State v. Avery, 87-0270

• Decision Date: 03 August 1988
• Docket Number: No. 87-0270,87-0270
• Citation: 531 So.2d 182,13 Fla. L. Weekly 1816
• Parties: , 13 Fla. L. Weekly 1816 STATE of Florida, Appellant, v. Adrian AVERY, Appellee.
• Court: Florida District Court of Appeals

Page 182

531 So.2d 182

57 USLW 2146, 13 Fla. L. Weekly 1816

STATE of Florida, Appellant, v. Adrian AVERY, Appellee.

No. 87-0270.

District Court of Appeal of Florida Fourth District.

Aug. 3, 1988.

Rehearing En Banc Denied Oct. 12, 1988.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Amy L. Diem, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellee.

EN BANC

STONE, Judge.

This is an appeal from an order granting a motion to suppress. Avery, a bus passenger, consented to a search by the police of his luggage, which was found to contain cocaine. The trial court determined that the consent was coerced. Its order provided:

Officer Chris Fahey testified that he and Officer Turner, both of the West Palm Beach Police Department comprised a unit which checked the Trailways Bus Station looking for people who might be acting as couriers for drugs northbound. They along with a dog trained to sniff for drugs would visit the bus station on a random basis for the purpose of checking northbound buses.

On July 26, 1986 at approximately 8:10 p.m., they boarded a bus stopped in West Palm Beach bound for Dallas. They were not in uniform but their badges were prominently displayed and they wore windbreakers which designated the department.

They proceeded to the rear of the bus and began interviewing passengers in an effort to gain their consent to search their luggage.

Officer Turner's attention was drawn to Mr. AVERY because he appeared nervous and used his feet to push his tote bag under the seat. It is noted that Mr. AVERY is a large man. As a result of Mr. AVERY's actions, he was subjected to the officer's questioning.

Officer Turner testified that he obtained the oral consent of Mr. AVERY to look through his baggage that was underneath his seat. The officers were aware that their Department had a written consent to search form but that they didn't feel it was necessary to use such a form because it would take too much time and they couldn't do it for all passengers on board or something to that effect. Further testimony indicated that a consent form might be executed once a search had been completed and the suspect under arrest.

The prospect of being a seated passenger on a commercial public transportation vehicle and seeing police officers come on board with their badges prominently displayed checking each passenger is an intimidating and coercive situation in and of itself.

I find that if consent was given in this case it was coerced by the situation I have just described. Furthermore, I find that the Defendant's actions did not give rise to a founded suspicion which would justify his detention, Ingram v. State, 364 So.2d 821 (Fla. 5th [4th] DCA 1978); Robinson v. State, 388 So.2d 286 (Fla. 1st DCA 1980); Horvitz v. State, 433 So.2d 545 (Fla. 4th DCA 1983); Gorney v. State, 409 So.2d 220 (Fla. 4th DCA 1982).

This opinion is entered en banc because we consider the issue to be of exceptional importance. ¹ We conclude that the trial court erred in determining that the defendant's consent was coerced, and reverse.

Whether consent is voluntary is a question to be determined from the totality of the circumstances. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, reh'g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Denehy v. State, 400 So.2d 1216 (Fla.1980).

In determining whether evidence may be excluded because it was obtained in the course of a warrantless search and seizure, we are obligated to follow the opinions of the Supreme Court of the United States. Art. I, § 12, Fla. Const.

In Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983), the Supreme Court discussed the concept of an encounter between an officer and an individual:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, supra, 442 U.S., at 210, n. 12, 99 S.Ct., at 2255, n. 12; Terry v. Ohio, 392 U.S., at 31, 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring); id., at 34, 88 S.Ct., at 1886 (WHITE, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, 392 U.S. at 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring); id., at 34, 88 S.Ct., at 1886 (WHITE, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, 446 U.S., at 556, 100 S.Ct., at 1878 (opinion of Stewart, J.). If there is no detention--no seizure within the meaning of the Fourth Amendment--then no constitutional rights have been infringed.

In this case, the defendant had not been "stopped" or "seized" as those terms are commonly understood. Nevertheless, if his consent to the search was "coerced," a motion to suppress should be granted, and the wrongfully obtained evidence excluded. Schneckloth v. Bustamonte.

Clearly, such evidence would not be suppressed if Avery had been similarly approached by these officers in an area of the bus station or platform rather than on the bus itself. See, e.g., Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, reh'g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980); Rosa v. State, 508 So.2d 546 (Fla. 3d DCA), rev. denied, 515 So.2d 230 (Fla.1987); Elsleger v. State, 503 So.2d 1367 (Fla. 4th DCA), dismissed, 511 So.2d 298 (Fla.1987); State v. Champion, 383 So.2d 984 (Fla. 4th DCA 1980).

The state contends that Avery's consent was given in the course of an "encounter." See Florida v. Royer; United States v. Mendenhall; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is undisputed that there is no "litmus-paper test" to be applied in distinguishing an "encounter" from a "seizure." Florida v. Royer, 460 U.S. at 506, 103 S.Ct. at 1329. The test is whether a reasonable person would feel free to terminate the encounter, given the totality of the circumstances. Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1879; Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048. In I.N.S. v. Delgado, 466 U.S. 210, 216-217, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984), the Supreme Court explained:

Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment, our recent decision in Royer, supra, plainly implies that interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. In Royer, when Drug Enforcement Administration agents found that the respondent matched a drug courier profile, the agents approached the defendant and asked him for his airplane ticket and driver's license, which the agents then examined. A majority of the Court believed that the request and examination of the documents were "permissible in themselves." Id., at 501, 103 S.Ct., at 1326 (plurality opinion), see id., at 523, n. 3, 103 S.Ct., at 1337-1338, n. 3 (opinion of REHNQUIST, J.). In contrast, a much different situation prevailed in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), when two policemen physically detained the defendant to determine his identity, after the defendant refused the officers' request to identify himself. The Court held that absent some reasonable suspicion of misconduct, the detention of the defendant to determine his identity violated the defendant's Fourth Amendment right to be free from an unreasonable seizure. Id., at 52, 99 S.Ct. at 2641.

What is apparent from Royer and Brown is that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 231-234, 93 S.Ct. 2041, 2049-2051, 36 L.Ed.2d 854 (1973). Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the persons [sic] refuses to answer and the police take additional steps--such as those taken in Brown--to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U.S., at 554, 100 S.Ct., at 1877; see Terry v. Ohio, 392 U.S., at 21, 88 S.Ct., at 1879.

Law enforcement officers are not restricted from boarding buses or other public transportation with the permission of the operator. Being lawfully present, they are free to communicate with the passengers. The location where an encounter takes place--whether on a bus, in a terminal, or in a room--is...