Pages 1-58

WHAT ARE GROUNDS FOR SUPPRESSION OF TANGIBLE EVIDENCE?     1

WHAT MUST MOTION CONTAIN?     1

WHAT PROCEDURAL CONSIDERATIONS APPLY?     1

General rules .  1                                                    
Is exclusion the appropriate remedy?    2           
Credibility     5                                                  
Majority U.S. Supreme Court opinions    7              
Delays in filing or in hearing   7
Power to reconsider     7
Preparation of orders    8
What are the steps at the hearing?       8
Standard of review      8

WHAT MUST THE DEFENDANT SHOW BEFORE THE STATE HAS TO PRESENT EVIDENCE?    13

That a validly executed warrant was required and there wasn't one     13
A search and\or seizure of the person or property    13
Specific instances     15
Was the contact a consensual encounter, rather than a detention?    28
Definition    29
Restrictions on officer’s conduct    30
Factors to consider    30
Other examples of consensual encounters    36
Government action or private action with government involvement    41
A reasonable expectation of privacy or what is often referred to as "standing"    43
General principles     43
Students     44
Test     46
Raising rights of codefendants     46
A reasonable expectation of privacy    47
No reasonable expectation of privacy     52

OUTLINE TEXT Pages 1-58
I.   WHAT ARE GROUNDS FOR SUPPRESSION OF TANGIBLE EVIDENCE? (Back)

A.    Property was illegally seized without a warrant.

B.    The warrant was insufficient on its face.

C.    The property was not that described in the warrant.

D.    There was no probable cause for believing the grounds on which the warrant was issued.

E.    The warrant was illegally executed.

II.    WHAT MUST MOTION CONTAIN? (Back)

A.    Evidence sought to be suppressed. State v. Leyva, 599 So. 2d 691 (Fla. 3d DCA 1992).

B.    Reasons for suppression.

C.    A general statement of the facts.

III.    WHAT PROCEDURAL CONSIDERATIONS APPLY? (Back)
A.    General rules. (Back)

          1.    "All searches must be authorized by a valid search warrant ... or fall within certain limited exceptions.... Those exceptions are consent, lawful arrest, hot pursuit, stop and frisk and probable cause with exigent circumstances." "The 'plain view' doctrine has frequently been considered an exception to the warrant requirement. In reality, materials that are seized because they are in plain view of an officer who observes from a location where he has a legal right to be are not subject to [a] Fourth Amendment [analysis]...." Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995).

          2.    "When no warrant has been secured, the rule is that the search or seizure is per se unreasonable unless it falls within one of the well established exceptions to the warrant requirement. See Jones v. State, 648 So.2d 669, 674 (Fla. 1994), cert. denied, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995)." Stalling v. State, 678 So. 2d 843 (Fla. 1st DCA 1996).

          3.    If there is any reasonable doubt as to whether the officer acted reasonably in conducting a search it must be resolved in favor of the defendant. State v. Cross, 535 So. 2d 282 (Fla. 3d DCA 1988), affirmed, 560 So. 2d 228 (Fla. 1990).

          4.    A search is per se unreasonable under the Fourth and Fourteenth amendments unless conducted within one of the recognized exceptions to the warrant requirement. Alvarez v. State, 573 So. 2d 400 (Fla. 3d DCA 1991).

          5.    In a hearing on a motion to suppress it was proper for the court to hear what witnesses told the officer who arrested the defendant for loitering and prowling. Hearsay is admissible in a hearing on a motion to suppress. State v. Cortez, 705 So. 2d 676, 679 (Fla. 3d DCA 1998).

B.    Is exclusion the appropriate remedy? (Back)

          1.    The defendant was unlawfully detained. He pushed the officer and ran. He was charged with battery on a law enforcement officer and obstructing. The defendant moved to suppress all evidence of the contact with the officer. "Even though the altercations ... may never have occurred 'but for' the stop, the evidence concerning the defendant's battery on the police officer and his alleged obstruction is not legally derivative for purposes of the exclusionary rule." State v. Freeney, 613 So. 2d 523 (Fla. 2d DCA 1993).

          2.    The motion is distinct from a motion to dismiss. It is designed to exclude evidence discovered as a result of an unlawful search or an unlawfully secured confession or admission. It must specify the evidence sought to be suppressed. A motion to suppress evidence because the officer made the stop based on his belief that the defendant's license was suspended could not result in suppression of the prestop observations of the officer or of the driving record. The motion was defective because it failed to state what the defense was seeking to suppress. State v. Leyva, 599 So. 2d 691 (Fla. 3d DCA 1992).

          3.    The arrest of the defendant is not subject to suppression nor the charge subject to dismissal on the grounds that the arrest was unlawful. State v. Leyva, 599 So. 2d 691 (Fla. 3d DCA 1992).

          4.    The Fourth Amendment exclusionary rule requires the suppression of physical evidence or verbal statements, but "an 'arrest,' on the other hand, can never be suppressed nor can charges in an indictment or information be dismissed" under that rule. In this case the defendant sought suppression of the arrest in a resisting arrest without violence case. Saldana v. State, 634 So. 2d 201 (Fla. 3d DCA 1994).

          5.    The defendant was lawfully stopped while driving a motor vehicle. The officer did a license check and determined that the defendant’s license was suspended. The defendant moved to suppress the fruits of the stop, including his identity. County Judge Cory J. Ciklin ruled that the stop was unlawful, but had to deny the motion based on the binding authority of Ware v. State, 679 So. 2d 3 (Fla. 2d DCA 1996), and O’Neal v. State, 649 So. 2d 311 (Fla. 3d DCA 1995). In those cases the courts decided “that the identity of the defendant is not subject to suppression under the same circumstances” as in the case at bar. Judge Ciklin certified the issue to the district court. The court noted that those decisions were based on a misapplication of Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). In considering that case the court quoted extensively from a decision of County Judge Barry M. Cohen, which had been relied on by Judge Ciklin. The district court and the two county judges concluded that in Lopez identity was considered solely for the purpose of determining whether the court had jurisdiction in a deportation proceeding, not for the purpose of determining whether identity could be suppressed. The court concluded that Lopez stands for the proposition that the prosecution of the defendant cannot be barred by virtue of an unlawful stop, but it does not stand for the proposition that unlawfully secured proof of identity should not be excluded just as any other unlawfully secured evidence. Thus, the district court ruled that the identity of the defendant is subject to suppression where it is discovered as a result of an unlawful search and seizure. The court certified conflict with Ware and O’Neal. Perkins v. State, 734 So. 2d 480 (Fla. 4th DCA 1999), affirmed, 760 So. 2d 85 (Fla. 2000).

          6.    The Court said, “we hold that when, as in the instant case, an officer unlawfully stops a defendant solely to determine whether he or she is driving on a suspended license, that officer’s post-stop observation of the defendant behind the wheel must be suppressed.” The Court does not directly address whether identity would be excluded if the unlawful stop was for reasons other than to determine whether the driver had a suspended license. The Court draws a distinction, however, between an officer’s incidental observations during an unlawful stop and observations directly related to the criminal investigation. “The principle evidence in the instant case is the observation of the defendant behind the wheel. When viewed in the context of driving with a suspended license, the observations by a police officer of a defendant following an unlawful stop can hardly be described as incidental to the criminal investigation” How this applies to a DUI case is unclear. State v. Perkins, 760 So. 2d 85 (Fla. 2000). See also Delafield v. State, 777 So. 2d 1020 (Fla. 2d DCA 2000).

          7.    The exclusionary rule was the appropriate remedy for the state's failure to comply with the notice requirement for medical records. There are three circumstances which justify the application of the exclusionary rule: (1) evidence is secured through a constitutional violation; (2) the state violates a statute implementing or expanding on a constitutional right; or (3) there has been an improper intrusion into a privileged relationship. State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997)(en banc).

          8.    "'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.'" (citing State v. White, 660 So.2d 664, 666-67 (Fla. 1995). (p. 1132). State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997)(en banc).

          9.    The U.S. Supreme Court ruled that the exclusionary rule does not bar introduction of evidence seized in violation of the Fourth Amendment at state parole revocation hearings. This decision is potentially applicable to probation and community control hearings. The Court ruled that the exclusionary rule is not applicable because the deterrent effect is minimal. If an officer is not deterred by exclusion of the evidence from the criminal prosecution, it is unlikely that an officer would be deterred by its exclusion from a parole hearing. “Where the person conducting the search is a police officer, the officer’s focus is not upon ensuring compliance with parole conditions or obtaining evidence for introduction at administrative proceedings, but upon obtaining convictions of those who commit crimes. The non-criminal parole proceeding ‘falls outside the offending officer’s zone of primary interest.’” The Court also found that there would be little deterrent if the parole officer did the search. Pennsylvania Bd. Of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998).”

          10.    The Court noted that Pennsylvania Bd. Of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) applies in Florida. McCloud v. State, 717 So. 2d 132 (Fla. 4th DCA 1998)(note 1).

C.    In the absence of good cause the motion is to be heard prior to trial, but the court may in its discretion hear it during trial. (Back)

          1.    The trial judge refused to give the defendant a pretrial hearing on his valid motion to suppress. The judge relied on various documents and memoranda in the court file to deny the motion and during trial allowed the defense to proffer evidence. This procedure was improper. Pursuant to Rule 3.190(h) the judge was required to conduct a pretrial hearing. Gadson v. State, 600 So. 2d 1287 (Fla. 4th DCA 1992).

          2.    Where the jury is sworn and the court then hears a motion to suppress and erroneously grants it, trial on remand is barred. State v. Kennon, 652 So. 2d 396 (Fla. 2d DCA 1995).

