OA v. State
Decision Date | 09 December 1998 |
Docket Number | No. 97-2047.,97-2047. |
Citation | 754 So.2d 717 |
Parties | O.A., a child, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for Appellee.
In affirming this conviction, we write only to respond to the dissenting opinion.
As police were investigating a traffic matter in the early morning hours, with their police cars parked partially on the swale, a 16-year old boy approached the scene on the sidewalk with a friend. One of the police asked the boy for identification and to explain what he was doing out at that hour. Disclaiming any identification, he did give the officer his name. The officer immediately radioed it to check for warrants. After the officer received a response he inquired as to what the boy was carrying in his backpack, and the boy offered it to the officer to look inside. There the officer found what he thought were burglary tools, along with a loaded firearm.
The boy was arrested for possession of contraband. In time, a trial judge considered his motion to suppress. After hearing testimony from the participants, the judge explained his findings thus:
The court denied the motion to suppress. Following the conviction defendant appeals that denial. We necessarily affirm, for the record contains ample evidence to support his determination.
The basis for the dissent is that, as a matter of law, no reasonable person would feel free to end this kind of consensual encounter during the period after the `officer radioed the name for a computer check and while the parties awaited a response. The dissent then likens this circumstance to relinquishing a drivers license to an officer which, it is argued, constrains the citizen from feeling free to leave, citing United States v. Thompson, 712 F.2d 1356 (11th Cir.1983), and Lightbourne v. State, 438 So.2d 380 (Fla.1983). While recognizing that holding a drivers license "is more coercive than what happened in the present case," the dissent candidly admits the absence of cases identical to this in which the evidence was suppressed. We are not surprised that the dissent has found no cases to support a holding that the present facts are so coercive that they overcome the freedom to end the encounter. Simply stated, the law is to the contrary.
In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), a passenger on a Greyhound bus was approached by officers during a stopover in Fort Lauderdale en route to Atlanta. The officers, who were identifiable by badge, insignia and visible weapon, walked down the aisle of the bus and—without any articulable reason for doing so—stopped at defendant's seat. They asked to see his ticket and some identification. Explaining that they were narcotics officers, they asked for permission to search his luggage. After he consented they found drugs and arrested him. In reviewing the Supreme Court of Florida's holding that the officers had seized the defendant because no reasonable person would have felt free to terminate the encounter, the United States Supreme Court stated the argument in favor of suppression thus:
501 U.S. at 435, 111 S.Ct. 2382. The ultimate holding by the court is a foresquare rejection of that per se argument.
The dissent focuses on the interval between the radioing of defendant's name and address to the police dispatcher, and the later response indicating no outstanding warrants, as amounting to a seizure because no reasonable person would feel free simply to walk away from the police while they were waiting to see if the person is wanted. But that position is at odds with the policy explained by the Court in Bostick:
501 U.S. at 439-440,111 S.Ct. 2382. If it does anything at all in this quagmire of encounters-versus-seizures, Bostick does make clear that per se rules are out. The issue becomes a question of fact, the resolution of which depends on all of the surrounding circumstances. Therefore the dissent's reliance on cases like United States v. Thompson, 712 F.2d 1356 (11th Cir.1983), and Lightbourne v. State, 438 So.2d 380 (Fla.1983), is especially misplaced, for after Bostick they are of doubtful authority.
It is of course settled in search and seizure jurisprudence that:
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