State v. PooleState v. Poole
The state appeals the trial court‘s order granting appellee‘s motion to suppress evidence. The court concluded that the evidence was obtained through an illegal stop and seizure. We disagree and reverse.
The facts, which are basically undisputed, are that on November 7, 1997, Officer Carl Scott was on patrol in a known narcotics area conducting an area canvas check, which he deemed to be an investigation. At the time, he was accompanied by his plain clothed deputy chief. Officer Scott, however, was in uniform and drove a marked police vehicle. At approximately 1:10 in the afternoon, Officer Scott observed the appellee, Daile Poole a/k/a Gail Lee Poole, sitting alone on a crate against a wall on a street corner. Officer Scott knew that Poole was a narcotics user, but he conceded that he had no reason to believe that she was involved in any criminal activity at the time that his attention was drawn to her.
Officer Scott decided to stop his car and approach Poole. Both he and his plain clothed deputy chief exited the vehicle. As the two officers approached Poole, they stood next to each other and approximately one to two feet away from where Poole was seated on the crate. The deputy chief identified himself and the two officers then asked Poole whether she had any narcotics. Poole answered “yes” and simultaneously stood up and pulled out a homemade crack pipe from her pants. She was arrested and charged with possession of cocaine.
Poole filed a motion to suppress the crack pipe and all statements made by her, arguing
The question of whether a seizure occurred for purposes of the Fourth Amendment depends upon whether under the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave and terminate the encounter with the police. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Voorhees v. State, 699 So.2d 602, 608 (Fla.1997); State v. Ferrell, 705 So.2d 1051, 1052 (Fla. 1st DCA 1998). Based upon the undisputed circumstances of this case, we agree with the state that the encounter was purely consensual in nature and that the evidence obtained was not the product of an unlawful search and seizure.
Law enforcement officials do not violate the Fourth Amendment by merely approaching an individual on the street or other public place and asking that individual whether he or she is willing to answer some questions, by putting questions to the individual, if the person is willing to listen, or by offering into evidence, in a criminal prosecution, that the individual voluntarily answered such questions. See Royer, 460 U.S. at 496, 103 S.Ct. 1319; see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Ferrell, 705 So.2d at 1052; State v. Livingston, 681 So.2d 762, 764 (Fla. 2d DCA 1996); State vs. Scruggs, 563 So.2d 717, 718 (Fla. 3d DCA 1990); State v. Simons, 549 So.2d 785, 786 (Fla. 2d DCA 1989). An individual is “seized” for purposes of the Fourth Amendment only when, by means of physical force or a show of authority, his or her freedom of movement is restrained. See Mendenhall, 446 U.S. at 553, 100 S.Ct. 1870. Circumstances which might be indicative of a seizure “would be 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 or tone of voice indicating that compliance with the officer‘s request might be compelled,” Id. 446 U.S. at 554, 100 S.Ct. 1870, while a significant 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 reasonable objective grounds for doing so.” Simons, 549 So.2d at 787.
In the instant case, the evidence is uncontroverted that as the officers approached Poole to inquire whether she had drugs, they displayed no weapons nor did they, by language or actions restrict her ability to leave or refuse to answer their questions in any way. In response to their question, Ms. Poole voluntarily stood up, responded “yes” and handed the crack pipe to the officers. While it is certainly true that most citizens would ordinarily respond to a police request, the fact that they do so without first being told that they are free to decline the request does not vitiate the consensual nature of their response. See id.; State v. Avery, 531 So.2d 182, 182 (Fla. 4th DCA 1988). Moreover, in the absence of any indicia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone, does not convert an otherwise consensual encounter into an unlawful seizure or detention. See Ferrell, 705 So.2d at 1052 (finding that encounter where officer approached known drug user and asked him if he had drugs and defendant responded “no, I don‘t, go ahead and search me” spreading his arms and legs whereupon officer found cocaine held to be consensual); Livingston, 681 So.2d at 762 (finding a consensual encounter where officer asked defendant
For all of the foregoing reasons, we conclude that the trial court erred in granting the motion to suppress and we reverse accordingly.
Reversed.