State v. R.R., 96-1445

• Decision Date: 16 July 1997
• Docket Number: No. 96-1445,96-1445
• Citation: 697 So.2d 181
• Court: Florida District Court of Appeals
• Parties: 22 Fla. L. Weekly D1719 The STATE of Florida, Appellant, v. R.R., a juvenile, Appellee.

Page 181

697 So.2d 181

22 Fla. L. Weekly D1719

The STATE of Florida, Appellant, v. R.R., a juvenile, Appellee.

No. 96-1445.

District Court of Appeal of Florida Third District.

July 16, 1997.

Robert A. Butterworth, Attorney General, and Joni Braunstein, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Amy D. Ronner, Special Assistant Public Defender, and Elton D. McIntosh and Frank C. Simone, Certified Legal Interns, for appellee.

Before NESBITT, JORGENSON and SHEVIN, JJ.

NESBITT, Judge.

Based on a tip, two police officers conducted surveillance of an abandoned Dade house. They watched the house for ten to fifteen minutes, but saw no drug traffic. They observed the juvenile R.R. sitting in front of the house, listening to a radio. The officers had been told that when music was playing, drugs were available for sale. The officers approached. Because the juvenile was looking down, adjusting his radio, he did not see the officers approach. When R.R. looked up, the two police officers were standing approximately three feet in front of him. They were wearing exposed badges and guns. Before either officer spoke, R.R. dropped two clear plastic bags containing narcotics. R.R. remained seated. The officers then retrieved the plastic bags, and charged R.R. with possession of a controlled substance. The public defender moved to suppress the plastic bags.

The only party testifying at the suppression hearing was one of the arresting officers. After hearing the officer's testimony and counsels' arguments, the trial judge directed the child's counsel to his chamber to retrieve State v. Hollinger. The trial judge gave her the citation of 596 So.2d 521 (Fla. 5th DCA 1992). After reviewing the retrieved case, the trial judge concluded:

[T]he Court finds that there's no seizure here. When the respondent drops the package in this case, there was no show of authority by way of the orders of the respondent nor was he placed under arrest based on the testimony I've heard today. So that's why I'm denying your motion. All right.

Thereafter, defendant pled no contest, specifically reserving the issue of the suppression of the evidence. The next morning defense counsel motioned for re-hearing. Counsel had discovered that the trial court had based its decision on a case which was overturned by the supreme court in Hollinger v. State, 620 So.2d 1242 (Fla.1993). Considering the newly discovered decision, the trial court reiterated the facts and then stated:

So, the question becomes whether or not there was a show of authority at the time in which he [R.R.] dropped the drugs.

Relying on Hollinger, the trial court then granted the motion. Thus, the issue in this case is whether the trial court erred in concluding that the evidence at issue had been dropped as the result of an unlawful seizure.

In Voorhees v. State, No. 83,380, --- So.2d ---- (Fla. June 19, 1997), the supreme court, addressing the issue of a trial court's decision not to suppress certain evidence, observed:

The United States Supreme Court has defined a consensual encounter as one in which a reasonable person would feel free to disregard the police and go about the person's business. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion) (finding that police officers do not violate the Fourth Amendment prohibition against unreasonable searches and seizures by approaching an individual on the street and asking if the person is willing to answer a few questions; if so, putting questions to the person and offering the person's voluntary answers to such questions in evidence in a criminal prosecution). A consensual encounter does not require the police to have a reasonable suspicion of any improper conduct before initiating conversation. Popple v. State, 626 So.2d 185 (Fla.1993). A court, when determining whether a particular encounter is consensual, must look to all the circumstances surrounding the encounter when deciding if the police conduct would have communicated to a reasonable person that the person was free to leave or to terminate the encounter. Bostick, 501 U.S. at 439, 111 S.Ct. at 2389.

Traditionally, there are certain factors the courts have considered in determining whether a seizure has occurred: "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); United States v. Moreno, 897 F.2d 26, 30 (2d Cir.), cert. denied, 497 U.S. 1009, 110 S.Ct. 3250, 111 L.Ed.2d 760 (1990).

In reviewing search and seizure decisions, Florida courts and federal courts alike apply different standards of review, depending on the nature of the questions presented. Aspects or components of the trial court's decision resolving legal questions are subject to de novo review, while factual decisions by the trial court are entitled to deference commensurate with the trial judge's superior vantage point for resolving factual disputes. See Wilson v. State, 673 So.2d 505 (Fla. 1st DCA), review denied, 682 So.2d 1101 (Fla.1996); State v. Setzler, 667 So.2d 343, 344 (Fla. 1st DCA 1995).

The Supreme Court has characterized the Fourth Amendment limits of search-and-seizure power as intended "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals," United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976), but "not to eliminate all contact between the police and the citizenry...." Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877; State v. Baldwin, 686 So.2d 682, 684 (Fla. 1st DCA 1996). "[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions." Baldwin, 686 So.2d at 684, (citing State v. Barnett, 572 So.2d 1033 (Fla. 2d DCA) (after determining that the person they sought was not in the car they had stopped, officers still were justified in asking the driver for identification, and their requests for a driver's license and vehicular papers merely continued the consensual encounter, not invoking the Fourth Amendment), review denied, 581 So.2d 163 (Fla.1991)).

Popple v. State, 626 So.2d 185 (Fla.1993), as well as Lang v. State, 671 So.2d 292, 293 (Fla. 5th DCA 1996), outlines a three "level" analysis. At the police-citizen encounter level, a citizen may voluntarily comply with an officer's request and respond to questioning, or refuse to do so. At that point, the citizen is free to leave. This is followed by an investigatory stop, as set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), followed by the third level of encounter, an arrest. See Williams v. State, 694 So.2d 878 (Fla. 2d DCA 1997)(concluding initial encounter between police and defendant and preliminary questioning was consensual encounter until officer asked defendant to pull his waistband forward, at which point consensual encounter became investigatory stop.)

Analyzing the facts in Lang, 671 So.2d at 294, the court observed:

... this case turns on whether Lang had submitted to the deputy's authority at the time he dropped the pill bottle.... In this case Lang had not been physically subdued, but he had submitted to the deputy's authority by beginning to comply with the deputy's instruction to get into the patrol car. Had the deputy here merely asked Lang to approach his car in order to speak with him, and Lang had thrown down the contraband, or had Lang refused to comply with the deputy's directive, Lang would have voluntarily abandoned the contraband, and it could have been used as evidence against him. (Emphasis added.)

In State v. Crumpton, 676 So.2d 987 (Fla. 2d DCA 1996) the second district concluded that an order to disperse, given by a police officer to the defendant and others, was not the functional equivalent of a seizure of the defendant's person. Therefore, the subsequent interaction between the defendant and the police officer in which the officer asked what defendant had in his pocket and defendant responded that he had rock cocaine, was a consensual encounter rather than an unlawful detention.

The second district reversed the trial court's decision to grant Crumpton's motion to suppress, concluding:

[t]here is no competent, substantial evidence on the record that the officer used language that might indicate the appellee could not walk away or that the officer's actions or demeanor were intimidating. 574 So.2d at...