STATE OF FLORIDA, APPELLANT,
v.
DWAYNE JENKINS, APPELLEE

Fla. 2d DCA | 1993-03-31
No. 92-00487
FRANK, A.C.J., and ALTENBERND, J., concur.
616 So. 2d 173 Florida District Court of Appeal, Second District (1993) Positive Treatment
Cited by 7 cases

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Holding

The court held that the encounter between the police officer and Jenkins did not constitute an unlawful detention or seizure under the Fourth Amendment.


Headnotes

[1] A police-citizen encounter is permissible and does not require suspicion of criminal activity when the citizen voluntarily agrees to stop and talk to the officer.

[2] A seizure of a person under the Fourth Amendment requires either physical force or submission to an assertion of authority.

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Facts & Procedural History

An officer observed Jenkins riding a bicycle with another bicycle in tow and initiated a consensual conversation. A radio check revealed the second bi…

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Opinion of the Court
PATTERSON, Judge.

PATTERSON, Judge.

The state appeals the trial court’s suppression of evidence on the basis that Jenkins was illegally detained. We reverse.

St. Petersburg Police Officer Paula Me-lanson testified that she was driving a marked cruiser on routine patrol when she observed Jenkins riding a bicycle with another bicycle in tow. Melanson pulled alongside Jenkins and asked him if he would mind stopping and talking to her. Jenkins responded that he would not mind. In response to Melanson’s inquiry, Jenkins explained that the second bicycle belonged to his friend, Joseph. Melanson then asked if she could look at the city license numbers on the bicycles. Jenkins did not object. A radio check of the license number of the second bicycle confirmed that it was stolen. Melanson arrested Jenkins. Sergeant David Barr, who accompanied Melan-son in the cruiser, corroborated Melanson’s testimony. He stated that Jenkins never indicated that he wanted to leave or that he did not wish to talk to them. He observed that the encounter was not confrontational and that Jenkins was cooperative.

Jenkins testified that he was riding on the sidewalk when the officers pulled into a driveway blocking his way. His attorney asked him if the police officers said anything in regard to his “staying put,” and Jenkins responded, “Not really. He didn’t say you got to stay here, but I felt you ain’t supposed to leave from a police officer.” He added that he wanted to leave but did not feel free to do so. On cross-examination, Jenkins conceded that he did not tell the officers he wanted to leave. In fact, nothing in his testimony directly contradicts the officers’ testimony, other than Jenkins’ statement that the offi cers blocked his path. The trial court concluded on those facts, that because the cruiser pulled into the Jenkins’ path, an unlawful detention occurred.

The court’s conclusion is not supported by the evidence. To the contrary, these facts demonstrate a permissible police-citizen encounter which does not require a suspicion of criminal activity. See Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); State v. Davis, 543 So. 2d 375 (Fla. 3d DCA 1989). The issue of whether the encounter escalated to a seizure of Jenkins within the meaning of the Fourth Amendment is governed by the rule set forth in California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Hodari D., the United States Supreme Court stated:

To constitute an arrest, however — the quintessential “seizure of the person” under our Fourth Amendment jurisprudence — the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient....

... The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

... An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.1

— U.S. at -, 111 S.Ct. at 1550-51. The Hodari D. court explained that the test for the existence of a “show of authority” is an objective one as defined in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Under Mendenhall, the citizen’s subjective perception that his liberty has been restricted is not determinative. Rather, it is whether the officer’s words and actions would have conveyed to a reasonable person that he or she was not free to leave.

The record before us is devoid of any testimony that the officers’ actions were coercive, oppressive or dominating; i.e., there was no “show of authority” to which Jenkins could “submit,” which would trigger a seizure of his person. The fact that the officers were in uniform, armed, and in a marked police cruiser in and of itself does not amount to a “show of authority.” See Thames v. State, 592 So. 2d 733 (Fla. 1st DCA), review denied, 599 So. 2d 1280 (Fla.1992). When the officers determined that the bicycle was stolen in the burglary of a residence, probable cause existed to arrest Jenkins. See Davis. Under the Hodari D./Mendenhall test, Jenkins’ subjective feeling that he was not free to leave is irrelevant.

Reversed and remanded.

FRANK, A.C.J., and ALTENBERND, J., concur. . In his dissent, Justice Stevens opines that this rule represents a new and narrow construction of the word "seizure” which departs from prior case law construing the Fourth Amendment. — U.S. at-, 111 S.Ct. at 1552 (Stevens, J., dissenting).


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Citator

Cited By

  • State v. Parrish, 731 So. 2d 101 (Fla. 2d DCA 1999)
    …st of whether a defendant acquiesced to authority, rather than consented to a search, is an objective one of “whether the officer’s words and actions would have conveyed to a reasonable person that he or she was not free to leave.” State v. Jenkins, 616 So. 2d 173, 173 (Fla. 2d DCA 1993) (quoting United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). In Jenkins, as in this case, the defendant never indicated to the officers that he wanted to leave, “the encounter was not confrontat…
  • State v. Crumpton, 676 So. 2d 987 (Fla. 2d DCA 1996)
    …person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Id. at 188. Our decisions predating Popple echo these fundamental principles. See, e.g., State v. Jenkins, 616 So. 2d 173 (Fla. 2d DCA), review denied, 623 So. 2d 494 (Fla.1993); State v. Boone, 613 So. 2d 560 (Fla. 2d DCA 1993); State v. DeCosey, 596 So. 2d 149 (Fla. 2d DCA 1992); State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991); State v. Wilson, 566 So. 2d 585 (Fl…
    1 / 3
  • State v. M.J., 685 So. 2d 1350 (Fla. 2d DCA 1996)
    …ensual. The officer used no words or force that would have conveyed to a reasonable person the impression that he was not free to leave. No testimony suggests that the officer’s utterances were “coercive, oppressive or dominating.” State v. Jenkins, 616 So. 2d 173, 174 (Fla. 2d DCA 1993). An officer can engage a citizen in conversation without a founded suspicion of criminal activity. See State v. Carley, 633 So. 2d 583 (Fla. 2d DCA 1994). An encounter remains consensual unless the police prevent a citizen fr…

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