          3.    The trial judge entered an order that all pretrial motion had to be heard not later than seven days before the pretrial conference. In two cases the defendants failed to comply with this requirement. They filed motions to suppress 5 days after the pretrial conference and about 12 days before the trial. They did not attempt to set the motions for hearing before the trial. They gave no explanation. The trial judge summarily denied the motions. On appeal the court affirmed. “In these two cases, there appears no good reason for defense counsels’ failure to comply with the trial court’s orders. Nothing has been offered by way of mitigating circumstances. We must conclude defense counsels’ actions in these cases were engaged in as a means to delay or obtain a continuance of the trial, and to frustrate witnesses who have been subpoenaed for trial.” Powell v. State , 717 So. 2d 1050 (Fla. 5th DCA 1998).

D.    Credibility. (Back)

          1.    If the testimony of an officer as to the facts is not discredited, contradicted, rebutted, controverted, or impeached in some way it must be accepted. State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. G.H., 549 So. 2d 1148 (Fla. 3d DCA 1989); State v. Scruggs, 563 So. 2d 717 (Fla. 3d DCA 1990); State v. Simm, 558 So. 2d 110 (Fla. 3d DCA 1990); State v. Moreno, 558 So. 2d 470 (Fla. 3d DCA 1990); Delgado v. State, 574 So. 2d 1129 (Fla. 3d DCA 1991).

          2.    Although, there are several cases indicating that if the testimony of an officer is unrebutted it must be accepted by the trial judge, one case says, "the judge did not have to believe the police officer's testimony.... This case is similar to having a jury disbelieve the state's evidence in a criminal case. Even though the state's witnesses are uncontradicted, a jury does not have to accept and believe them. Such a rule is applicable here. The trial judge could well have found the initial stop was illegal, based on the police officer's testimony; and that the state failed to carry its burden of proof to show there was an unequivocal break in the chain of illegality, because the trial judge did not believe the police officer's testimony that Paul freely consented. State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994).

          3.    “As a general rule, any conflict ... is for the finder of fact to resolve where the record contains competent substantial evidence as to both the State's and the defense's theories. On the other hand, a record containing uncontroverted and believable evidence supporting only a single theory means the trial court must accept that theory as fact, even if the theory is based entirely on the arresting officer's testimony. State v. Carter, 563 So.2d 728, 728 (Fla. 3d DCA 1990). Any other ruling is plain error.” State v. Daniel, 665 So. 2d 1040 (Fla. 1995) n.2, overruled on other grounds by, Holland v. State, 696 So. 2d 757 (Fla. 1997)..

          4.    "A judge acting as factfinder is not required to believe the testimony of police officers in a suppression hearing, when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if is uncontroverted, so too the judge may disbelieve the only evidence offered in a suppression hearing." Maurer v. State, 668 So. 2d 1077 (Fla. 5th DCA 1996).

          5.    It is questionable whether the trial judge may reject a stipulation entered into by the parties at a motion to suppress hearing. In this case the parties had stipulated that the officer routinely stopped vehicles for tag violations and her department vigorously enforced those laws. Nevertheless, the court found that the stop for the tag violation was a pretext. "See State v. Daniel, 665 So. 2d 1060, 1055 n.2 (Fla. 1995) ('a record containing uncontroverted and believable evidence supporting only a single theory means that a trial court must accept that theory as fact, even if the theory is based entirely on the arresting officer's testimony')." State v. Corvin, 677 So. 2d 947 (Fla. 2d DCA 1996).

E.    Must accept majority U.S. Supreme Court opinions, but not plurality opinions. State v. Welker, 536 So. 2d 1017 (Fla. 1988); State v. Smith, 529 So. 2d 1226 (Fla. 3d DCA 1988). (Back)

          1.    Under the Florida Constitution, Florida Courts are obligated to follow decisions of the United States Supreme Court in resolving search and seizure issues. "[P]olicy statements from the United States Supreme Court will serve as a polestar in choosing among competing and unreconciled views of Fourth Amendment issues." State v. Daniel, 665 So. 2d 1040, 1042 (Fla. 1995), overruled on other grounds by, Holland v. State, 696 So. 2d 757 (Fla. 1997).

          2.    "While we acknowledge the more restrictive holdings of some lower federal appellate courts ... we are not bound by those cases under the plain language of article I, section 12. On Fourth Amendment issues we are bound only by factually apposite holdings of the United States Supreme Court, art. I, §12, Fla. Const...." Johnson v. State, 660 So. 2d 648 (Fla. 1995).

F.    Delays in filing or in hearing. (Back)

          1.    There was no abuse of discretion where state's request for continuance and the motion was granted where two officers, who had been served with subpoenas, failed to appear because they chose to go to school. State v. McCarthy, 585 So. 2d 1167 (Fla. 4th DCA 1991).

          2.    There was an abuse of discretion in refusing to reopen the case to hear evidence and argument where the state attorney was 10 minutes late for the hearing and the hearing began four minutes before the prosecutor arrived. The opinion covers the important factors which included the lack of willfulness and prejudice. State v. Perez, 587 So. 2d 630 (Fla. 3d DCA 1991).

          3.    A motion to suppress filed five days before trial was timely under rule 3.190(h)(4) and it was error to deny it without an evidentiary hearing. Martin v. State, 654 So. 2d 978 (Fla. 1st DCA 1995).

G.    The court has inherent power to reconsider while it has jurisdiction. State v. Harvey, 573 So. 2d 111 (Fla. 2d DCA 1991); Obregon v. State, 601 So. 2d 616 (Fla. 3d DCA 1992). (Back)

H.    Preparation of orders. (Back)

          1.    Written findings of fact in an order granting a motion to suppress are preferable, but not required. State v. Keel, 557 So. 2d 907 (Fla. 1st DCA 1990).

          2.    A pronouncement that the motion is granted followed by an order stamped on the motion did not satisfy the rendition rule for appeal where it was only initialed, lacked a date of signing and filing. State v. Moore, 563 So. 2d 115 (Fla. 2d DCA 1990).

I.    What are the steps at the hearing? (Back)

          1.    Examine the motion, and if it is insufficient on its face, deny it. Pittman v. State, 522 So. 2d 86 (Fla. 5th DCA 1988).

          2.    The defendant first presents evidence supporting position and then the state offers rebuttal evidence.

J.    Standard of review. (Back)

          1.    The United States Supreme Court has ruled: "We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn fron these facts by resident judges and local law enforcement officers." The de novo review has to do with the evaluation of the historical facts because reasonable suspicion and probable cause are mixed questions of law and fact. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). See also United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed. 2d 740 (2002).

          2.    The Ornelas decision has been applied in Florida to justify de novo review of trial court’s decision as to whether or not there was reasonable suspicion. DeLeon v. State, 700 So. 2d 718 (Fla. 2d DCA 1997); State v. J.L., 689 So. 2d 1116 (Fla. 3d DCA 1997); Saturnino-Boudet 682 So. 2d 188 (Fla. 3d DCA 1996); State v. Gonzalez, 682 So. 2d 1168 (Fla. 2d DCA 1996); A.G. v. State, 689 So. 2d 1246 (Fla. 4th DCA 1997).

          3.    The court followed that same approach in another case, but noted that the U.S. Supreme Court also ruled that: "The appellate court ... should review findings of historical fact only for clear error and give due weight to inferences drawn from those facts by trial courts and local law enforcement officials." C.G. v. State, 689 So. 2d 1246 (Fla. 4th DCA 1997).

          4.    “A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” This was a cases dealing with whether there was a voluntarily. Murray v. State, 692 So. 2d 157 (Fla. 1997).

          5.    Pursuant to §924.051(3)(Supp. 1996), the state could not secure reversal of an order granting a motion to suppress based on lack of standing or the claim that the search was valid puruant to Whren where these points were not argued with sufficient precision "to fairly apprise the trial court of either of these issues." State v. Mae, 706 So. 2d 350 (Fla. 2d DCA 1998).

          6.    Review of a motion to suppress is a mixed question of law and fact. "The standard of review for the trial judge's factual findings is whether competent substantial evidence support's the judge's ruling. Caso v. State, 524 So.2d 422 (Fla. 1988). The standard of review for the trial judge's application of the law to its factual findings is de novo. Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)." Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001).

          7.    In a two to one opinion finding that the trial judge correctly ruled that an officer had reasonable suspicion, the court said: “A trial court’s ruling on a motion to suppress is presumed correct and a reviewing court must interpret the evidence and reasonable inferences in the light most favorable to sustaining the trial court’s ruling.” Grant v. State, 718 So. 2d 238 (Fla. 2d DCA 1998). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001); Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998).

          8.    “On appeal, a trial court’s factual findings on a motion to suppress are reviewable under a de novo standard. See Ornelas v United States, 517 U.S. 690, 691, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).” State v, Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).

          9.    “Whether the facts as found by the trial court constitute probable cause for arrest requires de novo review on appeal. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).” League v. State, 778 So. 2d 1086 (Fla. 4th DCA 2001).

          10.    “On review, the trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness. See San Martin v. State, 717 So.2d 462, 469 (Fla.1998). Although the evidence adduced at the suppression hearing was certainly in conflict as to whether appellant had permission to be on the premises of the housing complex where he was arrested, the reviewing court is bound by the trial court's findings of fact on this matter, made after the suppression hearing, unless the findings are clearly erroneous.” M.J. v. State, 776 So. 2d 341 (Fla. 1st DCA 2001).

          11.    “It is well?settled that a trial court's ruling on a motion to suppress is presumed to be correct and that the appellate court will interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court's ruling. See Porter v. State, 765 So.2d 76 (Fla. 4th DCA 2000). Although an appellate court must accept the trial court's findings of historical fact when reviewing the denial of a suppression motion, it must review de novo its application of established law to those facts. Curtis v. State, 748 So.2d 370, 371 (Fla. 4th DCA 2000). Chapman v. State, 780 So. 2d 1036 (Fla. 4th DCA 2001). See also McMaster v. State, 780 So. 2d 1026 (Fla. 5th DCA 2001).

