STATE OF FLORIDA, APPELLANT,
v.
DANIEL L. CARLEY, APPELLEE
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The State appealed from a trial court's order suppressing evidence of a sawed-off shotgun found in a rental van. The appellate court reversed, holding that the officers' initial encounter with Carley was consensual, not a detention, and the gun was lawfully discovered in plain view, making the evidence admissible.
The court held that the encounter was consensual rather than a detention. The officers did not need founded suspicion to approach and speak with Carley, and requesting his driver's license and asking about the van did not transform the consensual encounter into a stop. The sawed-off shotgun was lawfully discovered in plain view, and the evidence was properly obtained.
[1] An encounter between a police officer and an individual is consensual when the individual is not seized and is free to leave.
[2] A police officer may approach and speak with an individual without a founded suspicion of criminal activity.
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Join FLexlaw to unlock all legal intelligence“An officer does not need a founded suspicion of criminal activity to approach and talk to someone.”
Establishes the foundational principle that officers can initiate consensual encounters without suspicion
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Join FLexlaw to unlock all legal intelligenceOfficer McAlevey spotted a rental van with a theft-matching description parked at 3:30 a.m. in a housing project. She approached Carley as he exited t…
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PATTERSON, Judge.
This appeal arises from the order which grants the appellee’s motion to suppress. The state argues that the appellee was not illegally detained, and therefore, evidence the officer found in plain view during the encoun ter should not have been suppressed. We agree and reverse.
On September 26, 1991, Officer McAlevey was aware that several rental vehicles had been stolen from the airport when she spotted a van with a rental tag parked in the College Hill Housing Project at 3:30 a.m. She called for a backup and then approached the appellee as he got out of the van. She said, “I just need to speak with you in reference to this van,” and asked the appellee for his driver’s license.
The backup officer, Officer Morman, asked the appellee if he had rental papers for the van. The appellee stated that they were in the van and gave Morman his consent to get them. Morman shined his flashlight inside the vehicle and saw a sawed-off shotgun protruding from under the seat. He placed the appellee under arrest and found a shotgun shell in the appellee’s right front pocket during a pat-down search.
The appellee was charged with possession of a short-barreled shotgun. He filed a motion to suppress, which the trial court granted on the ground that the evidence was found as a result of an illegal detention. We reverse since the officers and the appellee were involved in a consensual encounter, rather than a detention, when the sawed-off shotgun was discovered in plain view.
An officer does not need a founded suspicion of criminal activity to approach and talk to someone. State v. Raines, 576 So. 2d 896 (Fla. 2d DCA 1991). The officers’ actions of asking the appellee about the vehicle and for his driver’s license and rental papers did not transform the encounter into a stop. See State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991). “[Wjhile most citizens respond to a police request, the fact that they do so without being told they are free not to respond does not eliminate the consensual nature of their response.” State v. Simons, 549 So. 2d 785, 787 (Fla. 2d DCA 1989).
Officer Morman received the appel-lee’s consent to find the registration papers in the van. From outside the van, he saw the gun protruding from underneath the seat where the appellee had been sitting. The officer’s use of the flashlight did not violate constitutional principles. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); State v. Ecker, 550 So. 2d 545 (Fla. 2d DCA 1989). It merely enhanced the officer’s “plain view” of the gun. See State v. Heiser, 583 So. 2d 389 (Fla. 4th DCA), review denied, 593 So. 2d 1052 (Fla.1991). Once the gun was found, the officers were entitled to search the appellee incident to his arrest. Thus, the evidence was legally obtained during the encounter and should not have been suppressed.
Reversed and remanded.
HALL, A.C.J., and PARKER, J., concur.
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Vernell Holden v. State, 877 So. 2d 800 (Fla. 5th DCA 2004)…he use of a canine’s sense of smell is similar to an officer’s use of his eyes. The use of a canine unit during a consensual encounter is similar to an officer’s finding illegal items in plain-view during a consensual encounter. See State v. Carley, 633 So. 2d 533 (Fla. 2d DCA 1994) (reversing motion suppressing evidence where the officers and defendant were involved in a consensual encounter and a sawed-off shotgun was discovered in plain view). The order denying Holden’s motion to suppress is AFFIRMED. SH…
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State v. Wimbush, 668 So. 2d 280 (Fla. 2d DCA 1996)…nitial encounter. The car was parked on the access road to the Courtney Campbell Causeway at 3:00 a.m. The officers approached in their patrol car so that they could ask some questions, and this initial encounter was consensual. See State v. Carley, 633 So. 2d 533, 534 (Fla. 2d DCA 1994) (“An officer does not need a founded suspicion of criminal activity to approach and talk to someone.”). Although the trial court’s order does not contain any specific factual findings 1, the trial court apparently believed O…
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State v. Smith, 662 So. 2d 725 (Fla. 2d DCA 1995)…r’s arrest and the [*726] search of the automobile. In any event, we determine that the record amply supports a conclusion that a consensual encounter occurred in this case. See State v. Mitchell, 638 So. 2d 1015 (Fla. 2d DCA 1994); State v. Carley, 633 So. 2d 533 (Fla. 2d DCA 1994). . The state conceded at the hearing that there was no probable cause to search the automobile.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Texas v. Brown, 460 U.S. 730 (U.S. 1983)
- State v. Simons, 549 So. 2d 785 (Fla. 2d DCA 1989)
- State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991)
- State v. Ecker, 550 So. 2d 545 (Fla. 2d DCA 1989)
- State v. Heiser, 583 So. 2d 389 (Fla. 4th DCA 1991)
- State v. Raines, 576 So. 2d 896 (Fla. 2d DCA 1991)