State v. Johnson
| Decision Date | 06 June 1997 |
| Docket Number | No. 95-1943,95-1943 |
| Citation | 696 So.2d 880 |
| Parties | 22 Fla. L. Weekly D1392 STATE of Florida, Appellant, v. Jeremiah JOHNSON, Appellee. |
| Court | Florida District Court of Appeals |
We again grant rehearing and substitute the following opinion.
Jeremiah Johnson moved to suppress the illegal drugs found on himself and in his vehicle on the basis that the discovery of cannabis on a "former" passenger does not justify the warrantless search of a vehicle owned by another. The trial court suppressed the evidence and we reverse.
It is apparent that the court suppressed the evidence in this case not because the officer improperly commanded the codefendant to remove his hands from his pockets, thus revealing the cannabis (the argument now being made) but rather because the court believed that it should, under the circumstances of this case, grant Johnson's motion based on the argument that the search of the passenger compartment of the vehicle was unauthorized since the occupants were outside the vehicle at the time of the arrest.
We all agree that this was an incorrect basis for the ruling. In New York v. Belton, 453 U.S. 454, 459-460, 101 S.Ct. 2860, 2863-2864, 69 L.Ed.2d 768, 774-775 (1981), the United States Supreme Court addressed "the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants" and held "that when a policeman has made a lawful custodial arrest of the occupants of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." We do not believe that "the occupants" can avoid the consequence of Belton by merely stepping outside the automobile as the officers approach.
Even so, the dissent argues that under the "tipsy coachman rule," the trial court should be upheld because its ruling was right for another reason. This argument suggests that the officer's request that one of the occupants who had just vacated the vehicle remove his hands from his pockets while they engaged in a conversation agreed to by that occupant was so coercive that it converted what had been a consensual encounter into a seizure justifying the suppression of all the after-discovered drugs. We simply disagree.
The facts are not disputed. Jeremiah Johnson, appellant herein, was the driver and owner of a vehicle parked in a garage located on the top of the Alba Business Building. As officers on bicycles approached, the occupants exited the vehicle. One of these occupants was Ryan. Officer Berry approached Ryan and asked if he could speak to him. Officer Berry testified, "he stated sure and at that time he walked toward me and placed his hands in his pocket and I asked him if he would mind while I was talking to him if he would take his hands out of his pocket." When asked why he made this request, Officer Berry responded, "because as I went on to explain I did not know him and for safety reasons I--if I don't know him and I didn't know what he had in his pockets I would feel more comfortable if he takes his hands out of his pockets."
In response to this request, Ryan said, "Sure, I'll empty the contents of my pockets." He then proceeded to empty his pockets revealing the cannabis. Ryan was placed under arrest and since the officer had just observed him sitting in the passenger seat of the automobile, he proceeded to search the passenger compartment of the vehicle. In the glove compartment, additional drugs were found. Because Johnson was the owner/driver of the vehicle, he was placed under arrest and a search of his person revealed even more drugs.
The dissent suggests that when the officer asked Ryan if he would mind removing his hands from his pockets, the consensual encounter was converted into a seizure. We disagree.
In arguing for reversal, the dissent relies on Popple v. State, 626 So.2d 185 (Fla.1993). We believe such reliance is misplaced. In Popple, an officer approached a vehicle legally parked in a desolate area and "asked" Popple to exit the vehicle. It is somewhat difficult from the opinion to determine exactly what the officer said to Popple. Although the court uses the term "asked" in one sentence, it also stated that, "[T]o insure his safety, [Officer] Wilmoth directed Popple to exit the vehicle." Id. at 186. The court also stated that "[t]he State seeks to justify the deputy's decision to order Popple out of the vehicle ..." Id. at 187 Finally, the court stated:
Although there is no litmus-paper test for distinguishing a consensual encounter from a seizure, a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity. [Citation omitted.] This court has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart. [Citation omitted.] Whether characterized as a request or an order, we conclude that Deputy Wilmoth's direction for Popple to exit his vehicle constituted a show of authority which ... a reasonable person under the circumstances would believe that he should comply. [Emphasis added.] [Citation omitted.]
Because of the limited facts given in Popple, we cannot tell whether the officer "asked," "directed," "ordered," or "requested" Popple to exit the vehicle. Nor can we tell from the opinion, although we might be able to tell from the Popple record, the tone of voice used in making the request/order/direction. Whatever the deputy said, and however he said it, even if characterized as a request, clearly didn't pass muster. However, in our case, it is undisputed the officer merely said, "Would you mind removing your hands from your pockets while we talk?" It is difficult to imagine how such inquiry could intimidate Ryan into emptying his pockets. More importantly, however, while a request to exit a vehicle might cause a reasonable person to conclude that he is not free to leave (since he is abandoning his means of transportation), the same simply cannot be said of a request to remove one's hands from his pockets during a conversation in which he had agreed to participate. The fact that Ryan was not intimidated in this case is perhaps most evident because he did not claim that he was nor did the trial court find any intimidation. Here, there was no indication that there was anything to prevent Ryan from terminating the conversation or to prevent the occupants from getting back into the automobile and driving away.
We believe the case that controls this search and seizure issue is Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In Bostick, the United States Supreme Court held that a police officer, even though he has no basis for suspecting an individual, may not only request that the individual talk to him but may also request such person to submit to a search so long as the officer does not convey a message that compliance with the request is required. There is nothing in this record, and the trial court made no such finding, that the request that Ryan remove his hands from his pockets while he and the officer talked conveyed a message that compliance was mandated.
Under Bostick, it would even have been appropriate for the officer to request that Ryan submit to a search. In this event, had Ryan said "Sure, I'll empty the contents of my pockets" (his actual response in this case), the search would have been legal under Bostick. But Officer Berry did not request a search in this case. His request was much less intrusive: "Would you mind removing your hands from your pockets while we talk?" This request, most reasonable under the circumstances, does not justify suppressing the drugs found as a result of Ryan's voluntary compliance with the request. In Bostick v. State, 593 So.2d 494 (Fla.1992), the Florida Supreme Court, on remand, upheld a request far more intrusive on its face than the request made herein.
REVERSED and REMANDED for further action consistent with this opinion.
This case turns upon whether a "request" instead of an "order" to remove Ryan's hands from his pockets, "to assure the officers' safety," constituted a seizure. Whether the officer's...
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State v. R.R., 96-1445
...was a consensual encounter. Crumpton, 676 So.2d at 990, (citing State v. Starke, 574 So.2d 1214(Fla. 2d DCA 1991)). In State v. Johnson, 696 So.2d 880 (Fla. 5th DCA 1997), the fifth district, superseding two previously issued opinions in the same case, elaborated on why it was rejecting the......
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Thomas v. State of Florida, 93070
...subsequent search should not be invalidated merely because the defendant is outside of the automobile. As stated in State v. Johnson, 696 So. 2d 880, 881 (Fla. 5th DCA 1997), the occupants of a vehicle cannot avoid the consequences of Belton merely by stepping outside of the vehicle as the ......
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Woods v. State, 5D03-183.
...in connection with this roadside encounter, simply asked him to stay back while Deputy Spooner searched his car. See State v. Johnson, 696 So.2d 880 (Fla. 5th DCA 1997) (officer's request that passenger who had voluntarily vacated a vehicle remove his hands from his pockets while they spoke......
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State v. Thomas, 97-03576
...arrests of persons in the car from arrests of persons recently vacating the car...."). As noted by the court in State v. Johnson, 696 So.2d 880 (Fla. 5th DCA 1997), the occupant of a vehicle cannot avoid the consequence of the Belton rule merely by stepping outside the automobile as officer......