          12.    The determination of whether the consent to a search was voluntary is a question for the trial judge and should not be disturbed on appeal unless the determination is clearly erroneous. Chapman v. State, 780 So. 2d 1036 (Fla. 4th DCA 2001).

          13.    Court ruled that if the court expands its order on a pretrial motion to suppress during the trial and the defendant successfully moves for a mistrial, the State may appeal. The mistrial is not a trial at all; therefore, there is no double jeopardy problem. State v. Desantiago, 791 So. 2d 1211 (Fla. 5th DCA 2001).

          14.     “Suppression issues are extraordinarily rich in diversity and run the gamut from (1) pure questions of fact, to (2) mixed questions of law and fact, to (3) pure questions of law. Reviewing courts must exercise care when examining such issues, for while the issues themselves may be posed in broad legal terms (e.g., whether a suspect was ‘in custody,’ whether conduct by police constituted ‘interrogation’), the actual ruling is often discrete and factual (e.g., whether police did in fact tell a suspect he was free to go, whether police did in fact ask a suspect if he committed the crime). Appellate courts cannot use their review powers in such cases as a mechanism for reevaluating conflicting testimony and exerting covert control over the factual findings. As with all trial court rulings, a suppression ruling comes to the reviewing court clad in a presumption of correctness as to all fact?based issues, and the proper standard of review depends on the nature of the ruling in each case. “ State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001).

          15.    “See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 248?49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (‘Voluntariness [of a consent to search] is a question of fact to be determined from all the circumstances....’); Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998) (‘The question of whether a consent [to search] is voluntary is a question of fact to be determined from the totality of the circumstances.’).” State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001).

          16.    “The following standards of review apply to trial court rulings in general: If the ruling consists of a pure question of fact, the ruling must be sustained if supported by competent substantial evidence. See, e.g., Philip J. Padovano, Florida Appellate Practice § 9.6 (2nd ed.1997). If the ruling consists of a mixed question of law and fact addressing certain constitutional issues (e .g., probable cause, reasonable suspicion, the ‘in custody’ requirement under Miranda, ineffectiveness of counsel), the ultimate ruling must be subjected to de novo review but the court's factual findings must be sustained if supported by competent substantial evidence. See, e.g., Stephens v. State, 748 So.2d 1028 (Fla.1999). If the ruling consists of a mixed question of law and fact addressing other issues (e.g., the dependency of a child, the propriety of a departure sentence, the presence of an aggravating circumstance), the ruling must be sustained if the trial court applied the right rule of law and its ruling is supported by competent substantial evidence. See, e.g., In re M.F., 770 So.2d 1189, 1192 (Fla.2000); Banks v. State, 732 So.2d 1065, 1067 (Fla.1999); Willacy v. State, 696 So.2d 693, 695 (Fla.1997). If the ruling consists of a pure question of law, the ruling is subject to de novo review. See, e.g., Philip J. Padovano, Florida Appellate Practice § 9.4 (2nd ed.1997).” State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001). See also Connor v. State, 803 So. 2d 598 (Fla. 2001).

          17.    “A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling. (citations omitted In this case, the trial court's ruling on the motion to suppress involves a mixed question of fact and law. Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999). The standard of review for the findings of fact is whether competent, substantial evidence supports the findings. Id.; Hawk v. State, 718 So.2d 159 (Fla.1998). Review of the trial court’s application of the law to the facts is de novo.” State v. Manuel, 796 So. 2d 602 (Fla. 4th DCA 2001).

          18.    This case did not involve a search and seizure issue, but the legal principle is applicable in any fact finding situation. “The trial court relied on Walls v. State, 641 So.2d 381 (Fla.1994), as a guidepost in evaluating the expert testimony of each of the experts, particularly Dr. Eisenstein, whose testimony was most favorable to Gonzalez. In Walls we said: ‘[A] distinction exists between factual evidence or testimony, and opinion testimony. As a general rule, uncontroverted factual evidence cannot simply be rejected unless it is contrary to law, improbable, untrustworthy, unreasonable or contradictory. E.g., Brannen v. State, 94 Fla. 656, 114 So. 429 (1927).... Opinion testimony, on the other hand, is not subject to the same rule. Brannen. Certain kinds of opinion testimony clearly are admissible??and especially qualified expert opinion testimony??but they are not necessarily binding even if uncontroverted. Opinion testimony gains its greatest force to the degree it is supported by the facts at hand, and its weight diminishes to the degree such support is lacking.’ Walls, 641 So.2d at 390.” Gonzalez v. State, 786 So. 2d 559 (Fla. 2001).

          19.     “Although there is nothing in the record to directly contradict the detective's statement that C.F. had been fully advised of his rights, the court was free to disbelieve this testimony, as the detective could not recall some of the details surrounding the interview, such as why no written form was used, and whether he had interviewed C.F. off the record prior to his taped statement. We cannot say that such a finding is an abuse of the trial court's discretion. We note that it is not asserted that the ruling as to the second statement was based on any taint carried over from the earlier interview at the house.” State v. C.F., 798 So. 2d 751 (Fla. 4th DCA 2001).

          20.    The rules for presentation of evidence in the hearing are not the same as the trial itself. Thus, there is no denial of the right of confrontation in a hearing on a motion to suppress where the arresting officer testifies, but the officer that supplied critical information to the arresting officer does not testify. Ferrer v. State, 785 So.2d 709 (Fla. 4th DCA 2001).

          21.    “The important point is that the officer’s legal conclusion on the issue of probable cause or reasonable suspicion is not binding on the trial court or this court.... ‘Nor would the legal conclusion of the officer prevent the State from arguing and presenting evidence that probable cause did in fact exist.’ Routly v. State, 440 So.2d 1257, 1261 (Fla.1983).” Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999).

          22.    Tangible evidence that is secured as a result of statements made without Miranda warnings where such warnings should have been given are inadmissible. State v. C.F., 798 So. 2d 751 (Fla. 4th DCA 2001).

          23.    “Mixed questions of law and fact are often involved in appellate review of a trial court's ruling on a motion to suppress. State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001). The standard of review to be applied to the factual findings of the trial court is whether competent, substantial evidence supports the findings. See Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999). In applying that standard to the facts, this court must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to upholding the trial court's decision. See Kindle, 782 So.2d at 973 (citing San Martin v. State, 717 So.2d 462, 469 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999)). The trial court's application of the law to the facts, however, is reviewed de novo. Connor v. State, 803 So.2d 598 (Fla.2001); McMaster. We must determine, based on this standard of review, whether the State has established that either a consensual encounter or an investigatory stop took place that led to the discovery of the evidence which formed the basis of the charges against Young.” Young v. State, 803 So. 2d 880 (Fla. 5th DCA 2002).

          24.    The “court should not overturn a trial court’s decision on consent unless the decision is clearly erroneous.” State v. Carson, 801 So. 2d 165 (Fla. 2d DCA 2001). See also Watts v. State, 788 So. 2d 1040 (Fla. 2d DCA 2001)(en banc).

          25.    “On review, the appellate court is required to accept the trial court’s determinations of the historical facts leading to a search; however, a defendant is entitled to a de novo review of whether the application of the law to the historical facts establish an adequate basis for the trial court's finding of probable cause.” Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

IV.    WHAT MUST THE DEFENDANT SHOW BEFORE THE STATE HAS TO PRESENT EVIDENCE? (Back)

A.    That a validly executed warrant was required and there wasn't one. (Back)
State v. Williams, 538 So. 2d 1346 (Fla. 4th DCA 1989). This means there must be a warrantless search and seizure or an improperly issued or executed warrant. Forrester v. State, 565 So. 2d 391 (Fla. 1st DCA 1990).

B.    A search and\or seizure of the person or property. (Back)

          1.    An individual had his house trailer removed from a lot by force by the owner of the park and his agents. Deputies stood by to ensure that the mobile home owner did not interfere with the removal. The Fourth Amendment protects against unlawful seizures by state agents even in the absence of a search. For example in this case there was no search of the trailer, but there was a seizure. Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).

          2.    A seizure of the person occurs “‘When the officer, by means of physical force, or show of authority, has in some way restrained the liberty of a citizen.’” California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). See also Clinton v. State, 780 So. 2d 960 (Fla. 5th DCA 2001); State v. Green, 601 So. 2d 617 (Fla. 3d DCA 1992); Grant v. State, 596 So. 2d 98 (Fla. 2d DCA 1992).

               a.     The test for a "'show of authority'" is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person."

               b.     "Hodari draws a clear distinction between those who yield to the authority of the police and those who flee. A person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized." Thus, in cases where an officer who lacked legal grounds for a detention has ordered a defendant to stop, pulled the defendant's car over, or asked the defendant what he had in his hand there has been a detention. Hollinger v. State, 620 So. 2d 1242 (Fla. 1993).

          3.    “But Ciraolo and Riley are different from this case because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection....When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent's physical manipulation of petitioner's bag violated the Fourth Amendment.” Bond v. United States, 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000).

          4.    "A seizure occurs when 'one's freedom of movement has been restrained' by physical force or by a show of authority" or there is police conduct which would cause a reasonable person to conclude that they were required to comply with the officer's instructions. Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990).

          5.    The test for whether a person had been detained is whether a reasonable person would believe that he or she was not free to go, not whether an individual perceived that he or she was not free to go. "The 'reasonable person' test presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 1547, 1551, 115 L.Ed.2d 389, 400 (1991); Jones v. State, 658 So.2d 178, 180 (Fla. 1st DCA 1995)." State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996).

