Perez v. State, No. 76184

CourtUnited States State Supreme Court of Florida
Writing for the CourtGRIMES; OVERTON; BARKETT; SHAW, J., dissents with an opinion, in which KOGAN; KOGAN, J., dissents with an opinion, in which SHAW; OVERTON; Shaw; BARKETT; Overton; Overton's; SHAW; Overton; KOGAN; KOGAN; SHAW
Citation620 So.2d 1256
Parties18 Fla. L. Week. S361 Antonio PEREZ, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. 76184
Decision Date24 June 1993

Page 1256

620 So.2d 1256
18 Fla. L. Week. S361
Antonio PEREZ, Petitioner,
v.
STATE of Florida, Respondent.
No. 76184.
Supreme Court of Florida.
June 24, 1993.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.

Page 1257

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.

GRIMES, Justice.

We review State v. Perez, 592 So.2d 1099 (Fla. 3d DCA 1990), because of certified conflict with Spann v. State, 529 So.2d 825 (Fla. 4th DCA 1988). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

The pertinent facts of the case are summarized in the opinion of the district court of appeal:

Two uniformed City of Miami police officers were on patrol in an area known to be high in narcotics activity. They observed Perez and another male, who appeared to be passing an object between them. Believing that the two might be engaging in a narcotics transaction, one officer exited the police car and started to walk toward Perez. He either told Perez to freeze, or to stop. Perez fled on foot and the officer chased him. Perez ran into an alley while pulling something from his waistband. The officer heard a loud, metallic noise of something dropping in the alley. The officer caught Perez who, after being given Miranda warnings, 1 volunteered that he became nervous and ran "because he knew the gun that he had was stolen." A revolver was recovered in the alley. Perez was charged with carrying a concealed firearm and carrying a concealed firearm by a convicted felon. See Secs. 790.01, 790.23, Fla.Stat. (1987).

Perez, 592 So.2d at 1099.

Perez successfully moved to suppress the firearm prior to trial. The judge found that the police did not have reasonable suspicion to support an investigative stop under section 901.151, Florida Statutes (1987), and held that the firearm was seized as a direct result of the illegal stop. The Third District Court of Appeal reversed the order of suppression. While acknowledging the State's concession of the absence of reasonable suspicion for the stop, the court held that the firearm was admissible in evidence because it had been abandoned prior to any search. The court relied on its prior decision in State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980), in which it had held that "a person's otherwise voluntary abandonment of property cannot be tainted or made involuntary by a prior illegal police stop of such person. Only when the police begin to conduct an illegal search can a subsequent abandonment of property be held involuntary as being tainted by the prior illegal search...." Id. at 1335-36 (citations omitted). Other cases supporting this view include Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990), and Freyre v. State, 362 So.2d 989 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 468 (Fla.), cert. denied, 444 U.S. 857, 100 S.Ct. 118, 62 L.Ed.2d 76 (1979).

In Spann v. State, 529 So.2d 825, the case certified as being in conflict, the police observed the defendant get out of a car and enter a nearby restaurant. A few minutes later the defendant returned to the car, whereupon the police ordered him to "freeze, stop." The defendant then dropped a package near his feet that proved to be cocaine. Because the defendant dropped the cocaine as a result of the illegal order to stop, the court held that the evidence must be suppressed. The court found the State's theory of abandonment unpersuasive.

Perez also cites State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990), as being in conflict with the opinion below. In that case, a police officer asked the defendant if he had seen the direction taken by a suspect who had fled upon sight of the officer. The defendant nervously pointed to a duplex and then began to run away. The officer told him to stop but he continued to run. While he was running, he threw a pill bottle. The police retrieved the bottle and determined that it contained cocaine. The district court of appeal affirmed the suppression of the cocaine on the premise that the stop was illegal and rejected the State's claim of abandonment.

