State v. Carley, 92-02769

Decision Date11 March 1994
Docket NumberNo. 92-02769,92-02769
Citation633 So.2d 533
Parties19 Fla. L. Weekly D565 STATE of Florida, Appellant, v. Daniel L. CARLEY, Appellee.
CourtFlorida District Court of Appeals

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

James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellee.

PATTERSON, Judge.

This appeal arises from the order which grants the appellee's motion to suppress. The state argues that the appellee was not illegally detained, and therefore, evidence the officer found in plain view during the encounter should not have been suppressed. We agree and reverse.

On September 26, 1991, Officer McAlevey was aware that several rental vehicles had been stolen from the airport when she spotted a van with a rental tag parked in the College Hill Housing Project at 3:30 a.m. She called for a backup and then approached the appellee as he got out of the van. She said, "I just need to speak with you in reference to this van," and asked the appellee for his driver's license.

The backup officer, Officer Morman, asked the appellee if he had rental papers for the van. The appellee stated that they were in the van and gave Morman his consent to get them. Morman shined his flashlight inside the vehicle and saw a sawed-off shotgun protruding from under the seat. He placed the appellee under arrest and found a shotgun shell in the appellee's right front pocket during a pat-down search.

The appellee was charged with possession of a short-barreled shotgun. He filed a motion to suppress, which the trial court granted on the ground that the evidence was found as a result of an illegal detention. We reverse since the officers and the appellee were involved in a consensual encounter, rather than a detention, when the sawed-off shotgun was discovered in plain view.

An officer does not need a founded suspicion of criminal activity to approach and talk to someone. State v. Raines, 576 So.2d 896 (Fla. 2d DCA 1991). The officers' actions of asking the appellee about the vehicle and for his driver's license and rental papers did not transform the encounter into a stop. See State v. Starke, 574 So.2d 1214 (Fla. 2d DCA 1991). "[W]hile most citizens respond to a police request, the fact that they do so without being told they are free not to respond does not eliminate the consensual nature of their response." State v. Simons, 549 So.2d 785, 787 (Fla. 2d DCA 1989).

Officer Morman received...

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5 cases
  • State v. Smith
    • United States
    • Florida District Court of Appeals
    • 25 d3 Outubro d3 1995
    ...conclusion that a consensual encounter occurred in this case. See State v. Mitchell, 638 So.2d 1015 (Fla. 2d DCA 1994); State v. Carley, 633 So.2d 533 (Fla. 2d DCA 1994).2 The state conceded at the hearing that there was no probable cause to search the ...
  • Cubby v. State, 96-04087
    • United States
    • Florida District Court of Appeals
    • 23 d5 Janeiro d5 1998
    ...of criminal activity to make a brief stop of an individual to determine the person's identity or make inquiries. See State v. Carley, 633 So.2d 533 (Fla. 2d DCA 1994); Hill v. State, 561 So.2d 1245 (Fla. 2d DCA 1990). A frisk or pat-down, however, will transform a routine, consensual, polic......
  • State v. M.J., 95-02033
    • United States
    • Florida District Court of Appeals
    • 26 d3 Junho d3 1996
    ...2d DCA 1993). An officer can engage a citizen in conversation without a founded suspicion of criminal activity. See State v. Carley, 633 So.2d 533 (Fla. 2d DCA 1994). An encounter remains consensual unless the police prevent a citizen from exercising the right to walk away, whether by using......
  • Holden v. State, 5D03-2525.
    • United States
    • Florida District Court of Appeals
    • 2 d5 Julho d5 2004
    ...consensual encounter is similar to an officer's finding illegal items in plain-view during a consensual encounter. See State v. Carley, 633 So.2d 533 (Fla. 2d DCA 1994) (reversing motion suppressing evidence where the officers and defendant were involved in a consensual encounter and a sawe......
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