KELVIN DAVID MCCLAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McClain was convicted of possessing a firearm as a convicted felon after officers seized a gun during a warrantless stop. The court reversed the conviction, holding that the officers lacked reasonable suspicion to stop McClain based solely on his attempt to avoid police contact.
The court held that the initial stop was improper and reversible error occurred. The officers lacked reasonable suspicion to stop McClain because avoidance behavior alone—even when taken at its most insidious—cannot justify a seizure; more than bare suspicion of criminal activity is required.
[1] A police encounter rises to the level of a Fourth Amendment seizure when, in view of all the circumstances, a reasonable person would believe they are not free to leave.
[2] Police actions that restrain a citizen's liberty through physical force or a show of authority constitute a seizure.
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Join FLexlaw to unlock all legal intelligence“in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave”
Establishes the test for when a police encounter rises to the level of a constitutional seizure requiring Fourth Amendment protection.
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Join FLexlaw to unlock all legal intelligenceA Jacksonville sheriff's detective noticed McClain and a companion enter and re-enter a store, then emerge and walk away. When the pair crossed the st…
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SHIVERS, Judge.
McClain pled no contest to a charge of possession of a firearm by a convicted felon, preserving his right to appeal the trial court’s denial of his motion to suppress the weapon. Because McClain is correct that the firearm was unlawfully seized, we reverse his conviction.
A Jacksonville sheriff’s detective was patrolling in his unmarked car through the west side of the city in the early afternoon when he noticed McClain and a companion. The pair had walked out of a store but then turned around and entered it again. The detective later said he thought he might have “spooked them,” so he radioed for assistance and two officers in another car responded. Meanwhile, McClain and his companion emerged from the store and started walking down the sidewalk on the detective’s side of the street, approaching him. But before they reached him, they crossed the street and continued on the other sidewalk. The officer said this action “gave me the impression they were avoiding me,” and that “at this time I really thought they were up to something.”
The detective maneuvered his car behind them, and the backup police car fell in behind him. By this time, the officer said, the pair was walking “briskly ... at a pretty good pace.” When they rounded a corner, the detective sped ahead and pulled up in front of them. The two reversed direction and re-rounded the corner, where they were met by the backup officers. An eventual search of McClain revealed the gun on which his conviction was based.
In this appeal, McClain urges that the weapon should have been suppressed because the initial stop was improper or because the subsequent detainment and search were improper. We find reversible error was committed on the first point, so we will not address the remaining issues.
Initially the state argues that the incident did not amount to a “police stop” but was merely an “encounter” which does not-call up the protection of the Fourth Amendment. See United States v. Wylie, 569 F. 2d 62 (D.C.Cir.1977); State v. Cahill, 388 So. 2d 354 (Fla.2d DCA 1980). The detention of a citizen does not take on constitutional dimension unless “in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
However, in view of the fact that the officers stalked these suspects, headed them off at the pass and rounded them up, the state’s argument is without merit. It is cléar that the officers’ action “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” 446 U.S. at 552, 100 S.Ct. at 1876, quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). In short, there was a seizure here.
To sustain their stop of McClain the officers were required to have a reasonable suspicion — well founded, articulable and based on objective facts — that he was involved in criminal activity. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). See generally Robinson v. State, 388 So. 2d 286 (Fla. 1st DCA 1980).
However, the detective here said he stopped McClain and his companion only because they seemed to be avoiding him.
We hold that under the circumstances of this case, McClain’s behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to a reasonable suspicion that he was engaged in criminal activity. Although we know of no case in which a court has been asked to decide if “pure police avoidance behavior” may justify stop, our decision today is in accord with other opinions which hold that more than a “bare suspicion” of criminal activity is required. See Coladonato v. State, 348 So. 2d 326 (Fla.1976); Stanley v. State, 327 So. 2d 243 (Fla. 2nd DCA 1976); Vollmer v. State, 337 So. 2d 1024 (Fla. 2nd DCA 1976); Parker v. State, 363 So. 2d 383 (Fla. 3rd DCA 1978).
Accordingly, judgment and sentence are REVERSED.
ROBERT P. SMITH, Jr., C. J., and McCORD, J., concur.
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Cited By (16 total)
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Gipson v. State, 537 So. 2d 1080 (Fla. 1st DCA 1989)…d [*1082] 698 (Fla. 3d DCA 1987) (running upon sighting police in a high crime area); Jackson v. State, 319 So. 2d 617 (Fla. 1st DCA 1975) (ending conversation with another individual and walking briskly in the opposite direction); McClain v. State, 408 So. 2d 721 (Fla. 1st DCA 1982) (police stopped defendant only because he seemed to be avoiding them as he walked down the street); Mosley v. State, 519 So. 2d 58 (Fla. 2d DCA 1988) (defendant, in a high crime area, after talking with a known drug dealer, walke…
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Cobb v. State, 511 So. 2d 698 (Fla. 3d DCA 1987)…ea at early morning hour plus flight). Nevertheless, flight, standing alone, will not justify either such a belief or stop.1 See Wilson v. State, 433 So. 2d 1301 (Fla. 2d DCA 1983); R.B. v. State, 429 So. 2d 815 (Fla. 2d DCA 1983); McClain v. State, 408 So. 2d 721 (Fla. 1st DCA 1982); Kearse v. State, 384 So. 2d 272 (Fla. 4th DCA 1980); Jackson v. State, 319 So. 2d 617 (Fla. 1st DCA 1975). See also W. LaFave, Search and Seizure § 9.3(c), at 448-51 (2d ed. 1987). That the defendant in the present case ran when…
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Wright v. State, 418 So. 2d 1087 (Fla. 1st DCA 1982)…y the U.S. Court of Appeals for the District of Columbia, a court generally regarded as somewhat of a trend-setter, this concept is explained and referred to as a “contact.” Gomez v. Turner, 672 F. 2d 134 (D.C. Cir. 1982); see also McClain v. State, 408 So. 2d 721, 722 (Fla. 1st DCA 1982) (referring to this concept as an “encounter”); Schlanger v. State, 397 So. 2d 1028, 1029 (Fla. 3d DCA 1981), rev. denied, 407 So. 2d 1105 (Fla.) (“cooperative encounter”); Login v. State, 394 So. 2d 183, 187 (Fla. 3d DCA 198…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- United States v. Mendenhall, 446 U.S. 544 (U.S. 1980)
- Brown v. Texas, 443 U.S. 47 (U.S. 1979)
- Coladonato v. State, 348 So. 2d 326 (Fla. 1977)
- United States v. Wylie, 569 F.2d 62 (D.C. Cir. 1977)
- Lucinda Stratton v. McQUEEN, 337 So. 2d 1024 (Fla. 2d DCA 1976)
- Stanley v. State, 327 So. 2d 243 (Fla. 2d DCA 1976)
- Robinson v. State, 388 So. 2d 286 (Fla. 1st DCA 1980)
- Parker v. State, 363 So. 2d 383 (Fla. 3d DCA 1978)
- State v. Cahill, 388 So. 2d 354 (Fla. 2d DCA 1980)