State v. RH, 4D03-4621.
Decision Date | 20 April 2005 |
Docket Number | No. 4D03-4621.,4D03-4621. |
Citation | 900 So.2d 689 |
Parties | STATE of Florida, Appellant, v. R.H., a Child, Appellee. |
Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
This appeal arises from a non-final order suppressing physical evidence. We reverse the order on the basis that the police officers' initial contact with R.H. was a consensual citizen encounter, not a stop, and R.H. consented to the subsequent search.
R.H. was charged by Delinquency Petition with possession of cocaine, in violation of sections 893.03(2)(a)(4) and 893.13(6)(a), Florida Statutes, and with unlawful use of a false name or identity, in violation of section 901.36(1), Florida Statutes. R.H. moved to suppress physical evidence, arguing the encounter was not consensual, no reasonable suspicion existed for the stop, and he was "seized" for Fourth Amendment purposes. After an evidentiary hearing, the trial court granted the motion to suppress.
Deputy Sheriff Officer Leslie Washecka, the only witness to testify at the hearing, testified as follows:
Washecka testified that R.H. looked young, between the ages of 16 and 18. She also stated that they stopped R.H. "for drugs and other problems," which she elaborated to mean "[o]ther crimes." Finally, Washecka testified that
The trial court granted R.H.'s motion to suppress, finding that the contact between the police officer and the R.H. was not a consensual citizen encounter, but rather a stop, and finding that the officer did not have reasonable suspicion to justify the stop. The state appealed the trial court's ruling.
A trial court's ruling on a motion to suppress is a mixed question of fact and law. Shingles v. State, 872 So.2d 434, 437 (Fla. 4th DCA 2004). While legal conclusions should be reviewed de novo, "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. U.S., 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
We hold that reasonable suspicion was not required in this situation because it was a consensual citizen encounter that did not escalate into an investigatory stop. A consensual encounter does not require the police to have a reasonable suspicion of any improper conduct before initiating conversation. Chapman v. State, 780 So.2d 1036, 1037 (Fla. 4th DCA 2001). The Florida Supreme Court described the three levels of police-citizen encounters in Popple v. State, 626 So.2d 185, 186 (Fla. 1993):
(Internal citations omitted.)
"It is well established that an officer does not need to have a founded suspicion to approach an individual to ask questions." Id. at 187. However, even an initially consensual encounter can escalate into a stop. See, e.g., Sholtz v. State, 649 So.2d 283 (Fla. 2d DCA 1995)
(. )
This court has held that "[t]he inquiry for determining when an encounter with the police should properly be deemed a seizure is centered around whether a reasonable person would feel free `to disregard the police and go about his business.'" O.A. v. State, 754 So.2d 717, 720 (Fla. 4th DCA 1998) (citation omitted). This depends upon "the totality of circumstances." Id. The instant case is nearly factually identical to O.A. v. State. In that case, the following transpired:
As police were investigating a traffic matter in the early morning hours, with their police cars parked partially on the swale, a 16-year old boy approached the scene on the sidewalk with a friend. One of the police asked the boy for identification and to explain what he was doing out at that hour. Disclaiming any identification, he did give the officer his name. The officer immediately radioed it to check for warrants. After the officer received a response he inquired as to what the boy was carrying in his backpack, and the boy offered it to the officer to look inside. There the officer found what he thought were burglary tools, along with a loaded firearm.
The boy was arrested for possession of contraband. In time, a trial judge considered his motion to suppress. After hearing testimony from the participants, the judge explained his findings thus:
Based on those facts, this court affirmed the trial court order denying O.A.'s motion to suppress evidence because we...
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