STATE OF FLORIDA, APPELLANT,
v.
WILLIE JAMES FERRELL, APPELLEE
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The court held that a consensual encounter is not converted into an unlawful detention merely by an officer asking about criminal activity, absent indicia of coercion.
[1] A consensual encounter between law enforcement and an individual is not converted into an unlawful detention merely by an officer asking questions about criminal conduct,…
[2] The voluntariness of consent to a search is determined by the totality of the circumstances, including whether a reasonable person would have felt free to terminate the e…
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Join FLexlaw to unlock all legal intelligenceAn officer recognized a known cocaine user, approached him, and asked if he had weapons or drugs. The individual consented to a search, and the office…
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PER CURIAM.
The state challenges an order granting appellee Willie Ferrell’s motion to suppress. We agree with the state’s contention that the trial court’s ruling was based on a misapplication of the law and therefore we reverse.
The undisputed testimony at the hearing was from the arresting officer. Officer Pitts testified that he was on foot patrol near a hotel in a known high crime and drug area when he saw Ferrell, whom he recognized from previous contacts and knew him to be a cocaine user, standing on the hotel porch. Officer Pitts approached Ferrell and asked him if he had any weapons or drugs, or stolen TV’s or anything like that, to which Ferrell responded, “no I don’t, go ahead and search me”, spreading his legs and arms without being asked. The officer found crack cocaine in Ferrell’s shirt pocket. Officer Pitts testified that when he approached Ferrell, another officer was near him on the porch but not with him, and he used the same tone of voice with Ferrell as he was using during his testimony. In granting Ferrell’s motion to suppress, the trial court expressed its view that when law enforcement starts asking an individual about criminal conduct or activity, as opposed to innocuous questions regarding name, age, or where the individual is going, etc., a reasonable person does not conclude that he or she is free to leave, and therefore this consensual encounter was not voluntary.
The issue is whether, considering the totality of the circumstances, the consent was voluntary or there. was a consensual encounter in which a reasonable person would have felt free to terminate the encounter. See Voorhees v. State, 699 So. 2d 602 (Fla.1997); State v. Chang, 668 So. 2d 207 (Fla. 1st DCA 1996).
The trial court’s view regarding a question simply asking about criminal conduct does not comport with opinions from this district and others indicating that absent indicia of coercion or intimidating circumstances, such a question, alone, will not convert a consensual encounter into an unlawful detention. See, e.g., State v. Livingston, 681 So. 2d 762 (Fla. 2d DCA 1996) (officer asked defendant “you aren’t selling dope, are you”, to which defendant responded that he wasn’t and that what he had was “these and they’re not real”, handing the officer a tube, which was later determined to be cocaine); State v. Collins, 661 So. 2d 962 (Fla. 5th DCA 1995) (officer engaged in casual conversation with defendant and asked him if he had any guns, knives or drugs on him, and asked if he could search defendant, to which defendant consented); Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995) (officer asked whether defendant had any weapons, to which defendant responded he did not, and then officer asked defendant whether he could search him, to which defendant replied, “Yeah, I ain’t got nothin”); J.C.W. v. State, 545 So. 2d 306 (Fla. 1st DCA 1989) (officer asked defendant her name, age and address, then told her why she was being questioned [the mule idea] and asked her if it would be okay to search her for illegal narcotics, to which she consented).
Sub judice no evidence of indicia of force or intimidation was presented and therefore the trial court misapplied the law to the undisputed facts.
We recognize and distinguish a simple question about criminal activity from more intrusive types of questions not present in this case which have been held to be so coercive as to make a reasonable person believe he or she must comply. See, e.g., Popple v. State, 626 So. 2d 185 (Fla.1993) (holding that “[wjhether characterized as a request or an order” the act of directing a person to exit his vehicle “constituted a show of authority which restrained [appellant’s] freedom of movement because a reasonable person under the circumstances would believe that he should comply”); Williams v. State, 694 So. 2d 878 (Fla. 2d DCA 1997) (holding that while initial questions as to what defendant was doing behind a closed bar were permissible, subsequent request that defendant pull his waistband forward converted consensual encounter into detention); Doney v. State, 648 So. 2d 799, 801 (Fla. 4th DCA 1994) (holding that compliance with officer’s request that defendant spit out contents of his mouth was acquiescence to authority, rather than consent); Palmer v. State, 625 So. 2d 1303 (Fla. 1st DCA 1993) (holding that abandonment of a razor blade was product of illegal stop and thus involuntary because seizure occurred when officer told defendant to take his hands out of his pockets). REVERSED and REMANDED for proceedings consistent with this opinion.
MINER and WOLF, JJ., and SHIVERS, Senior Judge, concur.
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State v. Daile Lee Poole, 730 So. 2d 340 (Fla. 3d DCA 1999)…ould have believed that he or she was not free to leave and terminate the encounter with the police. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Voorhees v. State, 699 So. 2d 602, 608 (Fla.1997); State v. Ferrell, 705 So. 2d 1051, 1052 (Fla. 1st DCA 1998). Based upon the undisputed circumstances of this case, we agree with the state that the encounter was purely consensual in nature and that the evidence obtained was not the product of an unlawful search and seizure. Law en…
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Brye v. State, 927 So. 2d 78 (Fla. 1st DCA 2006)…cheek” written across it. Appellant indicated that it was his aspirin. When the deputy opened the container, he observed what (through his training and experience) appeared to be “crack” cocaine, and Appellant was arrested. Citing State v. Ferrell, 705 So. 2d 1051 (Fla. 1st DCA 1998), and Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995), the trial court denied the motion to suppress on the ground that an officer patrolling in a high-crime area can ask a citizen to produce identification without the incident…
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Brooks v. State, 745 So. 2d 1113 (Fla. 1st DCA 1999)…lights and siren. While Bates testified that he activated the lights as a safety precaution, a reasonable person under such circumstances would not have [*1114] believed he or she was free to leave and terminate the encounter. See State v. Ferrell, 705 So. 2d 1051, 1052 (Fla. 1st DCA 1998); Jones v. State, 658 So. 2d 178, 180 (Fla. 1st DCA 1995) (both stating that the question of whether there has been a consensual encounter requires a court to consider the totality of the circumstances surrounding the encoun…
Previewing 3 of 5 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)
- Voorhees v. State, 699 So. 2d 602 (Fla. 1997)
- Doney v. State, 648 So. 2d 799 (Fla. 4th DCA 1994)
- Garrett Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995)
- Pasley v. State, 625 So. 2d 1303 (Fla. 1st DCA 1993)
- State v. Livingston, 681 So. 2d 762 (Fla. 2d DCA 1996)
- J.C.W. v. State, 545 So. 2d 306 (Fla. 1st DCA 1989)
- Williams v. State, 694 So. 2d 878 (Fla. 2d DCA 1997)
- State v. Chang, 668 So. 2d 207 (Fla. 1st DCA 1996)
- Murgia v. State, 661 So. 2d 962 (Fla. 3d DCA 1995)