State v. Livingston, 94-02597
| Decision Date | 11 September 1996 |
| Docket Number | No. 94-02597,94-02597 |
| Citation | 681 So.2d 762 |
| Parties | 21 Fla. L. Weekly D2041 STATE of Florida, Appellant, v. Ronald LIVINGSTON, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee.
The state appeals an order granting two motions to suppress filed by the appellee, Ronald Livingston. Although we agree with the state's contention that the trial court erred in granting these motions on the merits, we must require that the appellee be discharged on the charge filed against him because the court erred in declaring a mistrial.
The appellee was charged with possession of cocaine, in violation of section 893.13, Florida Statutes (1993). Immediately prior to jury selection, the parties apparently informed the trial court that the appellee had filed a motion to suppress the evidence that was allegedly unlawfully seized from the appellee and a motion to suppress the statements made by the appellee that were allegedly not freely and voluntarily given. The parties and the court agreed to proceed with jury selection and to have the motions heard prior to the presentation of opening statements. After the jury was sworn and dismissed for the day, the court heard the appellee's motions to suppress.
During the motion to suppress hearing, Officer Stiff testified that at about 7:30 p.m. on the night in question, he observed with binoculars a black male hand cash to the appellee and then the appellee hand the individual back an object, which he stated was consistent with a narcotics transaction that commonly took place in that area. He radioed Officers Lyons and Graham and advised them that he had just observed a hand-to-hand transaction between two black males.
Officer Lyons testified that within a minute of receiving the information, he and Officer Graham encountered the appellee. He stated that they were wearing police uniforms and were in an unmarked car that did not have the emergency equipment activated. The officers never drew their firearms and merely got out without blocking the path of the appellee who was walking in their direction. Officer Lyons stated to the appellee: The appellee responded: "[N]ope, I ain't selling dope," and "what I got are these and they're not real." The appellee handed Officer Lyons a tube containing what he suspected was rock cocaine. The appellee stated that he did not think that selling "fake" or "dreams" was illegal. Officer Lyons then conducted a search of the appellee but did not find anything illegal. A presumptive field test on the rocks that were found in the tube resulted in a weak response or none at all and the officers decided not to arrest the appellee at that time.
Officer Lyons did not think that the appellee was in fear since the officers were conducting a normal conversation with him and the encounter only lasted five minutes. However, the appellee was not read his Miranda rights nor was the appellee told that he was free to leave. The appellee was arrested on a later date after the evidence was tested and determined to be cocaine.
The trial court granted the appellee's motions to suppress and subsequently granted a mistrial. The state filed a timely notice of appeal.
Although our final disposition of the matter makes our determination of the matter moot, we agree with the state's contention that the trial court erred by granting the appellee's motions to suppress because the stop was merely a consensual encounter and not an improper stop and illegal seizure.
A consensual encounter involves only minimal police contact but no seizure and therefore does not intrude on any constitutionally protected interest under the Fourth Amendment. State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989). In determining whether there has been a consensual encounter, a court must consider all of the circumstances surrounding the encounter to determine whether conduct of police officers "would have communicated to a reasonable person that the person was not free to decline the officers' request or otherwise terminate the encounter." Jones v. State, 658 So.2d 178 (Fla. 1st DCA 1995), citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Further, while 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. Simons, 549 So.2d at 787.
The facts of the instant case indicate that a reasonable...
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