State v. Simons
| Decision Date | 04 October 1989 |
| Docket Number | No. 89-00161,89-00161 |
| Citation | 14 Fla. L. Weekly 2392,549 So.2d 785 |
| Parties | 14 Fla. L. Weekly 2392 STATE of Florida, Appellant, v. John Edward SIMONS, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender and Andrea Steffen, Asst. Public Defender, Bartow, for appellee.
The state's information charged defendant, John Edward Simons, with attempted second-degree murder, alleging he attempted to use a handgun to shoot Vincent Brown. Simons moved to suppress the revolver taken from him by Deputy Ken Pickering. The trial court granted the defendant's motion to suppress, and the state appeals. We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(B). We reverse.
Deputy Pickering was the only witness at the suppression hearing. While on patrol he received a police dispatch which described a black male in a red outfit selling drugs at a supermarket. Pickering had Simons, a black male who was wearing a red jogging outfit, in his view when he received the broadcast. Simons was seated on the sidewalk by the supermarket eating chips when the deputy approached and explained to him that someone matching his description was selling drugs. Pickering asked if Simons would mind emptying his pockets. Simons denied having any drugs but then opened his shirt to reveal a gun. Upon seeing the firearm which had been concealed by Simons' shirt, Deputy Pickering arrested Simons. The trial court suppressed the gun, finding that the description in the broadcast was too vague to support a well-founded suspicion necessary for the police to make an investigatory stop.
The state argues that the trial court erred in characterizing the incident which culminated in seizure of the defendant's gun as a stop rather than a consensual police encounter. We agree.
We begin our discussion by pointing out that there are three levels of encounter between police and members of the public. The first level is sometimes referred to as a consensual encounter. It involves only minimal police contact but no seizure and therefore does not intrude on any constitutionally protected interest under the fourth amendment. The second level involves an investigative "stop" and sometimes a "frisk." At this level, an officer may stop a person if the officer has a well-founded suspicion that criminal activity is afoot. Additionally, the officer may conduct a limited search or frisk of the individual for concealed weapons where the officer is justified in believing the person is armed and dangerous to the officer or others. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A third level involves either a formal arrest or seizure similar to a formal arrest. At this level it is necessary for the police to have probable cause to believe that a crime has been or is being committed. The second and third levels involve protections of the fourth and fourteenth amendments to the United States Constitution and corresponding protections of the state constitution.
In this case, the trial judge concluded that the deputy's action went beyond a mere police encounter and lacked the well-founded suspicion required to make an investigatory stop. Our purpose here is to distinguish an ordinary police encounter not involving fourth amendment ramifications from an investigatory stop which does.
With respect to a police encounter with a member of the public, the United States Supreme Court has observed:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justifications.... The person approached, however, need not answer any question put to him; indeed, he...
To continue reading
Request your trial
-
Stephens v. State
...cert. denied, 490 U.S. 1082, 109 S.Ct. 2104, 104 L.Ed.2d 665 (1989); Beverly v. State, 497 So.2d 530 (Ala.1986); State v. Simons, 549 So.2d 785 (Fla.Dist.Ct.App.1989); State v. McBride, 504 So.2d 840 (La.1987); State v. Walker, 514 So.2d 602 (La.Ct.App.1987); State v. DeLuca, 108 N.J. 98, 5......
-
Saturnino-Boudet v. State
...228, 230 (Fla.1990); Thames v. State, 592 So.2d 733, 735 (Fla. 1st DCA), rev. denied, 599 So.2d 1280 (Fla.1992); State v. Simons, 549 So.2d 785, 786-87 (Fla. 2d DCA 1989). In the consensual encounter, an officer may question anyone on the street without founded suspicion, and unless the off......
-
J.M.C. v. State
...So.2d 793, 796 (Fla. 1st DCA 1981)); e.g., Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); State v. Simons, 549 So.2d 785, 786 (Fla. 2d DCA 1989); see also 901.15, Fla. Stat. However, if the Terry investigatory stop is not lawful, anything occurring after the stop i......
-
Rinehart v. State, 2D99-4642.
...of criminal activity. See § 901.151, Fla.Stat. (1997); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989). A mere feeling or belief that criminal activity is under way is insufficient. See Carter v. State, 454 So.2d 739 (Fla. 2......