Page 1258

While this case was pending in this Court, the United States Supreme Court rendered its decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), which is directly on point. In Hodari, several youths fled at the approach of a police car. The police disembarked and gave chase. When one of the officers was almost upon him, Hodari tossed away a small rock before he was tackled. The rock was later determined to be cocaine. In the juvenile proceeding which ensued, the State conceded that it did not have reasonable suspicion to justify stopping Hodari. The United States Supreme Court framed the issue as whether, at the time he dropped the cocaine, Hodari was seized within the meaning of the Fourth Amendment of the United States Constitution. For purposes of its opinion, the Court assumed that the police pursuit was a "show of authority" calling upon Hodari to halt. However, the Court reasoned that a seizure does not occur until a person is physically subdued by the police or submits to an officer's show of authority. Therefore, the Court held that Hodari had not been seized as contemplated by the Fourth Amendment until he was tackled. The recovery of the cocaine that had been abandoned while he was running was not the fruit of an unlawful seizure.

By reason of the 1982 amendment to article I, section 12 of the Florida Constitution, this Court is bound to 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 (Fla.1988). According to the rationale of Hodari, the call for Perez to halt and the subsequent chase did not constitute a seizure until he was caught. In the meantime, he had abandoned the firearm. Because the recovery of the firearm was not the result of an illegal seizure, it should not have been suppressed.

We approve the decision of the court below. We disapprove Bartee to the extent that it is inconsistent with this opinion. However, we find Spann to be consistent with this opinion and with Hodari because there the defendant had submitted to the illegal order to stop when he dropped the cocaine.

It is so ordered.

McDONALD and HARDING, JJ., concur.

OVERTON, J., concurs with an opinion.

BARKETT, C.J., dissents with an opinion.

SHAW, J., dissents with an opinion, in which KOGAN, J., concurs.

KOGAN, J., dissents with an opinion, in which SHAW, J., concurs.

OVERTON, Justice, concurring.

In this case, I am presented with a difficult choice because Justices Shaw and Kogan have now accepted my dissenting view in Bernie v. State, 524 So.2d 988 (Fla.1988), in which Justice Barkett joined. In that partial dissent, I disagreed with the majority by stating that the 1982 amendment to article I, section 12, of the Florida Constitution simply required this Court to interpret Florida's Constitution in accordance with decisions of the United States Supreme Court existing at the time the amendment was adopted. I wrote that, under the amendment, we were not required to make "unknown United States Supreme Court decisions part of our Florida Constitution." Id. at 994 (Overton, J., concurring in judgment). On the other hand, the majority in Bernie, and Justice Ehrlich in his concurring opinion, stated that the people of Florida voted to adopt under the Florida Constitution, the identical principles governing search and seizure that apply under the Fourth Amendment to the United States Constitution, including both past and future United States Supreme Court interpretations.

Justice Shaw and Justice Kogan have now changed their minds regarding their votes in Bernie and have accepted my view on this issue. Thus, the question with which I am currently presented is whether I should join them and as a result, overrule Bernie. This is a difficult question because, although I still believe in the view I

Page 1259

expressed in Bernie, I also strongly believe that adhering to precedent is an essential part of our judicial system and philosophy of law.

The doctrine of precedent is basic to our system of justice. In simple terms, it ensures that similarly situated individuals are treated alike rather than in accordance with the personal view of any particular judge. In other words, precedent requires that, when the facts are the same, the law should be applied the same.

The question of when precedent should be overruled has recently become a significant issue of national interest because of changes in personnel on the United States Supreme Court and the justices' differing views on precedent, as reflected in their recent decision in Planned Parenthood v. Casey, --- U.S. ----, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Before the Planned Parenthood decision, Justices Lewis Powell and John Paul Stevens wrote articles regarding stare decisis in which they took the view that adhering to precedent is an important part of our philosophy of how the law should be applied. They also expressed that, in overruling constitutional precedent, some justifiable reason should exist over and above the conclusion that the prior decision was simply erroneous. As stated by Justice Stevens:

[T]he question whether a case should be overruled is not simply answered by demonstrating that the case was erroneously decided and that the Court has the power to correct its past mistakes. The doctrine of stare decisis requires a separate examination. Among the questions to be considered are the possible significance of intervening events, the possible impact on settled expectations, and the risk of undermining public confidence in the stability of our basic rules of law. Such a separate inquiry is appropriate not only when an old rule is of...

