IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D16-647
JORDAN CHRISTOPHER BEANS,
Appellee.
________________________________/
Decision filed March 31, 2017
Appeal from the Circuit Court
for Orange County,
Alicia Latimore, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellant.
James S. Purdy, Public Defender, and
Nicole J. Martingano, Assistant Public
Defender, Daytona Beach, for Appellee.
TORPY, J.
The State challenges the order suppressing a firearm and cannabis found in
Appellee’s car. The sole argument advanced by the State is that the encounter between
Appellee and police officers was, as a matter of law, consensual. Accordingly, it urges
that the trial court erred in concluding that Appellee was seized prior to the discovery of
incriminating evidence in his car. Concluding that no error has been demonstrated on the
legal theory advanced by the State, we affirm.
The uniformed police officers here responded to a complaint involving noise
coming from Appellee’s apartment. Upon arrival, they knocked on the door. When
Appellee opened the door, they could smell the odor of burning marijuana. Appellee, upon
seeing the officers, immediately slammed the door. As one of the officers characterized
the encounter: “he slammed the door in my face quite rudely.” At that point, the officers
continued to knock on the door “[b]ecause we could smell marijuana coming from the
apartment.” Appellee did not open the door again. Although the officers left the building,
they remained in the complex parking lot and pondered whether to get a search warrant.
After a few minutes, the officers saw Appellee and a female walk down the stairs, enter a
car, and drive away. They followed him in a marked police car through a series of turns
until Appellee stopped in a drive-thru at a fast-food restaurant. The officers followed
Appellee because “[Appellee and his companion] could have taken whatever marijuana
was in the apartment with them in the car . . . . And [the officers] wanted to ask [Appellee]
why he slammed the door in [their’] face[s].”
The two officers approached Appellee’s car within thirty seconds after it stopped
in the drive-thru. Appellee’s car was positioned behind another car in the drive-thru,
preventing him from driving forward. One officer approached the driver’s side of
Appellee’s car; the other walked behind the car and approached the passenger’s side.
The officer on Appellee’s side immediately confronted him with the question “why he had
slammed the door in [their] face.” Appellee appeared noticeably nervous when confronted
by the officer. Although Appellee testified that he did not feel free to leave at that point,
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the officer testified that Appellee was in fact free to leave, although he did not
communicate that fact to Appellee. During the ensuing conversation, Appellee moved his
foot, which revealed a concealed firearm and culminated in his arrest and the search of
the car.
Below, the State conceded a lack of reasonable suspicion to confront Appellee.
The only legal argument it advanced was that the encounter between police and Appellee
was consensual, and this is the only issue we address here. A trial court’s ruling on a
motion to suppress comes to the appellate court clothed with a presumption of
correctness, and the appellate court must interpret the evidence and reasonable
inferences therefrom in a manner most favorable to sustaining the ruling. State v.
Watson, 187 So. 3d 349, 351 (Fla. 5th DCA 2016) (citing Pritchard v. State, 987 So. 2d
204, 205 (Fla. 5th DCA 2008)). While the trial court’s factual findings are reviewed for
substantial, competent evidence, its application of the law to the facts is reviewed de
novo. State v. Thomas, 109 So. 3d 814, 817 (Fla. 5th DCA 2013) (citing McMaster v.
State, 780 So. 2d 1026, 1028 (Fla. 5th DCA 2001)).
Appellee’s belief that he was not free to leave is not dispositive of our analysis
because we use the objective standard of what a reasonable person would have believed
under the totality of the circumstances. See Caldwell v. State, 41 So. 3d 188, 196-97
(Fla. 2010) (seizure analysis does not depend on what particular suspect believed, but
on whether officer’s words or actions “would have conveyed to a reasonable, innocent
person that he was not free to leave” (citing Florida v. Bostick, 501 U.S. 429, 437-38
(1991))). “[T]he crucial test is whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would ‘have communicated to a
3
reasonable person that he was not at liberty to ignore the police presence and go about
his business.’” Bostick, 501 U.S. at 437 (quoting Michigan v. Chestnut, 486 U.S. 567,
569 (1988)). In reaching this conclusion, the courts look at many factors, none of which
is individually dispositive. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).
