STATE OF FLORIDA, APPELLANT,
v.
HERBERT LEE HUGHES, AND JERRY WILLIAM TAMLIN, APPELLEES

Fla. 1st DCA | 1990-05-29
Nos. 89-889, 89-990
ERVIN, J., and THOMPSON, FORD L. (Ret.), Associate Judge, concur.
562 So. 2d 795 Florida District Court of Appeal, First District (1990) Caution
Cited by 13 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The State appeals a trial court's suppression of cocaine discovered in appellees' vehicle during a warrantless observation by police officers. The court reverses, holding that the officers' initial approach constituted a consensual encounter rather than a seizure, and that once cocaine was plainly visible through the car window, the officers were entitled to seize it without a warrant.


Holding

The initial encounter was a lawful consensual encounter, not a seizure, because the appellees were not physically detained, ordered to stop, or held in any manner, and the officers communicated nothing indicating the appellees were not free to leave. Once the officers were lawfully positioned outside the vehicle and plainly observed the cocaine through the open window with a flashlight, they were entitled to seize it without a warrant.


Headnotes

[1] A consensual encounter between police and a citizen does not trigger Fourth Amendment protections when a reasonable person would feel free to terminate the encounter and…

[2] A seizure occurs when a show of official authority makes a reasonable person believe they are not free to leave.

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Key Quotes

“A consensual encounter occurs when a police officer approaches a citizen and interacts in a manner such that a reasonable person would believe he was free to terminate the encounter and leave.”

Establishes the legal standard for distinguishing consensual encounters from seizures that trigger Fourth Amendment protections.

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Facts & Procedural History

In February 1989, Officers Brown and Brannon, on routine patrol in a drug-dealing area of Jacksonville at approximately 1:30 A.M., observed appellees …

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

The State of Florida appeals from an order of the trial court suppressing as evidence the cocaine seized from the appel-lees’ automobile. We reverse.

In February, 1989, officers Brown and Brannon were on routine patrol in a known drug-dealing area of Jacksonville. At approximately 1:30 A.M., the officers saw appellees in a 1974 VW “Bug” legally parked on a public street. The officers did not observe any sign of illegal activity and the state concedes that there was no ground for stop or detention. The officers' suspicions were aroused, however; when they noted that the appellees seemed to become very nervous upon seeing the officers.

Officer Brannon pulled his patrol car behind appellees’ vehicle and stopped approximately five feet behind the vehicle. Bran-non left his headlights on, exited his car and walked over to the passenger side while Officer Brown walked over to the driver’s side. The window on the passenger side was down and Officer Brannon shined his flashlight inside and observed on the floorboard crack cocaine, a substance with which he was familiar. Although there was some conflict between the two officers’ testimony as to what they said to the appellees, the testimony was consistent that the officers said nothing to the appel-lees prior to Brannon’s shining his flashlight into the car and observing the cocaine.1 Neither appellee testified.

In Florida v. Royer, 460 U.S. 491, 498-499, 103 S.Ct. 1319, 1324-25, 75 L.Ed.2d 229, 236-237 (1983), the Supreme Court recognized three methods by which the police may encounter citizens. The first is known as a “consensual encounter” in which the officer needs no basis for approaching a person in a public place, identifying himself as an officer, and asking questions. The second is a “temporary detention” which requires a showing that the officer have an “articulable suspicion” that the person has committed or is about to commit a crime. The third is a formal arrest which must be based upon the more traditional principles of “probable cause.”

The state acknowledges that prior to seeing the cocaine in the car, the officers had neither probable cause nor an articulable suspicion of criminal activity. But the state asserts that the initial contact which occurred prior to the sighting of the cocaine was a mere consensual encounter and that when the officer saw the cocaine, he was justified in ordering the appellees out of the vehicle and seizing the cocaine. The distinction between a consensual encounter and a seizure was discussed in Jacobson v. State, 476 So. 2d 1282, 1285 (Fla.1985):

A consensual encounter occurs when a police officer approaches a citizen and interacts in a manner such that a reasonable person would believe he was free to terminate the encounter and leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Fourth amendment protections are not triggered.

While an officer, like any other citizen, is free to approach someone and engage him in conversation, there comes a point when the citizen approached is no longer free to decline to converse with the officer. This point, when fourth amendment protections are triggered, occurs when there is “a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ ” Florida v. Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.)).

The appellees assert that under the intimidating circumstances of the instant case, the functional equivalent of a “stop” occurred. We disagree. The appellees were not physically detained, ordered to stop, or held in any manner. McCreary v. State, 538 So. 2d 1377 (Fla. 1st DCA 1989), upon which the trial court apparently relied2, is distinguishable. There, this court referred to the officers’ actions of ordering McCreary out of the car in finding that an investigatory stop had occurred. Such actions by the officers prior to observing the cocaine are absent from the instant case.

