PERCY BOWE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Percy Bowe appeals his conviction for trespass and cocaine possession, challenging the denial of his motion to suppress evidence. The court held that Officer Kinchen's order for Bowe to open his fist constituted an illegal seizure that violated his Fourth Amendment rights, requiring suppression of the cocaine evidence and reversal of his conviction.
The court held that although the initial encounter was consensual, it became an illegal seizure when the officer ordered Bowe to open his fist without reasonable suspicion that it contained a weapon. The cocaine evidence should have been suppressed as the fruit of an unlawful seizure.
[1] A police officer's order to a suspect to open a closed fist constitutes a seizure when the officer does not believe the fist contains a weapon and the suspect is not free…
[2] Physical evidence discovered as a result of an illegal seizure must be suppressed.
Previewing 2 of 4 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“We hold that although the initial encounter between Bowe and Officer Kinchen was consensual, it became an illegal seizure when the officer ordered Bowe to open his fist.”
Establishes the core holding that the consensual encounter crossed the line into unlawful seizure upon the officer's demand to open the fist.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOfficer Kinchen responded to a HUD housing project after receiving complaints about individuals illegally present and possibly selling narcotics. He e…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Percy Bowe (Bowe), appeals the lower court’s final judgment of conviction and sentence following entry of a plea reserving the right to appeal the denial of his motion to suppress.
City of Miami Police Officer Reginald Kin-chen testified that on July 17, 1996, he responded to a HUD housing project for single mothers and their children, in reference to individuals on the first and second floors who were not supposed to be there and were possibly selling narcotics. The police had received numerous complaints regarding young black males that had “taken over” the apartment complex and/or were distributing narcotics there. The complex was a three story building surrounded by a wire fence with two metal signs posted on the first floor that say: “No trespassing. No Loitering. No gambling. No narcotics. Will be arrested by the City of Miami Police Department.” Officer Kinchen testified that the sign goes on to say that failure to leave the premises “after warning” may result in arrest.
Officer Kinchen saw Bowe in the second floor hallway with two other individuals, who ran after a male yelled “nine-nine” — a code for “police.” Bowe did not run and instead turned and walked down the stairs toward the police. Officer Kinchen said, “Excuse me sir,” and Bowe stopped. He asked Bowe his name and reason for being in the building. Bowe responded with a name he could not spell and claimed he was visiting a lady in apartment 25 on the third floor, but the officer knew that apartment 25 was on the second floor. Bowe appeared extremely nervous and aggressive and closed his right hand into a fist. Officer Kinchen told Bowe to relax his fist, as he was concerned that he might be struck. Bowe did not comply. The officer again ordered Bowe to relax and open his fist. Bowe opened his hand exposing a pack of cocaine rock and asked the officer to give him a break as he would lose his job if he went to jail. Officer Kinchen then arrested Bowe for trespass of a structure and possession of cocaine.
On cross-examination, Officer Kinchen testified that while men cannot live in the apartment complex, it is not illegal for them to be there. He acknowledged he did not see Bowe commit any crime.
We hold that although the initial encounter between Bowe and Officer Kinchen was consensual, it became an illegal seizure when the officer ordered Bowe to open his fist. The officer candidly admitted that he did not believe Bowe’s closed fist contained a weapon; that his instruction to open the fist was a “demand,” and that Bowe was not free to leave. Under these facts we are compelled to conclude that the physical evidence contained in Bowe’s fist should have been suppressed. Gipson v. State, 667 So. 2d 418 (Fla. 5th DCA 1996); Mayhue v. State, 659 So. 2d 417 (Fla. 2d DCA 1995); Shackelford v. State, 579 So. 2d 306 (Fla. 2d DCA 1991); Sanchez v. State, 516 So. 2d 1062 (Fla. 3d DCA 1988); Fortney v. State, 510 So. 2d 967 (Fla. 5th DCA 1987).
We reverse and remand with instructions to discharge the defendant.
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D.N. v. State, 805 So. 2d 63 (Fla. 3d DCA 2002)…. 3d 10, 12-13 (3d Cir.1997) (officer could order passenger to remain in car with hands in air); Warr v. State, 580 N.E. 2d 265, 266-68 (Ind.Ct.App.1991) (officer could order passenger to place hand in officer’s view).4 D.N. relies on Bowe v. State, 720 So. 2d 1083 (Fla. 3d DCA 1997), but that case does not involve a traffic stop to which Maryland v. Wilson applies. [*67] Finally, we point out the officer in this case did not perform a pat down or frisk. D.N. was told simply to get out of the car — clearly per…
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State v. Mack, 829 So. 2d 995 (Fla. 3d DCA 2002)…PER CURIAM. Affirmed. See Bowe v. State, 720 So. 2d 1083 (Fla. 3d DCA 1997); Evans v. State, 546 So. 2d 1125 (Fla. 3d DCA 1989).…
Authorities Cited
- Shackelford v. State, 579 So. 2d 306 (Fla. 2d DCA 1991)
- Mayhue v. State, 659 So. 2d 417 (Fla. 2d DCA 1995)
- Gipson v. State, 667 So. 2d 418 (Fla. 5th DCA 1996)
- Goldstein v. Mayling De La Rosa, 510 So. 2d 967 (Fla. 4th DCA 1987)
- Sanchez v. State, 516 So. 2d 1062 (Fla. 3d DCA 1988)
- First Fla. Leasing, Inc. v. Watson, 516 So. 2d 1062 (Fla. 3d DCA 1987)