          6.    Specific instances. (Back)

               a.     No seizure occurs where the officer tells the defendant to stop or attempts to stop the defendant, but the defendant does not yield. California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

               b.     The officer's direction to the defendant, "If you have rock cocaine, go ahead and pull it out," constituted a search. Blair v. State, 563 So. 2d 824 (Fla. 2d DCA 1990).

               c.     The decision in California v. Hodari stands for the proposition that the Fourth Amendment protects citizens from actual unlawful seizures by the police, but not from attempted unlawful seizures. Where an officer commanded a defendant to stop and the defendant actually turned and responded to the officer's command there was a seizure. In the Interest of: J.K., 581 So. 2d 940 (Fla. 4th DCA 1991).

               d.     There was a seizure where an officer told the defendant to exit a vehicle and to remove her hand from her pocket. Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990).. See also Brown v. State, 577 So. 2d 708 (Fla. 2d DCA 1991); Jackson v. State, 579 So. 2d 871 (Fla. 5th DCA 1991).

               e.     Officers stopped their vehicle in front of the defendant, turned on their flashers, and commanded the defendant to show what he had in his hand. One officer testified that the defendant was not free to leave and would have been stopped if he had tried to leave. That constituted a detention. Smith v. State, 592 So. 2d 1206 (Fla. 2d DCA 1992).

               f.     Positioning car behind defendant's vehicle, with high beams and spot light on combined with way the officer approached the vehicle constituted a detention and not a consensual encounter. Mosby v. State, 575 So. 2d 304 (Fla. 2d DCA 1991).

               g.     A mere request for identification does not constitute a seizure. Hill v. State, 561 So. 2d 1245 (Fla. 2d DCA 1990).

               h.     Where an officer detained an individual who appeared to have something in his mouth, his order to "spit it out" constituted a search. Williams v. State, 564 So. 2d 593 (Fla. 2d DCA 1990).

               i.     Voluntary withdrawal of an item from a pocket not in response to any police request is not a search even though the defendant may have been unlawfully detained. Mitchell v. State, 559 So. 2d 243 (Fla. 1st DCA 1990). But ordering the defendant to empty pockets or open fists constitutes a search. Curry v. State, 570 So. 2d 1071 (Fla. 5th DCA 1990).

               j.     No search of the defendant took place where an officer ordered him to stand up, which revealed drugs he was sitting on. State v. Neely, 560 So. 2d 1230 (Fla. 1st DCA 1990).

               k.     Looking in a vehicle with a flashlight was not a search. Roberts v. State, 566 So. 2d 848 (Fla. 5th DCA 1990).

               l.     Having a safe dial tested with cobalt for signs of cocaine did not constitute a search. Like dusting for fingerprints, looking through a magnifying glass, or shining a flashlight it "merely enhanced the police's 'plain view' of the safe." State v. Heiser, 583 So. 2d 389 (Fla. 4th DCA 1991).

               m.     It did not constitute an unlawful seizure of the person for the state attorney to issue a subpoena to a citizen requesting fingerprint samples and handwriting exemplars. This is not the same as the situation in Hayes v. Florida, 470 U.S. 811 (1985), wherein the Court found that there was a seizure of the person without lawful authority in violation of the fourth amendment. The prosecutor can subpoena anyone during the course of an investigation to provide nontestimonial evidence. There the defendant was ordered without probable cause to go with police to provide the prints. Doe v. State, 634 So. 2d 613 (Fla. 1994).

               n.     A defendant was seized when the officer ordered him to take his hands out of his pocket and turn around. Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1992).

               o.     Where individuals were placed in the back of a police cruiser with no way of exiting they were detained. Springle v. State, 613 So. 2d 65 (Fla. 4th DCA 1993).

               p.     A breath test involves the taking of deep lung air and according to Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), "'like the blood-alcohol test ... should also be deemed a search.'" This decision overrules State v. Townsend, 479 So. 2d 306 (Fla. 2d DCA 1985) and State v. Gemignani, 545 So. 2d 929 (Fla. 2d DCA 1989). Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994).

               q.     The officer put his hand on the defendant's shoulder and told him that if he just put drugs in his mouth he needed to spit them out because they would make him ill. Once the officer put his hand on the defendant's shoulder it became a seizure and the order to spit out the drugs was a search. M.J.S. v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993).

               r.     "Whether characterized as a request or an order, we conclude that [the deputy's] direction for [the defendant] to exit his vehicle constituted a show of authority which restrained [the defendant's] freedom of movement..." and when the defendant submitted it became a seizure. Popple v. State, 626 So. 2d 185 (Fla. 1993). See also Hilgeman v. State, 790 So. 2d 485 (Fla. 5th DCA 2001).; Rinehart v. State, 778 So. 2d 331 (Fla. 2d DCA 2000); Shaw v. State, 778 So. 2d 389 (Fla. 2d DCA 2001).

               s.     It was proper for an officer to approach two people in a car and ask for identification, but when he directed them to exit, that became an investigatory stop. "Whether the direction to exit the vehicle was in the form of a request or an order, it constituted a show of authority which restrained Allen's freedom of movement because a reasonable person under the circumstances would believe that he should comply." Allen v. State, 703 So. 2d 1162 (Fla. 2d DCA 1997).

               t.     When an officer ordered the defendant to remove his hands from his pocket and blocked the defendant's path there was a detention for Fourth Amendment purposes. The defendant came under the officer's control when he removed his hands from his pocket. This was a show of authority. Palmer v. State, 625 So. 2d 1303 (Fla. 1st DCA 1994).

               u.     As an officer approached the defendant, the officer identified himself and told him to take his hand out of his pocket. The defendant complied. This constituted a seizure. Florida courts "have consistently held that orders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure." "The order and submission [to authority] ... constituted a seizure." If the defendant ignores the order and attempts to walk away there has been no seizure. Harrison v. State, 627 So. 2d 583 (Fla. 5th DCA 1993).

               v.     Encounter was transformed into a seizure when officers ran in front of the defendant and blocked his path while telling him to spit out what he had in his mouth. A.C. v. State, 630 So. 2d 1219 (Fla. 2d DCA 1994).

               w.     State-compelled taking and testing of urine is a "search". Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed.2d 564 (1995); Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295, 137 L. Ed.2d 513 (1997); Ferguson v. Charleston, 532 U.S. 305, 121 S. Ct. 1281, 149 L. Ed.2d 205 (2001)(securing urine samples from pregnant patients at state hospital was a search and violated Fourth Amendment where the sample was secured without informed consent and for the purpose of turning it over to law enforcement for action regarding drug use.)

               x.     Ordering the defendant to stand up and turn around constituted a seizure. Burgess v. State, 630 So. 2d 666 (Fla. 4th DCA 1994).

              y.     The use of thermal imaging device that detects heat inside a building from a position outside the building constitutes a search and must comply with the Fourth Amendment. “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknownable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed.2d 94 (2001).

               z.     Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision." Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed.2d 89 (1996).

               aa.     An order to exit a vehicle is a Fourth Amendment seizure. An officer may order passengers as well as drivers to exit the vehicle during a traffic stop, "as a protective measure for his own safety, without any additional evidence of wrongdoing or danger." In this case, an officer ordered a passenger to exit a vehicle. Here the detention was unlawful because it clearly had nothing to do with officer's safety. The officer did not even maintain that it did. The defendant in this case kept being verbally abusive to the officer. "More importantly, [the officer] did not initially make such an order and never disturbed the two rear-seat passengers at all. It is therefore obvious that the order was issued to [the defendant] alone because of his 'hostile-attitude.' This is not constitutionally enough." R.H. v. State, 671 So. 2d 871 (Fla. 3d DCA 1996).

               bb.     Opening the cruiser door so that the defendant's bicycle would hit it causing the defendant to fall, constituted a seizure of the person. It was not necessary for the officer to touch the defendant with his hands. Clark v. State, 648 So. 2d 848 (Fla. 4th DCA 1995).

              cc.     The defendant's vehicle was lawfully stopped. There was reason to believe that there might be a gun in the car. One officer began talking to the defendant and saw that the defendant was wearing a hip bag. It was bulging and appeared to be very heavy. Under the circumstances the officer thought that the defendant might have another weapon in this bag, which was close to the defendant's hand. The officer then asked the defendant if he had any weapons in the bag. The defendant inquired whether the officers were just looking for weapons. The officer responded: "Why, do you got drugs in there?" The defendant said yes and opened the bag to reveal the marijuana. The officer then seized the bag containing drugs and paraphernalia. The inquiry concerning the contents of the bag was not a search. State v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995).

              dd.     Officers rented video tapes and copied them and returned the tapes to the business. There was no independent examination of the tapes by a judge. The defendant was charged with distribution of obscene materials based on the tapes. A motion to suppress the tapes was granted. A circuit court reversed the county court on the grounds that there had not been an illegal search or seizure because the owner had voluntarily turned the tapes over when he rented them and the officers returned them in a timely fashion. On appeal the District Court reversed the Circuit Court. "We hold that the officer's act of copying the rented video tapes constitutes a seizure of [the owner's] property. While it is true that law enforcement officers are allowed to keep a single copy of a video tape or movie for purposes of preserving the evidence; see State v. Johnson, 605 So. 2d 545, 548 (Fla. 2d DCA 1992), the lawful retention is dependent upon the issuance of a warrant for the seizure of the item prior to the officers obtaining it. Only when a warrant has been issued is the retention not a prior restraint.... The copying of the movie onto a blank cassette for the purpose of pursuing a prosecution for distribution of obscene materials without the determination that the movie is obscene is an illegal seizure even when the original cassette is returned to the store owner during the rental period." Miragaya v. State, 654 So. 2d 262 (Fla. 2d DCA 1995).

              ee.     There was a seizure of the defendant where "a police officer pulled up behind [the defendant], approached his vehicle, and ordered him to turn off his motor and give him his driver's license." Taylor v. State, 658 So. 2d 173 (Fla. 5th DCA 1995).