In J.C.W. v. State, 545 So. 2d 306 (Fla. 1st DCA 1989), J.C.W., a female juvenile, was walking with a male whom the police suspected of carrying crack cocaine. The officers were suspicious of her because of their knowledge that drug dealers often used juveniles to carry their drugs for them. The court stated:

[Officer] Crumpler’s first course of action was to direct the male suspect to the patrol car and conduct a pat-down search. No narcotics were found on his person. Crumpler then stopped the appellant, who at that point had walked approximately 15 feet away. He inquired as to her name, age, and address, and then “went into the reason why she was being stopped, the mule idea.” According to Crumpler, he then asked appellant “if it would be okay if [he] searched her for any illegal narcotics,” appellant consented, then reached into her top left-hand shirt pocket for what appeared to be a napkin. Crumpler stopped appellant’s hand and removed the napkin, and found it to contain a small bag of crack cocaine.

The facts in the instant case do not indicate that Officer Crumpler’s encounter with the appellant was so forceful, intimidating, or oppressive that a reasonable person would have believed she was not free to leave, and do not include any of the threatening or coercive indicia of seizure outlined in U.S. v. Mendenhall. The appellant was not physically detained, ordered to stop, or held in any manner. 545 So. 2d at 306, 307. See also McLane v. Rose, 537 So. 2d 652 (Fla. 2nd DCA 1989); State v. G.H., 549 So. 2d 1148 (Fla. 3rd DCA 1989); State v. Simons, 549 So. 2d 785 (Fla. 2nd DCA 1989); Lightbourne v. State, 438 So. 2d 380 (Fla.1983).

The appellees were not stopped, physically detained or held in any manner. The officers did not do or say anything to communicate to appellees that they were not free to go. Although the circumstances involved in this kind of encounter may well be somewhat intimidating to those of heightened sensibilities, that is true of many citizen encounters, including the ones which were involved in the above cited eases. Nevertheless, to disallow the conduct of the officers in the instant case would unduly curtail legitimate investiga tive activities. See United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Lightbourne, 438 So. 2d at 388.

The officers, therefore, having properly situated themselves outside the appel-lees’ automobile in such a way that they, with the aid of a flashlight, were able to clearly see the crack cocaine on the floorboard of the vehicle, were entitled to lawfully seize the cocaine without a warrant. State v. Ashby, 245 So. 2d 225 (Fla.1971); State v. Coleman, 502 So. 2d 13 (Fla. 4th DCA 1986); State v. Milmoe, 541 So. 2d 718 (Fla. 4th DCA 1989); State v. Hall, 352 So. 2d 940 (Fla. 1st DCA 1977); United States v. Lara, 517 F. 2d 209 (5th Cir.1975). 1 LaFave, Search and Seizure (2d ed.), § 2.2(b); 14 Fla.Jur.2d, Criminal Law, § 502.

REVERSED.

ERVIN, J., and THOMPSON, FORD L. (Ret.), Associate Judge, concur. . Officer Brannon testified that he did not say anything to appellees prior to ordering them out of the car. Officer Brown, on the other hand, testified that Brannon, after shining his flashlight into the car, asked appellees what they were doing, to which they replied, "We’re sitting here not doing anything wrong.”

. The trial court’s abbreviated order cited no authorities or rationale. However, during arguments on the motion to suppress, the court’s comments reflect its reliance upon McCreary.


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Citator

Cited By

  • Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006)
    …orm a consensual encounter into an investigatory stop); State v. Boone, 613 So. 2d 560 (Fla. 2d DCA 1993) (officer’s actions in shining flashlight in the direction of defendant did not transform the encounter into an unlawful stop); State v. Hughes, 562 So. 2d 795 (Fla. 1st DCA 1990) (action of officers in approaching defendant’s parked vehicle and shining flashlight inside was not the functional equivalent of a stop). In some instances, however, if a spotlight or flashlight is utilized in conjunction with o…
  • State v. Robinson, 740 So. 2d 9 (Fla. 1st DCA 1999)
    …e State under these circumstances. United States v. Edwards, 898 F. 2d 1273, 1276 (7th Cir. 1990) (in consensual encounter, “the degree of suspicion that is required is zero”); State v. Albritton, 664 So. 2d 1049 (Fla. 2d DCA 1995); State v. Hughes, 562 So. 2d 795, 796 (Fla. 1st DCA 1990) (officer needs no basis for approaching individual in public place, identifying himself as an officer, and asking questions). The Deputy’s Search of Robinson In the interest of assuring, on remand, a complete resolution of…
  • State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010)
    …vehicle and defendant subsequently exited vehicle); State v. Wimbush, 668 So. 2d 280, 281-82 (Fla. 2d DCA 1996) (encounter was consensual where officer illuminated car’s interior with spotlight and asked driver for identification); State v. Hughes, 562 So. 2d 795, 797-98 (Fla. 1st DCA 1990) (officers approaching defendant’s parked vehicle and shining flashlight inside was not functional equivalent of a stop). Like these courts, we find that the initial encounter in this case was consensual as well. This cas…

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Authorities Cited (14 total)

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