Here, a number of factors cause us to conclude that the encounter was not
objectively consensual. First, Appellee was initially confronted at his home by two
uniformed police officers. See United States v. Hernandez, 847 F.3d 1257, 1263 (10th
Cir. 2017) (confrontation in non-public place or presence of more than one police officer,
wherever confrontation occurs, militate against finding consensual encounter). Second,
the words used by the officers were accusatory in nature, rather than general questions,
suggesting that Appellee was not free to leave. See United States v. Ward, 961 F.2d
1526, 1532 (10th Cir. 1992) (officers asking accusatory questions rather than general
inquiries suggests that person is not free to leave), overruled on other grounds by United
States v. Little, 18 F.3d 1499, 1504 (10th Cir. 1994). Third, the officers did not tell
Appellee that he was free to leave. Id. at 1533 (failure of police to advise person he is free
to leave is factor militating against consensual encounter). Finally, and the factor that we
deem most significant here, not only did police not tell Appellee that he was free to go
about his business, they manifested quite the contrary through their conduct. Despite a
clear manifestation by Appellee that he had no interest in talking to police, they continued
to attempt to make contact with him by knocking on his door after he shut it, following him
in a marked police car through several turns, and approaching him on foot in the drive-
thru. See United States v. Wilson, 953 F. 2d 116, 122 (4th Cir. 1991) (police “persistence”
in attempting to question defendant after clear manifestation of intent to terminate
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encounter conveys to reasonable person that he is not free to leave); see also United
States v. Jerez, 108 F.3d 684, 692 (7th Cir. 1997) (persistent knocking by police on motel
door and window “in the face of the refusal to admit, transformed . . . [attempted]
consensual encounter into an investigatory stop”).
The factor on which the State and our dissenting colleague rely—that police did
not themselves restrict Appellee’s movement—is only one factor and is by no means
more dispositive than any other factor. See Rios v. State, 975 So. 2d 488, 490 (Fla. 2d
DCA 2007) (restraining movement is one indication of investigatory stop). The trial judge
afforded little if any weight to this factor, concluding that Appellee could not back up
without risking injury to the officers caused by the side-mounted mirrors. The dissent
challenges the record basis for this conclusion, which was addressed only in argument of
counsel. We think this was a reasonable inference from the record or, at a minimum, a
proper subject for judicial notice of generally known facts.
Even if this particular finding was erroneous, we nevertheless agree with the trial
judge’s conclusion that little weight should be given to this factor. Appellee’s easiest and
safest route of departure was impeded by the car in front of him, and he was blocked by
the second officer’s approach from behind the vehicle, preventing him from avoiding the
encounter before it began. Once the encounter began, to expect a reasonable driver to
terminate an encounter by attempting to back a vehicle out of a drive-thru while two
officers stand straddled on both sides, running the risk of injury to the officers, is an
inherently undue burden. Furthermore, there was little reason for Appellee to believe that
another attempt to terminate the contact with these two persistent officers would be any
more successful than the first. They apparently were not inclined to take “no” for an
5
answer, for obvious reasons. Accordingly, even if this one factor weighs in favor of the
State’s position, we conclude that it is outweighed by the other factors we have
addressed.
AFFIRMED.
ORFINGER, J., concurs.
BERGER, J., dissents with opinion.
6
BERGER, J., dissenting. Case No. 5D16-0647
This case involves the suppression of a firearm, found in plain view, during a police
encounter in the drive-thru lane at a fast-food restaurant. The trial court suppressed the
firearm after concluding the officers had unlawfully detained Appellee. In my view, this
conclusion is not supported by the evidence. Accordingly, I dissent.
There are three types of police/citizen encounters: (1) consensual encounters; (2)
investigatory stops; and (3) arrests. State v. Bullock, 164 So. 3d 701, 704 (Fla. 5th DCA
2015) (citing Popple v. State, 626 So. 2d 185, 186 (Fla. 1993)). In a consensual
encounter, a citizen may either voluntarily comply with a police officer’s requests or
choose to ignore them. Because the citizen is free to leave, consensual encounters
involve only minimal police contact and do not intrude on any constitutionally protected
interest under the Fourth Amendment. Blake v. State, 939 So. 2d 192,194 (Fla. 5th DCA
2006) (quoting Popple, 626 So. 2d at 186); State v. Simons, 549 So. 2d 785, 786 (Fla. 2d
DCA 1989); see also State v. Meachum, 196 So. 3d 496, 498 (Fla. 1st DCA 2016)
("Consensual encounters do not require any suspicion of criminal activity, and 'police
officers do not violate the prohibition on unreasonable searches and seizures simply by
approaching individuals on the street and asking them to answer a few questions.'"
(quoting Caldwell v. State, 41 So. 3d 188, 196 (Fla. 2010))); Brown v. State, 577 So. 2d
708, 709 (Fla. 2d DCA 1991) (noting that an officer needs no founded suspicion to
approach a parked vehicle and talk to its occupants). During an investigatory stop, "a
police officer may reasonably detain a citizen temporarily if the officer has a reasonable
suspicion that a person has committed, is committing, or is about to commit a crime."
Blake, 939 So. 2d at 194-95 (quoting Popple, 626 So. 2d at 186). "In order not to violate
a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded,
7
articulable suspicion of criminal activity." Id. Arrests require the police to have probable
cause to believe that a crime has been committed or is being committed. Simons, 549
So. 2d at 786.