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34 practice notes
  • Parker v. Sec'y, Fla. Dep't of Corr., Case No. 3:09-cv-1203-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 9, 2013
    ...may have held in that property. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Perez v. State, 620 So.2d 1256 (Fla. 1993); State v. Bartee, 623 So.2d 458 (Fla. 1993). Officer Freeman testified that he observed Defendant remove a sweat shirt and discard it......
  • NORTH FLA. WOMEN'S HEALTH SERVICES v. State, No. SC01-843.
    • United States
    • United States State Supreme Court of Florida
    • July 10, 2003
    ...Tyson v. Mattair, 8 Fla. 107 (1858). 59. See, e.g., State v. Schopp, 653 So.2d 1016 (Fla.1995) (Harding, J., dissenting); Perez v. State, 620 So.2d 1256 (Fla.1993) (Overton, J., concurring). 60. See State v. Gray, 654 So.2d 552, 554 (Fla. 1995) ("The legal fictions required to support ......
  • Armstrong v. Harris, No. SC95223.
    • United States
    • United States State Supreme Court of Florida
    • September 7, 2000
    ...following Grose, the issue has been widely debated and has been the focus of intensive and spirited discourse. See, e.g., Perez v. State, 620 So.2d 1256 (Fla. 1993); Bernie v. State, 524 So.2d 988 (Fla. 28. See § 101.161(1), Fla. Stat. (1997) ("The substance of the amendment or other p......
  • Weiand v. State, No. 91,925.
    • United States
    • United States State Supreme Court of Florida
    • March 11, 1999
    ...decisis must bend when there has been a significant change in circumstances since the adoption of the legal rule. See Perez v. State, 620 So.2d 1256, 1259-61 (Fla.1993) (Overton, J., concurring). The changes in the public policy of this state, and our awareness of the plight of victims of d......
  • Request a trial to view additional results
34 cases
  • Parker v. Sec'y, Fla. Dep't of Corr., Case No. 3:09-cv-1203-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 9, 2013
    ...may have held in that property. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Perez v. State, 620 So.2d 1256 (Fla. 1993); State v. Bartee, 623 So.2d 458 (Fla. 1993). Officer Freeman testified that he observed Defendant remove a sweat shirt and discard it......
  • NORTH FLA. WOMEN'S HEALTH SERVICES v. State, No. SC01-843.
    • United States
    • United States State Supreme Court of Florida
    • July 10, 2003
    ...Tyson v. Mattair, 8 Fla. 107 (1858). 59. See, e.g., State v. Schopp, 653 So.2d 1016 (Fla.1995) (Harding, J., dissenting); Perez v. State, 620 So.2d 1256 (Fla.1993) (Overton, J., concurring). 60. See State v. Gray, 654 So.2d 552, 554 (Fla. 1995) ("The legal fictions required to support ......
  • Armstrong v. Harris, No. SC95223.
    • United States
    • United States State Supreme Court of Florida
    • September 7, 2000
    ...following Grose, the issue has been widely debated and has been the focus of intensive and spirited discourse. See, e.g., Perez v. State, 620 So.2d 1256 (Fla. 1993); Bernie v. State, 524 So.2d 988 (Fla. 28. See § 101.161(1), Fla. Stat. (1997) ("The substance of the amendment or other p......
  • Weiand v. State, No. 91,925.
    • United States
    • United States State Supreme Court of Florida
    • March 11, 1999
    ...decisis must bend when there has been a significant change in circumstances since the adoption of the legal rule. See Perez v. State, 620 So.2d 1256, 1259-61 (Fla.1993) (Overton, J., concurring). The changes in the public policy of this state, and our awareness of the plight of victims of d......
  • Request a trial to view additional results

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