FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Alicia Latimore,
Jo Bondi, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
S. Purdy, Public Defender, and Nicole J. Martingano,
Assistant Public Defender, Daytona Beach, for Appellee.
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.
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]."
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, 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.
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)).
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 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).
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 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
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.
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 ...