               ff.     The defendant was walking in a high-drug residential area at about 2:00 p.m. A deputy saw him and reported that the defendant looked nervously at the police car, crossed the street, and continued to walk while looking back at the car. For these reasons the deputy decided to approach the defendant. He then advised another deputy that the defendant should be approached. Each deputy approached the defendant at the same time and stopped within about three feet of the defendant. One deputy asked the defendant his name and the defendant responded. The other deputy noticed that the defendant was hiding his right hand behind his back and had a black object in his hand. He said that he believed the defendant might be holding a gun. At that point one of the deputies asked the defendant what was in his right hand. The defendant said "[N]o" and pulled his hand back. The deputy then grabbed the defendant's hand to see what was in it. He saw a shirt in the defendant's hand. A tugging match between the deputy and the defendant then took place, resulting in crack cocaine falling from the shirt. The trial judge held that the initial contact was a consensual encounter which turned into a valid stop when the officers began to fear for their safety. On appeal the court ruled that once the officers grabbed the defendant's hand the encounter became a stop. Even if it the officer had a reasonable belief that the defendant was armed, any alarm was dispelled once the deputy saw that the defendant was holding a shirt rather than a weapon. Thus, the deputy was not authorized to pull the defendant's shirt from his hand. This was particularly true since there was no evidence that weapons are usually hidden in this manner. Stephens v. State, 656 So. 2d 531 (Fla. 2d DCA 1995).

              gg.     A consensual encounter was transformed into a detention when the officer decided to conduct a pat down. Sholtz v. State, 649 So. 2d 283 (Fla. 2d DCA 1995); Beasley v. State, 604 So. 2d 871 (Fla. 2d DCA 1992). A frisk or pat down results in a detention. Hamilton v. State, 612 So. 2d 716 (Fla. 2d DCA 1993).

               hh.     An attempt to pat down the defendant changes the contact into an investigatory detention even though the officer said the defendant was free to go. Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990).

               ii.     When the defendant noticed officers he began pedaling his bike quickly in the opposite direction. The officers followed the defendant for five blocks in their car, activated their emergency lights and pulled up to the defendant. One officer said, "'hold up, can we talk to you for a second?'" The defendant stopped his bike and waited for the officers. They parked their car in his path, got out, identified themselves and asked if they could pat him down. He allowed them to do so. Officers were positioned in front of and behind the defendant as he sat on his bike. The defendant would have had to back away from the officers and turn around to depart. There was also a police dog nearby, barking constantly. On appeal the Court ruled that "a reasonable person in [the defendant's] circumstance, rather than leaving the scene, would most likely have submitted to the officer's show of authority.... In our judgment the moment [the officer] requested permission to conduct a pat down, the so-called 'citizen interview' evolved into a detention, albeit of short duration." Cowart v. State, 635 So. 2d 1063 (Fla. 2d DCA 1994).

               jj.     “The sole issue on appeal is whether Mr. Siplin was free to leave once the officer sounded the air horn on his cruiser. We determine that under the circumstances of this encounter a reasonable person would believe that he/she was being commanded to stop upon hearing the police cruiser's air horn.... The trial judge held that the employment of the air horn did not constitute a stop. Case law is consistent that once an officer operates his emergency lights, the encounter is not consensual, but is an investigatory stop. See Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999). In the Hrezo opinion, Judge Altenbernd specifically differentiates between an officer's takedown lights and spotlight. When an officer uses takedown lights a reasonable person would not feel free to leave. This is emphasized by the fact that only police officers or department of correction officers may use blue flashing lights on their vehicles pursuant to section 316.2397(2), Florida Statutes (2000). Furthermore, section 316.271(6) provides the siren, whistle, or bell on an emergency vehicle should only be used when the vehicle is responding to an emergency call or in pursuit of an actual or suspected violator of the law. On the other hand, use of a spotlight has been found not to transform a consensual encounter into an investigatory stop. See State v. Wimbush, 668 So.2d 280 (Fla. 2d DCA 1996). Officer Brooks's air horn more closely resembles takedown lights, and therefore, he transformed the encounter into an investigatory stop. Appellant was required to stop when the officer activated his air horn, and he was not free to leave.” Siplin v. State, 795 So. 2d 1010 (Fla. 2d DCA 2001).

               kk.     “However, when they drove their vehicle behind appellant's car, effectively preventing his exit, he could not leave. Therefore, the police effected a stop unsupported by either reasonable suspicion or probable cause. See, e.g., Richardson v. State, 291 So.2d 253, 255 (Fla. 1st DCA 1974) (holding a stop was effected where officer's vehicle blocked defendant's vehicle from proceeding). Thus, the stop violated the Fourth Amendment, and the court erred in denying the motion to suppress.” Griffin v. State, 800 So. 2d 345 (Fla. 4th DCA 2001).

               ll.     “Young argues the officer’s use of his patrol car in a blocking manner and subsequent activation of the patrol car's emergency lights resulted in a show of authority that would cause any reasonable person to believe he or she was not free to leave. We agree. Florida courts consistently agree that an officer's use of his or her emergency lights evidences an investigatory stop rather than a consensual encounter. See, e.g., Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999). The reason such encounters are investigatory stops rather than consensual encounters is the use of the emergency lights leads the citizen to believe that he or she is no longer free to leave. Id. Moreover, for the same reason, positioning a patrol car to obstruct the path of the vehicle once it is stopped elevates the encounter into an investigatory stop. See Griffin v. State, 800 So.2d 345 (Fla. 4th DCA 2001); Cowart v. State, 635 So.2d 1063 (Fla. 2d DCA 1994); see also Palmer v. State, 625 So.2d 1303 (Fla. 1st DCA 1993).... [T]he officer in the instant case approached Young’s vehicle, blocked it from the rear and then activated the patrol car’s emergency lights. Under these circumstances, a reasonable person would not feel free to leave. Therefore, the consensual encounter was elevated into an investigatory stop and we must next determine whether the officer had reasonable suspicion of criminal activity to engage in such an encounter.” Young v. State, 803 So. 2d 880 (Fla. 5th DCA 2002).

               mm.     “When the officer ordered [the defendant] to open his hand, however, the consensual encounter became an investigatory stop. See Smith v. State, 592 So. 2d 1206 (Fla. 2d DCA 1992); Evans v. State, 546 So. 2d 1125 (Fla. 3d DCA 1989) (when an officer asks a defendant to remove his hands from his pocket, a reasonable person in the defendant's position would not believe he was free to go.)” Mayhue v. State, 659 So. 2d 417 (Fla. 2d DCA 1995).

                nn.     Officers stopped a car in which the defendant was a passenger. The driver was arrested. One officer then approached the passenger and asked him his name. He responded, but the officer could not understand the response and she asked him to repeat his name. He did and she still could not understand him. The officer then asked the defendant if he was chewing gum. The defendant said he was and started playing with it. The officer asked the defendant to stop playing with the gum and to take it out of his mouth. When the defendant opened his mouth to remove the gum, the officer noticed several plastic baggies in his mouth. The officer then asked the defendant to take the baggies out of his mouth. He complied and the officer observed what appeared to be crack cocaine in the baggies. She arrested the defendant. The trial judge granted a motion to suppress. On appeal the court reversed. "[T]he facts of this case demonstrated the contraband was obtained as a result of a permissible police-citizen encounter. [The officer] had the legal right to ask [the defendant] his name and ask him to remove whatever was in his mouth that was keeping him from communicating with her." The defendant had a right to terminate the contact. He voluntarily opened his mouth to remove the gum, which allowed the officer to observe the baggies. After the defendant spit them out the officer had probable cause. State v. Y.B., 659 So. 2d 323 (Fla. 1st DCA 1994).

              oo.     "The initiation of a conversation between a police officer and a citizen does not constitute a Terry stop or an arrest.... Nor is it improper for an officer to ask a person to remove his hands from his pockets during a citizen encounter." Lang. v. State, 671 So. 2d 292 (Fla. 5th DCA 1996).

              pp.     The initial consensual encounter was not converted into a detention when the officer asked the defendant to remove his hands from his pockets for officer's safety. But it was converted into a detention when the officer grabbed the defendant's arm. King v. State, 696 So. 2d 860 (Fla. 2d DCA 1996).

              qq.     A deputy saw the defendant walking in a high crime area at 10:00 p.m., carrying a flashlight. The deputy pulled his car behind the defendant and began getting out of the car. The defendant turned around and put his hand in his pocket. The deputy told the defendant to "step back into my patrol vehicle." At this point the contact ceased being a consensual encounter and became a detention. Lang. v. State, 671 So. 2d 292 (Fla. 5th DCA 1996).

              rr.     There was a detention and not a consensual encounter where the officer ordered one person, who was walking away from the area to stop, and told the other that if he did not stop, the officer would have his dog bite him. These "'circumstances demonstrate a reasonable person would not have felt free to leave.'" Pritchett v. State, 677 So. 2d 317 (Fla. 1st DCA 1996).

              ss.     Officers came to an apartment to execute arrest warrants. The defendant answered the door, but he was not one of the subjects of the warrants. During a conversation with the defendant the officers asked for his name and checked for outstanding warrants. The defendant was never told he was not free to go or restrained in any way. One officer saw the defendant reaching into his pockets. When the officers asked him to remove his hand, the defendant became nervous and dropped a bag of cocaine. The trial judge granted a motion to suppress. On appeal the court reversed. Interrogation as to the people who were the subject of the warrants and the defendant's presence in the building did not result in a detention. The request for the defendant's name and the warrant check were not inconsistent with a consensual encounter. The request that the defendant remove his hands from his pocket was to ensure officer's safety and it did not change the consensual encounter to a detention. This case was different from Mayhue v. State, 659 So.2d 417 (Fla. 2d DCA 1995), where the court held that "an investigatory stop resulted when an officer ordered [the defendant] to open his clenched hand." It was not reasonable to conclude that the clench fist might conceal a weapon; whereas, it was reasonable to conclude that a pocket might conceal a weapon. State v. Woodard, 681 So. 2d 733 (Fla. 2d DCA 1996).

