COUNTY CRIMINAL COURT: CRIMINAL LAW – Search and Seizure – Stop -

Police officer ordering defendant to “come here a minute” was a stop and not a consensual encounter. Order granting motion to suppress affirmed. State v. Macnider, No. CRC 05-46 APANO (Fla. 6th Cir.App.Ct. May 23, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 05-46 APANO

     UCN522005AP000046XXXXCR

WILLIAM MACNIDER

 

            Appellee.

________________________________/

 

Opinion filed _____________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Thomas Freeman

 

Della Jensen, Esq.

Assistant State Attorney

 

David Moran, Esq.

Assistant Public Defender

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            At approximately 11:30 at night, a police officer observed the defendant and two other individuals huddled behind a parked car. The officer was in his police cruiser. He then told the defendant to “come here for a minute.” The defendant complied and approached the officer. As the defendant approached the police cruiser, he threw away an object that he had in his hand. The officer retrieved the object, and the defendant was ultimately charged with possession of marijuana and drug paraphernalia. The defendant filed a motion to suppress that was granted by the trial court, and the State is appealing that decision.

             “[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, 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.” Pagan v. State, 830 So.2d 792 (Fla. 2002).  Whether or not the application of the law to the facts establishes an adequate basis for probable cause, however, is subject to a de novo standard of review. See Nicholas v. State, 857 So.2d 980 (Fla. 4th DCA 2003).

            The State contends that the officer’s encounter with the defendant was consensual. It argues that the police may approach anyone on the street and ask to speak with them. It is then up to the individual to comply or not. The State contends that the officer in the case at bar merely asked the defendant to come to speak with him, and the defendant voluntarily complied.

The standard to determine if the encounter was consensual or not is “whether a reasonable person would believe he was free to leave.” See Popple v. State, 626 So.2d 185 (Fla. 1993);  State v. Wilson, 566 So.2d 585 (Fla.2d DCA 1990). The facts show that the officer commanded or ordered the defendant to approach him. Under the circumstances of this case, this Court holds that a reasonable person would not view the officer’s statement as a request that could be declined. Instead, a reasonable person would view the statement as an order that had to be obeyed. The defendant only acquiesced to the officer’s show of authority. The stop, therefore, was not voluntary or consensual. The State makes no argument that the officer had any legal justification to make a stop, and the record would not support such a contention. Accordingly, the officer’s stop of the defendant was improper, and the trial court was correct to grant the defendant’s motion to suppress.

            IT IS THEREFORE ORDERED that the decision of the trial court is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of May, 2006.

 

                                                                        ____________________________

                                                                                    J. Thomas McGrady

                                                                                    Circuit Judge

 

 

 

                                                                        ____________________________

                                                                                    R. Timothy Peters

                                                                                    Circuit Judge

 

 

 

 

                                                                        ______________________________

                                                                                    John A. Schaefer

                                                                                    Circuit Judge

 

cc:        State Attorney

 

            Public Defender

 

            Judge Freeman