When Does A Police Encounter Turn Into An Illegal Seizure?

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When Does A Police Encounter Turn Into An Illegal Seizure?

By Jaime E. Suarez

Recently Florida’s First District Court of Appeal revisited the following issue: at what point does a police encounter turn into an illegal stop or seizure? Specifically, when someone consents to a search by the police, under what circumstances is that consent “involuntary”?

The Facts1

One evening, at approximately 7:15 p.m., a car with a driver and a passenger was stopped by a uniformed Escambia County sheriff's deputy because it had run a stop sign. A second deputy arrived to assist. The car was a rental, with a Maryland tag. Upon request, the driver produced the rental contract and his driver's license. The deputy asked the passenger for identification. The passenger said he did not have his license with him, but gave his correct name.
After finding nothing out of order, and instead of giving the driver a citation and permitting the car to proceed on its way, the deputy asked the driver “if he had anything illegal on his person or in the car.” The driver responded that he did not, whereupon the deputy asked for consent to search the car. The driver gave his consent.
The deputy then walked to the passenger side of the car, and “asked” the passenger to step out so that he might search the car. As soon as the passenger opened the door, the deputy “asked” the passenger to “place his hands on top of the car.” While the passenger was in that position, the deputy asked if the passenger “had anything illegal on his person.” The passenger responded that he did not, whereupon the deputy “asked for consent to search his person.”
After the passenger gave his consent, the deputy proceeded to frisk him. During the frisk, a bag fell out of the passenger’s pant leg. The deputy asked what was in the bag, and the passenger responded that it contained a quarter pound of marijuana. At that point, the passenger was arrested, and the driver was given a citation for running a stop sign. It is undisputed that, until the passenger had been frisked, the deputy had no reason to believe that appellant had committed any crime, or that he was armed.

The Motion to Suppress

Thereafter the passenger was charged with selling, manufacturing or delivering marijuana, or possessing marijuana with intent to sell, manufacture or deliver it.
The passenger filed a motion to suppress, arguing that, when he was “asked” to get out of the car and put his hands on the roof, he was “seized” for Fourth Amendment purposes because a reasonable person in that position would not have felt free to leave.2 He also argued that the “consent” to search his person which was given while he was standing with his hands on the roof of the car was “nothing more than a submission to authority and, therefore, the marijuana found during the search must be suppressed.”3
In response, the state argued that the passenger had not been seized at any time prior to his consent to search, and that, therefore, his consent was voluntary. The trial court agreed with this argument. Therefore the trial court denied the passenger’s motion to suppress, ruling that the passenger’s consent had been “voluntary.”4 The passenger then pled guilty as charged, and was sentenced to one year and a day in state prison.

The Appeal

The Fourth Amendment to the United States Constitution states as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In ruling on whether the search of the passenger was legal or not, the Florida’s First District Court of Appeal stated that “[t]he search must stand or fall on the validity of the consent” given by the passenger.5
In its analysis the court stated that when consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.... The consent will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.6

What Is A Seizure? - Use Common Sense

The Florida Supreme Court established a test to determine whether a particular encounter amounts to a seizure for Fourth Amendment purposes. To determine whether a particular encounter constitutes a seizure, “a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.”7
In this appeal, Florida’s First District Court of Appeal stated that “[c]ommon sense leads us to conclude that a reasonable person told by an armed, uniformed deputy to exit a vehicle and place his or her hands on the roof of the vehicle would not feel free to decline and walk away.8 The court used examples from other cases in support of their point. For instance, a defendant was illegally seized when he submitted to an officer's “request” that he lean toward, and place his hands on, a car.9 Furthermore, a defendant “was seized when the officer ordered him to place his hands on the back of the patrol car.”10 Additionally, a consensual encounter turned into a “stop” when an officer told defendant to put his hands on the police cruiser.11 Finally, a defendant was seized when the officer ordered him to step out of the car and put his hands in the air.12

Asking vs. Ordering Does Not Make A Difference

The court also recognized the state’s argument that no seizure occurred because the deputy merely “asked” appellant to exit the car and put his hands on the roof. In response, the court stated that whether the directive is characterized as a request or an order does not matter because the question remains whether the directive constituted a show of authority with which a reasonable person would feel obliged to comply.13
To further illustrate its point, Florida First District Court of Appeal cited to the case Dees v. State, where the court stated:
Deputy Salter's directions to [defendant] Dees to exit the vehicle and to remove her hand from her pocket constituted a show of authority that restrained Dees' freedom of movement, because a reasonable person would conclude that she was required to comply with the officer's directives. Merely stating that the officer “asked” Dees to get out of the van and “asked” her to take her hand from her pocket, does not change the fact that these statements were directives from a law enforcement officer, rather than simple requests that Dees was free to disregard.14

The Court’s Conclusion

In this case, Florida’s First District Court of Appeal concluded that the passenger was illegally seized for Fourth Amendment purposes when he was directed to exit the vehicle and place his hands on the roof15. Because the passenger was illegally seized, his consent to search his person, (given while he was standing with his hands on the roof of the car), was involuntary.16
Because his consent to search was given involuntarily, the court ruled that the marijuana found as a result of that search should have been suppressed.17 Therefore Florida’s First District Court of Appeal ruled that it was error for the trial court to deny the passenger’s Motion to Suppress.18
As a result, the passenger’s conviction was reversed.19
1 As stated in Davis v. State, --- So.2d ----, 2006 WL 3698906, 31 Fla. L. Weekly D3165 (Fla. 1st DCA 2006) (outlining the facts viewed in a light most favorable to the State).
2 See Davis v. State, 2006 WL 3698906 at *1 (Fla. 1st DCA 2006).
3 See Id.
4 Id.
5 Id.
6 See Davis v. State, 2006 WL 3698906 at *2 (Fla. 1st DCA 2006) (quoting Norman v. State, 379 So.2d 643, 646-47 (Fla.1980) (citations omitted).
7 Id. (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).
8 Id.
9 Id., (citing United States v. Brown, 401 F.3d 588, 594-95 (4th Cir.2005)).
10 Id., (citing McNeil v. State, 746 So.2d 547, 548 (Fla. 5th DCA 1999)).
11 Id., (citing State v. Brown, 616 So.2d 124, 126 (Fla. 2d DCA 1993)).
12 Id., (citing D.N. v. State, 805 So.2d 63, 65 (Fla. 3d DCA 2002)).
13 Id., (citing Popple v. State, 626 So.2d 185, 188 (Fla.1993)).
14 See Davis v. State, 2006 WL 3698906 at *3 (Fla. 1st DCA 2006) (quoting Dees v. State, 564 So.2d 1166, 1168 (Fla. 1st DCA 1990)).
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.