              tt.     Two uniformed officers approached the defendant. The officers were in a patrol car. One officer had talked with the defendant many times. When the defendant saw the patrol car he quickly put his left hand behind his back. As a result of this the officers stopped the car and the one who knew the defendant exited the vehicle. The officer said, "Can I talk to you?" The defendant said, "Yes ". As the defendant moved towards the patrol car, the officer told him to take his hand out of his pocket. The defendant complied, but quickly put his hand behind his back again. By this time, the other officer had also left the car and had stationed himself about three feet behind the defendant. When the first officer saw that this officer took no action, he was certain the defendant did not have a weapon behind his back. The first officer did believe that the defendant had drugs in his hand. Thus, he said to the defendant, "Give me the dope you have in your hand." Defendant responded by giving the officer some small baggies containing rock cocaine. The issue was whether the seizure resulted from a consensual encounter or a detention. There was only a consensual encounter if a reasonable person would believe that they were free to go. If not - a seizure of the person had occurred. "Importantly, if a person chooses to remain in the presence of the police in submission to a police officer's show of authority, a seizure has occurred.... [E]xamples of such submission to authority include situations where an officer orders a person to take his hands out of his pockets or orders a person to hand over something in his hands...." In this case when the officer asked the defendant if he could speak to him there was only a consensual encounter, but when the defendant "acquiesced" to the officer's command to take his hand out of his pocket, the encounter evolved into a seizure. Furthermore, additional support for this conclusion come from the fact that the defendant acquiesce in the officer's command to give him the dope. Thus, there was a seizure of the person. It was illegal because there was no showing of probable cause. The evidence should have been suppressed. Gipson v. State, 667 So. 2d 418 (Fla. 5th DCA 1996).

              uu.     What was initially a consensual encounter was transformed into a stop "when the officer exercised his authority to require appellant to place his hands on the hood of the car in what sounds like 'frisk position.'" Smith v. State, 592 So. 2d 1239 (Fla. 2d DCA 1992).

              vv.     Defendant and another man were standing in a parking lot behind a bar at 11:30 p.m. They appeared to be smoking and talking. Officers approached them and one of them said that the area had a lot of drug activity and other crimes, they were checking for this type of criminal activity, the two men had been standing there for quite awhile, and the officers were going to investigate further. The officers asked the men for identification, received it and one of the officers ran a teletype check. One of the officers asked the defendant why he was nervous, sweating and shaking. He also asked whether he had any drugs. The defendant said no, lifted his hands above his head and told the officer to go ahead and search him. On appeal the Court held that no reasonable person would feel he or she was free to leave. This was an investigatory stop. Barna v. State, 636 So. 2d 571 (Fla. 4th DCA 1994).

              ww.     "Mere police questioning does not by itself constitute a seizure." Chambers v. State, 700 So. 2d 68 (Fla. 5th DCA 1997).

              xx.     In Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Court held "'that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.'" In Sequra officers were present in the apartment for 19 hours awaiting a search warrant and the Court ruled that this was reasonable. In the instant case, officers entered the house, after the husband had been arrested and the wife was still there. They conducted a protective sweep for weapons and secured the location until the warrant was secured and arrived. The court found that this was proper. Conner v. State, 701 So. 2d 441 (Fla. 4th DCA 1997).

               yy.     "A police officer's demand that a subject disclose or produce a concealed object constitutes a search." Thus, when an officer touched the defendant's pocket with his hand and asked him to remove the items, there was an unlawful search. K.L. v. State, 699 So. 2d 819 (Fla. 1st DCA 1997).

             zz.     “The encounter in this case became a nonconsensual investigative stop when Officer McVey physically prevented appellant from riding away on his bicycle.” Charton v. State, 716 So. 2d 803 (Fla. 4th DCA 1998).

             aaa.     During a consensual encounter deputies were talking with the defendant. One of them noticed a bulge in the defendant’s jacket. As soon as he saw the bulge, the deputy reached out and touched it. It was not hard or solid, so the deputy grabbed it, squeezed it, and let it go. The deputy immediately asked the defendant what it was. The defendant acknowledged that it was “reefer.” Deputies arrested the defendant. The trial judge denied a motion to suppress because the judge concluded that no reasonable person would have believed they were not free to walk away. On appeal the court reversed. “We find that Appellant had no choice in either complying or ignoring the Deputy’s ‘brief squeeze.’ The trial court’s emphasize on Appellant’s right to ignore the Deputy’s inquiry is misplaced because the inquiry was made after the Deputy touched Appellant’s jacket. The act of reaching, touching, feeling, and squeezing Appellant’s jacket constituted a show of authority which restrained Appellant’s freedom to move, comply, or otherwise terminate the encounter. Such a frisk turned the routine and consensual encounter into a ‘stop’ necessitating closer scrutiny.” Copeland v. State, 717 So. 2d 83 (Fla. 1st DCA 1998).

            bbb.     “In this case, after the deputy issued appellant the traffic citation, he engaged appellant in further conversation in an attempt to delay him; requested to search appellant's vehicle; and after this request was denied, told appellant that he still was going to have a canine walk around the vehicle. Under these circumstances, no reasonable person would have believed himself ‘free to leave.’” Summerall v. State, 777 So. 2d 1060 (Fla. 2d DCA 2001).

            ccc.     An officer approached the defendant, who appeared to be asleep in the vehicle. He asked to see identification. Instead of examining them and returning them, the officer retained them to run a computer check. The officer discovered an out-of-state warrant. A search of the vehicle incident to the arrest led to the discovery of cocaine. The trial judge denied a motion to suppress because this was a consensual encounter. On appeal, the court reversed. “We conclude that, in the present case, at the point in time after the officer had inspected appellant’s driver’s license, the consensual encounter had ended. When the officer retained it in order to investigate further by running a warrant check, no reasonable person would have felt free to leave.” Baez v. State, 814 So. 2d 1149 (Fla. 4th DCA 2002).

            ddd.     See consensual encounter cases below.

7.    Was the contact a consensual encounter, rather than a detention? (Back)

          a.    See detention cases above.

          b.    No Fourth Amendment interests are involved where officers ask an individual to step aside and talk with them. Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984).

          c.    Additional authorities which may be of value: Cross v. State, 560 So. 2d 228 (Fla. 1990); J.C.W. v. State, 545 So. 2d 306 (Fla. 1st DCA 1989); State v. Hughes, 562 So. 2d 795 (Fla. 1st DCA 1990); McLane v. Rose, 537 So. 2d 652 (Fla. 2d DCA 1989); State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. Simmons, 549 So. 2d 785 (Fla. 2d DCA 1989); Sharpless v. State, 549 So. 2d 735 (Fla. 2d DCA 1989); State v. Davis, 543 So. 2d 375 (Fla. 3d DCA 1989); Rada v. State, 544 So. 2d 1112 (Fla. 3d DCA 1989); State v. Castillo, 545 So. 2d 965 (Fla. 3d DCA 1989); Evans v. State, 546 So. 2d 1125 (Fla. 3d DCA 1989); Murtha v. State, 547 So. 2d 205 (Fla. 2d DCA 1989); State v. G.H., 549 So. 2d 1148 (Fla. 3d DCA 1989); Oliva v. State, 553 So. 2d 1284 (Fla. 3d DCA 1989); State v. Mendez, 540 So. 2d 930 (Fla. 4th DCA 1989); Weaver v. State, 548 So. 2d 1198 (Fla. 4th DCA 1989); Canion v. State, 550 So. 2d 562 (Fla. 4th DCA 1989).

          d.    Definition. (Back)

               (1)     Generally the test for whether there is merely a consensual encounter and not a detention is whether a reasonable person would believe he or she was free to go, but where the defendant is in a place that he or she would not want to leave such as a bus the test is whether a reasonable person would believe he or she was free to decline the officer's request or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). 389 (1991). See also State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991).

               (2)     “When a reasonable person is led to believe he is not free to leave a consensual encounter is transformed into a detainment, which is a fourth amendment seizure.” Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990); Hill v. State, 561 So. 2d 1245 (Fla. 2d DCA 1990). See also Clinton v. State, 780 So. 2d 960 (Fla. 5th DCA 2001). This is based on the “totality of the circumstances.” United States v. Mendenhall, 446 U.S. 554, 100 S.Ct.1870, 64 L.Ed.2d 497; State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990).

               (3)     A consensual encounter, not constituting a seizure, occurs when an officer contacts a citizen in a way which would cause a reasonable person to believe he was free to leave. Jacobson v. State, 476 So. 2d 1282 (Fla. 1985). A consensual encounter is one where a reasonable person would feel free to "disregard the police and go about the person's business." Voorhees v. State, 699 So. 2d 602, 608 (Fla. 1997).

               (4)     “In Popple, the Court recognized three levels of police-citizen encounters. The consensual encounter which involves only minimal police contact during which a citizen may choose to comply with, or ignore, the officers' requests; the investigatory stop where an officer may reasonably detain an individual temporarily once the officer has a reasonable suspicion that the person has committed or is about to commit a crime; and the arrest which must be supported by probable cause that a crime has or is being committed. The Popple Court noted that the one ‘significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity.’ Popple, at 187-88.” J.N. v. State, 778 So. 2d 440 (Fla. 3d DCA 2001).

          e.     Restrictions on officer’s conduct. (Back)

                     (1)     An officer is not prohibited from asking questions of any individual on the street without any cause for detention, but the individual is under no duty to remain and answer those questions. Hill v. State, 561 So. 2d 1245 (Fla. 2d DCA 1990).

