MICHAEL JAMES PERKO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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This concurring opinion questions the validity of consent to search when an officer retains a person's identification, suggesting such retention constitutes a seizure and renders subsequent consent potentially invalid.
The concurring justice agrees that evidence from the search must be suppressed, arguing that retaining identification constitutes a seizure and that consent given under such circumstances is not truly voluntary.
An officer retained the appellant's identification and asked to search his property, to which the appellant responded affirmatively. The officer found…
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PER CURIAM.
Perko was convicted of possession of cocaine and possession of drug paraphernalia. He entered a no contest plea, reserving the right to appeal the denial of a motion to suppress.
In the course of a consensual encounter, a sheriffs deputy obtained Perko’s consent to conduct a search of his person after obtaining, but before returning, his driver’s license while another deputy conduct ed a warrant check. Under these circumstances, consent was obtained after Perko had been effectively seized. Therefore, the search was unlawful and the fruits thereof must be suppressed. Baez v. State, 814 So. 2d 1149, 1153 (Fla. 4th DCA), rev. granted, 835 So. 2d 269 (Fla.2002); Barna v. State, 636 So. 2d 571, 572 (Fla. 4th DCA 1994). His conviction and sentence are, therefore, reversed on the authority of Barna and Baez.
We note conflict with Golphin v. State, 838 So. 2d 705 (Fla. 5th DCA 2003), in which the Fifth District certified conflict with Baez.
As to the other issue raised on appeal, we find no reversible error or abuse of discretion. We remand for further proceedings.
STONE and TAYLOR, JJ., concur. KLEIN, J., concurs specially with opinion.
KLEIN, J.,
concurring specially.
In this case the officer, while retaining appellant’s identification, asked him if he had any weapons or other illegal items on him, to which appellant responded “no.” The officer then said “do you mind if I check your property,” to which appellant responded “go ahead,” and the officer found the crack pipe.
Our sister court, which upheld a search under these circumstances, did so under the assumption that a person can “withdraw his consent at any time by, for example, asking that his license be immediately returned.” Golphin v. State, 838 So. 2d 705, 707 (Fla. 5th DCA 2003). This, of course, presupposes that the person knows the law of search and seizure. I, for one, despite my law school education, had no idea there was such a thing as a consensual encounter until I became a judge. Because police officers are, in our society, charged with maintaining order and enforcing the law, it would never have occurred to me that I could insist on the return of my license before the officer was finished with it. Nor would it occur to any other person unversed in search and seizure law.
As Professor LaFave has written “[i]t is nothing more than fiction to say that all of these subjects have consented to the confrontation.” Wayne R. LaFave, Search and Seizure — A Treatise on the Fourth Amendment § 9.3(a), at 95-96 (3d ed.1996).
In addition to the cases we relied on in Baez, appellant has cited several recent cases from other states in which the courts have refused to go along with this charade. Salt Lake City v. Ray, 998 P. 2d 274 (Utah Ct.App.2000); Piggott v. Commonwealth, 34 Va.App. 45, 537 S.E. 2d 618 (2000). As the court observed in State v. Daniel, 12 S.W. 3d 420, 427 (Tenn.2000):
Without his identification, Daniel was effectively immobilized. Abandoning one’s identification is simply not a practical or realistic option for a reasonable person in modern society. [Florida v.] Royer, 460 U.S. at 501-02, 103 S.Ct. at 1326 [75 L.Ed.2d 229 (1983)]; United States v. Jordan, 294 U.S.App.D.C. 227, 958 F. 2d 1085, 1087 (D.C.Cir.1992). Contrary to the State’s assertion, when an officer retains a person’s identification for the purpose of running a computer check for outstanding warrants, no reasonable person would believe that he or she could simply terminate the encounter by asking the officer to return the identification. Accordingly, we hold that a seizure within the meaning of the Fourth Amendment and Article I, section 7 occurred when Officer Wright retained Daniel’s identification to run a computer warrants check. I thus agree that the evidence from the search in this case must be suppressed.
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Golphin v. State, 945 So. 2d 1174 (Fla. 2006)…al encounters and detentions as well as the totality of the circumstances test for determining whether the defendant was detained. In accord with the out of state precedent, as well as the Fourth District Court of Appeal decision in Perko v. State, 874 So. 2d 666, 667 (Fla. 4th DCA 2004), dismissed as moot, 894 So. 2d 972 (Fla.2005), I conclude that Golphin was seized within the meaning of the Fourth Amendment when the officer retained his license to call in a warrants check on her portable radio. In Perko,…1 / 2
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State v. Baez, 894 So. 2d 115 (Fla. 2004)…person’s identification for the purpose of running a computer check for outstanding warrants, no reasonable person would believe that he or she could simply terminate the encounter by asking the officer to return the identification. Perko v. State, 874 So. 2d 666, 667 (Fla. 4th DCA 2004) (Klein, J., concurring specially). Although Justice Wells suggests that Baez made the wholly voluntary choice to remain because he never asked for his license back or attempted to leave, this is as much an indication of con…1 / 2
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Brye v. State, 927 So. 2d 78 (Fla. 1st DCA 2006)…rd of proof that Barna consented, and that his consent “was not a product of the unlawful police activity.” Id. The district court reversed the order denying the motion to suppress and reversed Barna’s judgment and sentence. See id.; Perko v. State, 874 So. 2d 666 (Fla. 4th DCA 2004) (reversing judgment and sentence because defendant’s consent to search of his person was obtained after he was “seized,” and search was unlawful where defendant consented to officer’s request to conduct search after officer obtai…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Florida v. Royer, 460 U.S. 491 (U.S. 1983)
- Golphin v. State, 838 So. 2d 705 (Fla. 5th DCA 2003)
- Baez v. State, 814 So. 2d 1149 (Fla. 4th DCA 2002)
- Barna v. State, 636 So. 2d 571 (Fla. 4th DCA 1994)
- United States v. Jordan, 958 F.2d 1085 (D.C. Cir. 1992)