County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Defendant’s cooperation with law enforcement was not voluntary where two uniformed police officers arrived in squad cars at defendant’s house, told him they were there to investigate reports of drug dealing at the residence, obtained his ID, and told him they “needed to talk to him.” Under circumstances of this case, a reasonable person would have felt compelled to comply with the officer’s requests. Judgment and sentence reversed.  Fleming v. State, No. CRC 06-52 APANO, (Fla. 6th Cir. App. Ct. Feb. 14, 2008).

 

 

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

 

 

 

TIMOTHY FLEMING

 

            Appellant,

Appeal No. CRC 06-52 APANO

UCN522006AP000052XXXXCR

v.

 

STATE OF FLORIDA

 

            Appellee.

________________________________/

 

 

Opinion filed ________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge John Carassas

 

J. S. Lucas Fleming, Esquire

Attorney for appellant

 

Jason Thomas, Esquire

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the defendant, Timothy Fleming’s, appeal from a decision of the Pinellas County Court denying his motion to suppress. The defendant pleaded no contest to possession of marijuana charges, reserving his right to appeal the trial court’s decision denying his motion to suppress. After reviewing the briefs and record, this Court reverses the judgment and sentence.

The standard of review in this appeal of a motion to suppress evidence allegedly obtained by an improper search and seizure is de novo. See Orleans v. United States, 517 U.S. 690 (1996). “A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, so long as those findings are supported by the record. However, a suppression order that turns on an issue of law is reviewed by a de novo standard of review.” Underwood v. State, 801 So.2d 200 (Fla. 5th DCA 2001). In addition, an appellate court’s determination of whether or not a defendant’s consent was objectively voluntary is de novo. See Taylor v. State, 848 So.2d 1191 (Fla. 5th DCA 2003).

The police received information that drug dealing might be taking place at a particular address and two uniformed officers went with their marked cruisers to investigate one Sunday morning at approximately 9:00 A.M. They knocked on the door and the defendant opened it, came outside, and closed the door behind him. One officer introduced himself and told the defendant they were there to talk about suspicious activity involving drug dealing. Specifically, the officer said they “needed to talk to him” (R. 28, 40) “reference the drug dealing, suspicious activity.” (R. 28). The officer obtained ID from the defendant and asked him if they could go inside to search the residence, but the defendant said no. The officer then asked if they could go inside to continue the conversation, but the defendant again said no. During the conversation, which lasted about ten minutes according to the officer and about 30 – 45 minutes according to the defendant, the officer asked the defendant why someone would say he had suspicious activity at his house. The officer also asked the defendant if he used illegal drugs, the defendant said yes. The officer asked if the defendant used marijuana, the defendant replied yes. He said he bought it a week ago. The officer asked the defendant if he had any marijuana he could give him, the defendant said that he did. The officer said: “Sir, could you get me the marijuana.” (According to the defendant the officer said: “Go get it.”). The defendant then went inside his home, closed the door a bit, and returned two minutes later with a clear plastic bag containing a green leafy substance. One of the officers, both of whom had remained on the porch the entire time, tested the contents of the bag. It was presumptively marijuana. The officer then issued the defendant a notice to appear, and the defendant was ultimately charged with possession of marijuana. At no point in the conversation did the officer tell the defendant that he did not need to talk to him or that he could close the door and walk away. The defendant testified that he felt he had to speak with the officers because he felt intimidated. He also testified that the officers’ demeanor was aggressive. In contrast, the officer testified the conversation was very calm, cool, collected.

The defendant filed a motion to suppress, claiming that he was coerced into cooperating with the police. The trial court denied the motion. It is that decision that is the subject of this appeal.

The defendant claims that the trial court erred in denying his motion to suppress. The trial court found the entire encounter consensual, but the defendant claims the police coerced him into bringing them the bag of marijuana. In support of his argument, the defendant cites Kutzorik v. State, 891 So.2d 645 (Fla. 2d DCA 2005) and Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004).  

In Kutzorik, the appellate court reversed the trial court’s order denying the defendant’s motion to dismiss because it found the facts of the case similar to those in the Miller case. The Second District Court quoted approvingly the Miller court’s statement of the law in this area.

In Miller, three officers stopped the defendant and her companion as she was about to leave her home. One of the officers asked the defendant if she lived at the house, she said she did but she was just about to leave. The officer dissuaded her from leaving by saying he “needed to speak with her reference some possible drug activity.”  She was also told it would be better if she went inside so the neighbors would not see the investigation take place. She acquiesced. The officers asked if the defendant had any drugs on the premises, she said yes and retrieved them. She was ultimately arrested for possession of marijuana.

The Miller court held the evidence should be suppressed. The court noted its inquiry was whether or not the seizure occurred because of a show of authority. The court stated: “[i]f the circumstances would cause a reasonable person to conclude that he or she is not free to decline the officers’ requests or otherwise terminate the encounter, then the encounter is a seizure requiring, at a minimum, reasonable suspicion as a prerequisite.” Id. at 586. The court went on to note that among the factors it had to consider in its analysis were the place and time of the encounter, the number of officers, and the words and actions of the officer. No one factor is dispositive, but the court noted it was to consider the totality of circumstances of the encounter.

First, the court in Miller found the fact the encounter took place at the defendant’s house, rather than a public place, was important. It reasoned that in a public place, a citizen could ignore the police, secure in the knowledge that his or her identity is unknown; but “[w]hen the encounter occurs at a citizen’s own residence, conversely the citizen does not enjoy the anonymity of a random street encounter.” Id. The court further reasoned that this “unsettling revelation” is made worse when the officers make it known to the citizen that he or she is the suspect in a specific criminal investigation. Id.

The Miller court also focused particularly on the words and actions of the officer, finding it perhaps the most significant factor in the case. The actual words the officer spoke to the defendant: that he “needed to speak with her reference some possible drug activity”, were considered by the court to be such that “a reasonable person could conclude that the officer’s ‘need’ was based on some bona fide authority to detain her.” Id. at 190.

The court concluded that based on the location of the encounter, the words of the officer, and the number of the officers (3 uniformed officers), a reasonable person would have felt compelled to comply with the officers’ requests. Accordingly, the court reversed the trial court’s denial of the defendant’s motion to suppress.

Applying the reasoning in Miller to the case at bar, this Court must similarly find that the evidence must be suppressed for several reasons. First, as in Miller, the defendant in the case at bar was approached at his residence. Second, as in Miller, he was told he was the subject of a specific criminal inquiry. Third, and most importantly, the actual words used by the officer in Miller (he “needed to speak with her reference some possible drug activity”) are virtually the same ones used by the officer in the case at bar (that he “needed to talk” “reference the drug dealing, suspicious activity”) when talking to the defendant. Fourth, there were three uniformed officers in Miller, and in the case at bar two uniformed officer approached the defendant but they arrived in two marked cruisers. Although there are distinctions between Miller and the case at bar, they are insufficient to justify a different result. Under the circumstances of this case, a reasonable person would believe that compliance with the “requests” of the officer was required. Therefore, this Court finds that the defendant’s actions were not voluntary; he was merely acquiescing to authority. Accordingly, the trial court should have granted the defendant’s motion to suppress.

IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and this case is remanded to the trial court with instructions to discharge the defendant.

            DONE AND ORDERED in Clearwater, Pinellas County, this _____ day of February, 2008.

 

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Court Judge

 

 

 

                                                                        ____________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

 

 

 

                                                                        _____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

 

            Honorable John Carassas

 

                        J.S. Lucas Fleming, Esquire