                    (2)     During a consensual encounter one may not be detained against their will or frisked. Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990); Hill v. State, 561 So. 2d 1245 (Fla. 2d DCA 1990); State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990).

          f.    Factors to consider.  (Back)

                   (1)     Obviously the defendant was detained because he was not free to go even though the officer characterized his approach to the defendant as a "request". Dunbar v. State, 592 So. 2d 1230 (Fla. 2d DCA 1992).

                  (2)     A show of authority eliminates the consensual nature of an encounter. This may occur through: (l) the threatening presence of the officer, (2) the use of demanding language by the officer, or (3) the use of a demanding tone of voice. Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990).

                 (3)     Factors that are typically considered are any evidence that: (l) the defendant was not free to go; (2) the officer blocked the defendant's path; (3) the defendant was compelled to answer questions. State v. Scruggs, 563 So. 2d 717 (Fla. 3d DCA 1990).

                (4)     A consensual encounter occurred where: (1) the officer did not display a weapon; (2) the officer did not touch the defendant without consent; (3) the officer did not use language that indicated compliance was mandatory; (4) there was only one officer. State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990).

                (5)     There are three situations which have been identified as ones where a reasonable person might believe he or she was not free to go: (1) an officer brandishes a weapon; (2) an officer touches the suspect; or (3) an officer uses language or a tone indicating that compliance could be compelled. State v. Alioto, 588 So. 2d 17 (Fla. 5th DCA 1991).

                 (6)     As a result of a radio dispatch a deputy made contact with the defendant. Drugs were ultimately discovered. A motion to suppress was denied. The officer identified himself as a police officer in a loud voice while he illuminated the defendant's face with a flashlight. The defendant stopped and the deputy then motioned for him to come forward. Several other things happened that are not key to the decision. The contact with the defendant ultimately resulted in the discovery of drugs. The state argued that the initial contact was a consensual encounter. On appeal the court rejected this contention. "At the threshold of the residence, [the deputy] shined his flashlight in [the defendant's] face, stated in a loud voice, "Collier County Sheriff's Office," and motioned for [the defendant] to come toward him. We believe those actions were 'a show of official authority such that "a reasonable person would have believed he was not free to leave."'" State v. Hughes, 562 So. 2d 795, 797 (Fla. 1st DCA 1990), quoting Jacobson v. State, 476 So. 2d 1282, 1285 (Fla. 1985). In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Supreme Court listed 'use of language or tone of voice indicating that compliance with the officer's request might be compelled' as an example of a circumstance that might indicate a seizure. Id. 446 U.S. at 554, 100 S.Ct. at 1877. Chase v. State, 656 So. 2d 588 (Fla. 2d DCA 1995).

              (7)     "A police officer's request that a person stop is not, by itself, deemed to carry with it such coercion as would render an otherwise voluntary encounter with the police involuntary. The appropriate inquiry is whether the encounter carries with it specific circumstances which would indicate to a reasonable person that he was under restraint forbidding him to leave. State v. Davis, 543 So. 2d 375,376-77 (Fla. 3d DCA 1989). Even though appellant might not have felt free to leave, that is not the appropriate test - the correct test is whether a reasonable person would have believed he was not free to leave. State v. Daniels, 576 So. 2d 819, 822 (Fla. 4th DCA 1991). [The deputy] was not required to tell [the defendant] that he had a right to refuse the request to search. State v. Diaz, 549 So. 2d 759, 760-61 (Fla. 3d DCA 1989), rev. denied, 560 So. 2d 232 (Fla. 1990). In this case, competent and substantial evidence supports the trial court's finding that no indicia of coercion are present. [The deputy] did not display a badge, pull a gun, order [the defendant] to stop, or handcuff him. There is no indication that he use language or a tone of voice indicating that compliance would be compelled, nor is there any indication that the encounter became threatening in any manner." The court distinguished the decision in Sholtz v. State, 649 So. 2d 283 (Fla. 2d DCA 1995), where the court found that the search was not consensual. In that case the deputy "informed" the defendant that he wanted to do a pat down, whereas, in this case the deputy requested and got permission to search. Furthermore, in Sholtz the officer retrieved the contraband from the defendant's pocket; whereas, in this case the defendant retrieved the contraband from his own pocket. Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995).

            (8)     Officers saw the defendant at a resident known for drug activity. They made contact with him. During their conversation with him, one officer asked him if they could search his clothing for narcotics, paraphernalia or weapons. The defendant agreed. The officers discovered cocaine on his person. The trial judge suppressed the drugs because the officers did not have reasonable suspicion when they asked for consent. On appeal the court reversed. "The Fourth Amendment requires that searches and seizures be founded upon an objective justification.... where, however, no seizure takes place, the constitutional safeguards are not invoked." In this case there was no seizure. There was only a consensual encounter based on these facts: (1) the officer's tone of conversation with the defendant was casual; (2) the patrol car did not block the defendant's ability to move in any way; (3) no one told the defendant he was not free to go; (4) the officers never displayed a weapon; (5) the officers never touched the defendant before the search. State v. Albritton, 664 So. 2d 1049 (Fla. 2d DCA 1995).

            (9)     Officers received information that a drug transaction was taking place in a certain area. The officers encountered the defendant a minute after receiving the information. The officers were wearing police uniforms. They were in an unmarked car. No emergency equipment was activated. The officers did not draw their firearms. They got out of the car without blocking the defendant's path who was walking in their direction. One officer said: "[W]e got some information you're selling dope. You aren't dealing dope are you?" The defendant responded: "[N]ope, I ain't selling dope," and "what I got are these and they're not real." The defendant handed the officer a tube containing what appeared to be rock cocaine. The defendant said he did not think selling fake drugs was illegal. A later test determined that the substance was in fact cocaine. The trial judge granted a motion to suppress. On appeal the court reversed on the grounds that this was a consensual encounter. "[T]he officers ... did not display a badge or a gun, order the appellee to stop, handcuff him, use language or a tone of voice indicating that compliance would be compelled, nor was there any indication that the encounter became threatening in any manner. State v. Livingston, 681 So. 2d 762 (Fla. 2d DCA 1996).

           (10)     "The Court in Mendenhall stated that factors that might indicate a seizure, even where the individual did not attempt to leave, include 'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language of tone of voice indicating that compliance with the officer's request might be compelled.'" State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996).

           (11)     Officers were walking through an area known for drug problems. The officers saw the defendant sitting on a stoop. Another man was standing next to him. Neither man was involved in any suspicious activity. The officers approached them for the purpose of determining why they were there. The two men responded to a request for identification. One of the officers asked the men whether they had any thing on their person that they should not have. Both responded negatively. One officer asked for permission to search the two men. One agreed. The defendant did not. While the officer was searching the other man, the defendant placed his hands in his pockets. An officer asked the defendant to remove his hands from pockets for officer's safety. The defendant once against placed his hands in his pockets. The officer again asked the defendant to remove them. The defendant complied. The officers' focus was on the other man. A third time the defendant put his hands in his pockets. The officer asked the defendant to remove his hand from his pockets. This time the defendant pulled his hand out of his pockets and dropped a brown piece of paper to the ground along with the defendant's money and change. An officer inspected the paper and found that it contained rock cocaine. "The time during which this encounter between the officers, the Defendant, and the third [sic] person was a minimal amount of time to facilitate identification and conduct a search agreed upon by the third person [the other gentleman]. At no time was the Defendant detained. He was free to leave at any time.... [T]he Defendant voluntarily removed the contents of his pockets without direction, suggestion, or coercion from the officers." The defendant was arrested. The request for the defendant to remove his hands from his pocket was for officer's safety. The request was not based on any articulable suspicion that the defendant possessed any weapons or contraband. The defendant was not acting in any threatening manner towards the officers. These were the findings of the trial judge, which the appellate court accepted as true. The trial judge granted the motion to suppress because of the judge's belief "that a citizen's response to an officer's direction constitutes a submission to authority." On appeal the court found that the trial judge's conclusions of law were inconsistent with his findings of fact. The initial contact with the defendant was a routine and proper consensual encounter. The court remanded to the trial court to determine whether the trial judge applied the right constitutional test. The trial judge talked about cases dealing with submission to authority. If a reasonable person would have believed he was free to leave, then those cases are not controlling. " If the trial court determines on remand that a reasonable person would have thought he was free to leave, then no seizure occurred when the officer asked [the defendant] to remove his hands from his pockets, and no Fourth-Amendment violation was committed." If the defendant remained on the stoop voluntarily and freely removed the evidence from his pocket and then dropped it on the ground, there would be no Fourth-Amendment challenge. The court cites several good opinions on the significance of the officer's request that the defendant remove his hand from his pocket. The court said also that in determining the significance of those requests, the trial judge must consider "the context of the events and the totality of the surrounding circumstances, one of which is the officers' requests." These factors will affect the resolution of the issue concerning the request that the defendant remove his hands from his pockets. Once again that turns on what a reasonable person would believe. State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996).

               (12)     The fact that the officer would not have let the defendant go was not dispositive. Clearly a reasonable person would have believed they were free to go. The officer did not tell the defendant that he was not free to go; there was no physical touching or show of force; there was no threatening presence of several police officers; there was no display of weapons by an officer; and there was no use of language or tone of voice indicating that compliance would be compelled. Chambers v. State, 700 So. 2d 68 (Fla. 5th DCA 1997).

