STATE OF FLORIDA, APPELLANT,
v.
M.J., A CHILD, APPELLEE
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Florida appealed the trial court's order suppressing evidence obtained from a search of M.J., a minor, arguing that M.J.'s consent to the search was voluntary and based on probable cause. The appellate court reversed the suppression order, finding the initial encounter consensual, the consent voluntary, and the search lawful under the plain feel doctrine.
The court held that the initial encounter was wholly consensual, M.J.'s consent to the search was spontaneous and voluntary, and even if the subsequent escort to the cruiser constituted a detention, that detention was not illegal because the patdown provided probable cause to arrest and search under the plain feel doctrine.
[1] An initial encounter between a police officer and a citizen is consensual if the officer does not use words or force that would convey to a reasonable person the impressi…
[2] An officer may engage a citizen in conversation without a founded suspicion of criminal activity.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An encounter remains consensual unless the police prevent a citizen from exercising the right to walk away, whether by using intimidating language, displaying a weapon, touching the person, or approaching in a group of officers.”
Establishes the legal standard for determining whether an encounter is consensual and supports the finding that the initial encounter here was wholly consensual.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAt 1:00 a.m. on January 18, 1995, Officer Lefkimiotis encountered M.J. standing near a stairwell in an apartment building known for drug trade and pos…
The full statement of facts, procedural history, and disposition for this case are member content.
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FRANK, Acting Chief Judge.
The state appeals from the trial court’s order granting M.J.’s motion to suppress. The motion was grounded upon a contention that M.J.’s consent to a search was neither voluntary nor based upon probable cause. We reverse.
In unrefuted testimony, Officer Spearden D. Lefkimiotis of the St. Petersburg Police Department described th'e events that occurred at 1:00 a.m. on January 18,1995, at an apartment building known for drug trade. Because the building was clearly posted with “No Trespassing” and “No Loitering” signs, the officer’s attention was drawn to a group of three men and one woman standing by the stairwell. As Lefkimiotis, who was in uniform and who was driving a marked patrol car, pulled up to the group, M.J. started to walk away. Lefkimiotis then asked M.J. if he would mind speaking with him, so M.J. turned around and walked back toward the officer. When questioned whether he lived at the apartment building, M.J. responded that he was just “hanging out, you know, chilling.” Because of the well-known reputation of the area for drug sales, the officer asked M.J. if he “had anything illegal on him,” to which M.J. immediately replied, “No, sir, you can go ahead and check me if you want to.”
Lefkimiotis advised M.J. that he would be charged if anything illicit were found, and M.J. indicated that he understood. Lefki-miotis then patted M.J.’s pockets, discovering an object that felt like a crack pipe. The officer then walked with M.J. over to the cruiser and again warned him that he would be charged if he found contraband. After M.J.’s second acknowledgment that he understood the consequences of the search, the officer reached into M.J.’s pocket and pulled out a small glass pipe used for smoking crack cocaine. Following Miranda warnings, M.J. agreed to talk to the officer and stated that his mother had died of a heart attack about a year previously, and he began smoking crack from depression over his mother’s death.
The initial encounter between the defendant and the officer was wholly consensual. 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 from exercising the right to walk away, whether by using intimidating language, displaying a weapon, touch ing the person, or approaching in a group of officers. See State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990).
In the peculiar circumstances of this case, it is clear that the defendant’s spontaneous and voluntary offer to allow the officer to “check” him extended from the initial encounter and patdown to the officer’s later act of reaching into M.J.’s pocket and withdrawing the crack pipe. This is so even though the officer, after feeling the crack pipe, but before he actually retrieved it from M.J.’s pocket, walked with M.J. over to a cruiser parked an unspecified distance away. Even if we were to find that Officer Lefki-miotis had actually detained M.J. by escorting him to the cruiser, that detention was not illegal. The consensual patdown had given the officer probable cause to arrest and search the defendant pursuant to the “plain feel” doctrine. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
Accordingly, the suppression order is reversed and this case is remanded for further proceedings.
ALTENBERND and QUINCE, JJ., concur.
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D.G. v. State, 714 So. 2d 644 (Fla. 4th DCA 1998)…, nor did he ask whether they minded approaching him to answer some questions. On the contrary, he ordered them to come over to him, using words of compulsion. See Clayton v. State, 616 So. 2d 615, 616-17 (Fla. 4th DCA 1993); see also State v. M.J., 685 So. 2d 1350 (Fla. 2d DCA 1996). Appellant having been detained without a founded suspicion prior to the officer uncovering evidence of a crime, the motion to suppress must be granted. We remand for further proceedings consistent with this opinion. KLEIN and G…
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Conyers v. State, 164 So. 3d 73 (Fla. 2d DCA 2015)…96 So. 2d 1218, 1220 (Fla. 2d DCA 1997). Without any extensive discussion and as an alternative holding, this court has previously held that the plain feel of a crack pipe during a lawful patdown can provide probable cause to arrest. State v. M.J., 685 So. 2d 1350 (Fla. 2d DCA 1996); see also Cole v. State, 727 So. 2d 280, 281 (Fla. 2d DCA 1999) (concluding that officer did not have probable cause to seize crack pipe based on plain feel where officer “did not testify that it was immediately apparent to him th…
Authorities Cited
- Minnesota v. Dickerson, 508 U.S. 366 (U.S. 1993)
- State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990)
- State v. Jenkins, 616 So. 2d 173 (Fla. 2d DCA 1993)