Popple v. State

• Decision Date: 14 October 1993
• Docket Number: No. 80696,80696
• Parties: , 18 Fla. L. Weekly S533 Tedd J. POPPLE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 185

626 So.2d 185

62 USLW 2308, 18 Fla. L. Weekly S533

Tedd J. POPPLE, Petitioner, v. STATE of Florida, Respondent.

No. 80696.

Supreme Court of Florida.

Oct. 14, 1993.

Richard L. Jorandby, Public Defender, and Ellen Morris and Paul E. Petillo, Asst. Public Defenders, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.

GRIMES, Justice.

We review Popple v. State, 609 So.2d 619 (Fla. 4th DCA 1992), because of its conflict with Brown v. State, 577 So.2d 708 (Fla. 2d DCA 1991), and Jackson v. State, 579 So.2d 871 (Fla. 5th DCA 1991). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

Tedd J. Popple was sitting in a legally parked car in a desolate area when a sheriff's deputy approached from the rear. After the deputy noticed Popple making furtive movements, he asked Popple to exit his vehicle. As Popple opened the door, the officer saw a cocaine pipe in plain view on the floorboard of the car. Popple was arrested, and the pipe and several rocks of cocaine were seized.

Popple was convicted of possession of cocaine and drug paraphernalia. On appeal, Popple argued that evidence of the contraband should have been suppressed because the officer did not have the requisite reasonable suspicion to direct him from his vehicle. In a split decision, the Fourth District Court of Appeal affirmed the convictions upon the premise that the officer's request that Popple step out of his car did not elevate the incident from a consensual encounter to an investigatory stop.

The testimony at the suppression hearing reflected that on June 1, 1991, at about 12:55 p.m. Tom Wilmoth, a uniformed deputy with the Indian River County Sheriff's Department, was investigating an abandoned stolen car located about one block from a high crime area. Deputy Wilmoth moved the abandoned car from the middle of the street to the side of the road and parked his patrol car in the shade to wait for a wrecker. While he was waiting, Wilmoth glanced in his rearview mirror and noticed Popple sitting in a car parked on the side of the road about four blocks away. Because the street was rather desolate, with no other cars and only a few residences, Wilmoth decided to inquire whether Popple knew anything about the stolen car or if he was experiencing car trouble. Wilmoth drove around the block, parked his patrol car behind Popple and approached his vehicle. Wilmoth testified that he must have "surprised him pretty bad" because he observed Popple acting in a nervous manner, reaching under the seat and "flipping" about in the car. To insure his safety, Wilmoth directed Popple to exit his vehicle. As Popple did so, Wilmoth saw a cocaine pipe in plain view on the floorboard of the car between the driver's seat and the driver's door. He arrested Popple and seized eight cocaine rocks discovered in the search incident to the arrest.

There are essentially three levels of police-citizen encounters. The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Sec. 901.151 Fla.Stat. (1991). In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

While not involved in the instant case, the third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Sec. 901.15 Fla.Stat. (1991).

In affirming Popple's conviction, the court below reasoned:

We do not believe that a consensual encounter ceases to be an encounter and becomes a stop in every instance where an officer requests someone to step out of a car. A good example of this is the present case where the officer intended only to talk with the defendant. The circumstances and the defendant's actions in this case created a situation where it was in the best interest of both the officer and the defendant that their conversations take place with the defendant out of the car. The potential threat perceived by the officer under these circumstances clearly outweighed any de minimis inconvenience imposed upon the defendant by the officer's request that he step out of his car. This request did not imply that the defendant was being detained or that he was not free to leave.

Popple, 609 So.2d at 620. The court admitted that its rationale differed from Brown and Jackson.

In Brown, police officers were conducting a drug search by randomly approaching people on the street who they thought were "possibly selling narcotics." Brown was sitting in his parked vehicle when an officer approached asking him to identify himself. Brown did not do so and was ordered to exit his car. As Brown opened his door, the officer observed three bags of marijuana in the car. The court stated:

First, we hold that this was a stop rather than a consensual encounter. Although Officer Cuicci needed no founded suspicion to approach and talk to Brown, once he directed Brown to exit the car, the encounter became a stop since Brown was no longer free to leave. See State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989).

577 So.2d at 709. Following Brown, the court in Jackson held that although the officer needed no founded suspicion to approach and talk to Jackson, once the officer directed Jackson to exit the car, the encounter became a stop requiring a founded suspicion.

The State concedes that Deputy Wilmoth did not have the well-founded suspicion necessary to authorize a temporary detention. The State seeks to justify the deputy's decision to order Popple out of the vehicle by first arguing that because Popple was parked in a desolate area Wilmoth acted reasonably in approaching Popple to check if he was experiencing car trouble or might know information about the abandoned vehicle. The State then maintains that under the doctrine of Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), Deputy Wilmoth could order Popple to exit his vehicle for his own safety once he had decided to talk with him.

It is well established that an officer does not need to have a founded suspicion to approach an individual to ask questions. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Lightbourne v. State, 438 So.2d 380 (Fla.19...