             (13)     Some factors to consider in determining whether there was a consensual encounter are: “the threatening presence of several officers, the display of weapons, physical touching, and use of language or tone indicative of authority.” “[I]n the instant case, the appellant was approached by three uniformed officers who were in marked squad cars pulled up along either side of the appellant. Appellant was then told to stop and was asked his name and address.” On appeal, the court ruled that this was a detention. J.N. v. State, 778 So. 2d 440 (Fla. 3d DCA 2001).

          g.    Other examples of consensual encounters. (Back)

              (1)     It was a consensual encounter where officer approached a parked car, asked the occupant a few questions about his identity and why he was in the area. The officer ran a routine check on the car and identification. Lightbourne v. State, 438 So. 2d 380 (Fla. 1983).

             (2)     Where the officer is engaged in a consensual encounter and the involved individual behaves in a way that creates reasonable grounds to believe that the individual may be armed with a dangerous weapon, the officer may do a pat down. Lightbourne v. State, 438 So. 2d 380 (Fla. 1983); State v. Lowe, 789 So. 2d 1187 (Fla. 4th DCA 2001); Johnson v. State, 785 So. 2d 1224 (Fla. 4th DCA 2001).

            (3)     According to Immigration and Naturalization Serv. v. Delgado, 466 U.S. 210: "'Interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, such questioning does not result in a detention under the Fourth Amendment.'" State v. E.W., 599 So. 2d 1042 (Fla. 4th DCA 1992). See also State v. Barnett, 572 So. 2d 1033 (Fla. 2d DCA 1990).

           (4)    Mere questioning is neither a search or a seizure even if it relates to the subject of the stop. State v. Allende, 791 So. 2d 588 (Fla. 3d DCA 2001).

           (5)     Approaching a parked car in a public parking lot was a brief encounter. Roberts v. State, 566 So. 2d 848 (Fla. 5th DCA 1990).

           (6)    The defendant was pushing a motorcycle and approaching an officer's patrol car. He was attempting to start the bike and almost walked into the officer's car. The officer asked him some questions about the bike because he thought it might be stolen. This was a consensual encounter. The defendant was free to refuse to answer and Miranda rights were not required. State v. DeCosey, 596 So. 2d 149 (Fla. 2d DCA 1992).

           (7)    A consensual encounter did not become a detention merely because the officer asked the defendant what he had in his hand since there was no show of authority. State v. Boone, 613 So. 2d 560 (Fla. 2d DCA 1993).

           (8)    An officer was aware that several rental vehicles had been stolen. She saw a van with a rental tag parked at a housing project. She approached the van and told the defendant, who was exiting, that she needed to speak with him about the van and asked for his driver's license. Another officer asked the defendant if he had rental papers. The defendant said they were in the van and gave his consent to get them. The officer discovered a short-barreled shotgun in plain view. The defendant's motion to suppress was granted by the trial court on the grounds that the evidence was secured as a result of an illegal detention. On appeal the court reversed because this was a consensual encounter. "The officer's acts of asking the appellee about the vehicle and for his driver's license and rental papers did not transform the encounter into a stop." State v. Carley, 633 So. 2d 533 (Fla. 2d DCA 1994).

         (9)    There was not a detention where the officer ordered the defendant to come over and talk with him. Grant v. State, 596 So. 2d 98 (Fla. 2d DCA 1992).

         (10)    When an officer said to the defendant, "Hey, man, come here a minute" there was no detention. It was a consensual encounter. Peek v. State, 575 So. 2d 1380 (Fla. 5th DCA 1991).

         (11)    There was a consensual encounter in this case. A car was parked on an access road to a causeway at 3:00 a.m. "The officers approached in their patrol car so that they could ask some questions...." State v. Wimbush, 668 So. 2d 280 (Fla. 2d DCA 1996).

          (12)    An officer saw the defendant and two other males standing in front of a vacant house which had been actively involved in drug trafficking. As the officer drove up, one of the people other than the defendant dropped an envelope on the ground. Officers left their cars and approached the three men. The envelope contained marijuana; therefore, one officer arrested the man who had dropped that envelope. The other officer asked the defendant and the remaining man what they were doing and if they had identification. The defendant gave the officer his driver's license. The officer ran the men's names for warrants as well as the defendant's driver's license. There was a parked car nearby. The officer determined that the registered owner was the defendant. The officer returned the license to the defendant. One of the officers asked for permission to search the defendant's car. He agreed. They found a gun under the seat of the car. The defendant was arrested. The trial judge granted a motion to suppress on the grounds that the gun had been secured through an illegal stop. On appeal the court disagreed and reversed. "We hold that the trial court erred in holding that [the defendant] was illegally detained. there was no constitutional violation in [the officer] approaching [the defendant], asking for identification, receiving [his] driver's license, and running a check for warrants." This was a consensual encounter. State v. Chang, 668 So. 2d 207 (Fla. 1st DCA 1996).

           (13)    An officer's request for the defendant to remove his hands from his pockets does not cause a consensual encounter to become a detention, when done for the purpose of an officer's safety. State v. Ward, 681 So. 2d 733 (Fla. 2d DCA 1996).

           (14)    Based on Orlando's Youth Protection Ordinance officers approached the defendant and asked him his age and for identification. He was in downtown Orlando during prohibited hours and he looked under 18. When the defendant could not produce identification, the officer detained him. A search produced evidence. A motion to suppress was denied. On appeal the court held that "There is no doubt that the first officer had the right to stop [the defendant] to ask his age and for identification, even though he did not violate any law. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The officer could ask questions as long as he did not coerce [the defendant] or interfere with his right to leave. Id. Consensual police encounters of this nature involve minimal intrusions into the lives of citizens and do not violate constitutionally protected interests under the Fourth Amendment. (citations omitted). We therefore conclude the first contact with [the defendant] was consensual. (citation omitted). However, once [the defendant] answered the officer's questions, the officer could not detain him absent an articulable suspicion that [the defendant] had committed, was committing, or was about the commit a crime." Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

           (15)    An officer was patrolling in the early evening. He saw the defendant sitting on a bucket in an open field near an intersection. The defendant was trying to conceal his right hand. The officer slowed down to take a closer look. The defendant continued to conceal his hand and started fidgeting. The officer parked his car and walked toward the defendant but said nothing. When the officer was two to three feet from the defendant, the defendant took off running but fell almost immediately because he tried to run through some bushes. The officer helped the defendant to his feet and asked for identification. The defendant gave his name. The officer asked what the defendant was doing in the area and whether he had any weapons or narcotics on him. the defendant responded that he had no weapons or narcotics. The defendant then agreed to a search. The officer did a full body search and found cocaine. The trial judge granted a motion to suppress. On appeal the court reversed. The court found that this meeting between the officer and the defendant was a consensual encounter. State v. Gainey, 688 So. 2d 997 (Fla. 2d DCA 1997).

          (16)    The initial consensual encounter was not converted into a detention when the officer asked the defendant to remove his hands from his pockets for officer's safety. But it was converted into a detention when the officer grabbed the defendant's arm. King v. State, 696 So. 2d 860 (Fla. 2d DCA 1996).

         (17)    Reading Miranda rights converted a consensual encounter into a detention. No reasonable person would believe he or she was free to go after those rights are read. Raysor v. State, 795 So. 2d 1071 (Fla. 4th DCA 2001).

         (18)    An officer approached the defendant and asked him if he had any weapons or drugs or stolen TV's or anything like that, to which the defendant responded, "'no I don't, go ahead and search me.'" The officer did and discovered drugs. The trial court ruled that by asking about criminal conduct, the officer converted the consensual contact into a detention. On appeal the court disagreed. "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.... 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." The opinion contains an excellent list of cases as examples of coercive and noncoercive activity. State v. Ferrell, 705 So. 2d 1051 (Fla. 1st DCA 1998).

           (19)     “An officer saw appellant riding a bicycle with the flow of traffic on the right side of the road. Although the officer did not observe appellant violating any traffic laws, he was concerned that the appellant was impeding traffic and causing cars to back up. Without activating his emergency lights or siren, Officer Finnegan pulled off to the side of the road to speak with appellant. When the officer got out of his patrol car, he made eye contact with the appellant and said, ‘Come here for a minute, can I talk to you?’ Appellant pulled up next to the officer, got off his bicycle, and said, ‘Sure.’ The officer then asked appellant for identification. Appellant promptly produced it, but he became very nervous and started shaking. After conducting a warrant's check, the officer advised appellant that he was impeding traffic by riding his bicycle so slowly and warned the appellant to be careful. Noticing that appellant was still shaking and growing more nervous, Officer Finnegan asked if he could search the appellant. The appellant agreed. The officer's search uncovered six pieces of crack cocaine in appellant’s sock. Appellant moved to suppress the cocaine, contending that it was obtained during an unlawful investigatory detention. He argued that he was stopped and detained by Deputy Finnegan without founded suspicion of unlawful activity, and, as a result, his subsequent consent to be searched was involuntary. The state conceded that there was no lawful basis for a stop, but countered that the contact between the appellant and the deputy was a consensual encounter and that the appellant voluntarily consented to the search.” The trial court denied the motion on the grounds that this was a consensual encounter. On appeal, the court affirmed. “Deputy Finnegan began by saying to appellant, ‘Come here ...’ He ended this statement by asking appellant, ‘[m]ay I talk to you?’ The state argues that the deputy's statement, when viewed in its entirety, and the surrounding circumstances lacked indicia of coercion to convey to a reasonable person that he was not free to disregard the officer and continue on his way. (citation omitted) The record supports the trial court's finding that the contact between Deputy Finnegan and appellant was a consensual encounter. As the court noted in its written order, there was no evidence suggesting that the deputy's manner was ‘confrontational, coercive, oppressive or dominating.’ The trial court properly applied the ‘reasonable person’ test to its analysis and evaluated the totality of circumstances surrounding the roadside encounter in concluding that the encounter was consensual. The record also supports the court's determination that appellant voluntarily consented to the search of his person.”