founded, articulable suspicion of criminal activity. Popple, 626 So.2d at 186. The officer's observations must reasonably indicate that the defendant is committing, is about to commit or has committed a criminal violation. Abraham v. State, 532 So.2d 91 (Fla. 4th DCA 1988). A mere...