As the majority outlines, the encounter in this case occurred sometime after
Appellee slammed his apartment door in the officers’ faces after they knocked on it while
responding to a noise complaint. 1 The following relevant facts, which occurred after the
initial encounter, were summarized in the trial court’s order:
The officers then returned to their vehicle, and upon seeing
Defendant and a female leaving the apartment in a car they
followed the Defendant's vehicle to a fast-food restaurant
where the Defendant entered into the drive-thru lane. The
officers parked their marked patrol vehicle in a parking space
at least sixty feet away and then walked over to the
Defendant's car while it was still in the drive thru lane behind
a car. Officer Rogers walked up to the driver's side of the
vehicle "to ask the Defendant why he slammed the door in his
face," while the other officer walked behind the vehicle and
stood on the passenger side. The Defendant's car windows
were down and at no time did the officers command the
occupants to exit the vehicle. While standing at the
passenger's side of the vehicle, Officer Fink, noticed the
Defendant's feet "shuffling", and then noticed a firearm near
his feet. Officer Fink informed Officer Rogers about the
firearm and a bag of suspected cannabis, at which time the
Defendant was arrested for carrying a concealed firearm.
On this evidence, the trial court determined the officers had illegally stopped
Appellee and blocked his ability to terminate the encounter. See Simons, 549 So. 2d at
787 (noting that "a significant identifying characteristic of a police encounter is that the
officer cannot hinder or restrict the person’s freedom to leave . . . ." (citing Lightbourne v.
1 The officers testified that when Appellee opened the door, they smelled the odor
of burnt cannabis coming from the apartment.
8
State, 438 So. 2d 380 (Fla. 1983), cert. denied, 465 US 1051 (1984))). The trial court
reasoned:
Upon leaving [the apartment], ‘the officers were required to
have reasonable articulable suspicion that criminal activity
was afoot in order to conduct a legal stop of the Defendant's
vehicle. In order to determine whether the officers' actions
constituted more than a consensual encounter, an
appropriate inquiry is whether a reasonable person standing
in the Defendant's shoes would feel free to terminate the
encounter. Here, testimony by the Defendant and officers
provided that Defendant pulled into the drive-thru lane behind
another car, that one officer walked behind his vehicle and
then each officer stood on each side of the car. The Defendant
could not pull forward because of the car in front of him, and
could not back up because his side mirrors would have hit the
officers.
Considering all the circumstances, I cannot conclude that the conduct of these two
officers would lead Appellee to reasonably believe he was not free to terminate the
encounter. 2 See State v. Kasparian, 937 So. 2d 1273, 1275 (Fla. 4th DCA 2006) ("To
determine whether there has been a consensual encounter, a court must consider all of
the circumstances surrounding the encounter to determine whether the conduct of police
officers would have communicated to a reasonable person that the person was not free
to decline the officers’ request or otherwise terminate the encounter." (citing State v.
Livingston, 681 So. 2d 762, 764 (Fla. 2d DCA 1996))). The encounter at the apartment
was relatively uneventful. Although, by happenstance, the officers noticed Appellee
leave 3 and decided to follow him, nothing in the record suggests Appellee knew he was
2Appellee certainly understood he could terminate the initial encounter when he
slammed the door on the officers. In a similar vein, he simply could have rolled up his car
window to signal to the officers that he did not wish to talk.
3It is reasonable to conclude Appellee waited until he thought the officers were
gone before deciding to leave to get food.
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being followed. 4 Appellee pulled into the drive-thru lane, behind another car, with his
windows down. No car was behind him. The officers parked in a space sixty feet away
and approached Appellee’s car on foot from the side. The officers did not threaten
Appellee in any way, order him out of the car, block him in, or otherwise try to intimidate
him. One officer simply asked why Appellee slammed the door in his face.
The trial court’s finding that Appellee would have hit the officers with his mirrors if
he had attempted to leave is speculative, at best, and is simply not supported by the
evidence. 5 See Meachum, 196 So. 3d at 497 (finding no evidence officers blocked
defendant’s egress from parking lot where one officer approached the driver’s side of the
vehicle and the other went to the rear to obtain tag information). Without more, no
competent, substantial evidence exists in the record to suggest Appellee's freedom to
back up and leave, or otherwise terminate the encounter, was hindered or restricted by
the police or anything else. Therefore, I would reverse the trial court’s order granting
Appellee's motion to suppress.
4 Despite the majority’s attempt to paint a different picture, there was no evidence
presented at the hearing to suggest the officers were following directly behind Appellee
or that the Appellee saw them. It was well after midnight and the patrol car’s lights and
siren were not activated.
5 While the majority discounts this finding, it appears to be the basis for the trial
court’s ruling.
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