JOSEPH PATRICK BARNA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant was stopped by police in a parking lot and consented to a search that revealed cocaine and marijuana. The court reversed the denial of the motion to suppress, finding the initial stop was unlawful and the consent was not clear and convincing evidence sufficient to cure the constitutional violation.
The court held that the police stop was unlawful investigatory stop rather than a consensual police-citizen encounter because no reasonable person would have felt free to terminate the contact. The subsequent search was unlawful absent clear and convincing proof of valid consent, and the State failed to carry this burden.
[1] A police stop is unlawful when officers lack reasonable suspicion to believe criminal activity is occurring.
[2] A consensual police-citizen encounter requires only minimal police contact, and a reasonable person must feel free to leave.
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Join FLexlaw to unlock all legal intelligence“During a consensual police-citizen encounter, which involves only minimal police contact, a citizen may choose whether or not to comply with the officer's request, and a reasonable person would feel free to leave.”
Establishes the legal standard for distinguishing a consensual encounter from an investigatory stop
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Join FLexlaw to unlock all legal intelligenceTwo police officers observed defendant and another man standing in a parking lot behind a bar at 11:30 p.m. The officers approached them, stated they …
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KLEIN, Judge.
Defendant filed a motion to suppress evidence of cocaine and marijuana found in his possession. The trial court denied the motion and defendant entered a plea reserving the right to appeal the denial of the motion. We reverse because defendant was unlawfully stopped and there was no clear and convincing evidence that he consented to a search.
Two police officers observed defendant and another man standing in the rear corner of a public parking lot behind a bar at 11:30 p.m. They appeared to be smoking and talking. The officers approached them and one of the officers said to them:
The fact there’s drug activity in the parking lot, ear theft, auto burglaries, that’s what we are checking for. You two gentlemen have been standing there for quite some time. We were going to investigate a little further. The officers asked both men for their identification, received it, and held on to it while one officer began running a teletype check. The other officer asked defendant why he was nervous, sweating and shaking. He also asked him if he had any drugs or weapons, and defendant responded that he did not, lifted his hands above his head and said, “go ahead and search me if you want.” The officer searched him, found a cut straw, a small baggy of cocaine, and the remains of a marijuana cigarette in his pockets.
The State argues that defendant volunteered to be searched during a consensual encounter with the police. We disagree.
During a consensual police-citizen encounter, which involves only minimal police contact, a citizen may choose whether or not to comply with the officer’s request, and a reasonable person would feel free to leave. Popple v. State, 626 So. 2d 185 (Fla.1993). We conclude that no reasonable person would have believed he was free to terminate this contact and that this was an investigatory stop rather than a mere consensual police-citizen encounter. The State makes no argument that this was a lawful investigatory stop, and we conclude it was not. Since the investigatory stop of defendant was unlawful, the subsequent search of defendant was also unlawful, absent clear and convincing proof that defendant consented to the search, and that this consent was not a product of the unlawful police activity. Weaver v. State, 548 So. 2d 1198 (Fla. 4th DCA 1989); Norman v. State, 379 So. 2d 643 (Fla.1980). We determine that the State has failed to carry this burden, and therefore reverse the order denying the motion to suppress and the judgment and sentence.
STONE, J., concurs.
DELL, C.J., dissents without opinion.
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Golphin v. State, 945 So. 2d 1174 (Fla. 2006)…Mr. Smith's cigarettes and money away from him and did not ask to perform an oral cavity search until he had possession of this property. Most reasonable people would not feel free to walk away from an officer who had their money."); Barna v. State, 636 So. 2d 571, 572 (Fla. 4th DCA 1994) (holding that contact was an unlawful investigatory stop where police officers informed the defendant that they were "investigating" due to his presence and that of a companion in a parking lot known for criminal activity an…
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Brye v. State, 927 So. 2d 78 (Fla. 1st DCA 2006)…senger he was suspected of transporting narcotics, and asked passenger to accompany them to adjacent airport storage room while retaining his ticket, driver’s license, and luggage throughout the encounter); Popple, 626 So. 2d at 186; Barna v. State, 636 So. 2d 571 (Fla. 4th DCA 1994). [*84] The trial court erred in basing its denial of the motion to suppress on the materially distinguishable facts in our decisions in Ferrell, 705 So. 2d at 1051, and Jones, 658 So. 2d at 178. In Ferrell, an officer on foot pat…
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O.A. v. State, 754 So. 2d 717 (Fla. 4th DCA 1998)…a purpose and that leaving would have made the officer’s act of calling in the information futile. I see no difference between these facts and a situation in which the officer tells the person to wait while he radios in the name. In Barna v. State, 636 So. 2d 571 (Fla. 4th DCA 1994), defendant had been standing in parking lot behind a bar at night and the officers approached and told him that there had been drug activity and other crime in the parking lot and that they were going to “investigate a little fur…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tedd J. Popple v. State, 626 So. 2d 185 (Fla. 1993)
- Norman v. State, 379 So. 2d 643 (Fla. 1980)
- Barnett Bank OF Palm Beach Cnty. v. Dade Sav. & Loan Ass'n, 548 So. 2d 1198 (Fla. 4th DCA 1989)
- Amos B. Weaver v. State, 548 So. 2d 1198 (Fla. 4th DCA 1989)