Time and time again, Florida courts remind law enforcement that their interactions with citizens must be ‘constitutional’ (we’ll get to what that means later). Even the most common sorts of police activity can violate our constitutional right to be free from unreasonable government intrusions. Yes, most folks concentrate on ‘search’ rules, but police conduct that amounts to a ‘seizure’ is just as unconstitutional as police conduct that amounts to a ‘search’. Searches get all of the attention usually, so we’re going to focus on a citizen’s right to be free from an illegal seizure.
Here’s how it works. You’re a hard working citizen. You have things to do. You don’t have time to be stopped by the police. You don’t have time to be questioned by the police. But, the government does have a job to do, and in some instances your busy day will simply have to be placed on hold so that some government official can get the answers they need. But, to interrupt your day (to ‘seize’ you), the government has strict guidelines, and if the guidelines are not followed–any illegal activity which is discovered as a result will be thrown out of court. Case dismissed. So, you want examples, right?
Here’s a real life example. In Smith v. State, 87 So.3d 84 (Fla. 4th DCA 2012), Smith was convicted of possession of cocaine and possession of cannabis. It went down like this: Smith was chilling in his car, legally parked on a residential street. Nothing wrong with that. Eventually, and unfortunately, a police officer pulled up nearby. The officer was curious about the vehicle, as it was 2:30am (gee, who parks near their home at 2:30am? Everybody I know…). All lights in the vehicle were off. But, the deputy saw a person inside the vehicle, the driver seat, so the officer pulled in front of the SUV and activated his overhead emergency lights. He did this, supposedly, to avoid being hit by traffic. Anyway, to make matters even more incriminating, the officer shined his giant spotlight inside the car. The officer then approached the car to investigate why the person was sitting in the car.
Once the deputy approached the vehicle, he noticed the odor of cannabis emanating from the vehicle, like some sort of ’90’s Snoop Dogg video. The deputy arrested Smith for possession of marijuana (which he spotted in the ashtray) and searched the car. The car search uncovered a small bag of weed, and a bag of cocaine. The trial court denied Smith’s motion to suppress, reasoning that Smith could have simply left if he felt like it (Really?). The trial court also bought the officer’s story that the emergency lights were on “so that oncoming traffic would be able to see” him. id. at 86. Was this court in touch with reality? Would anybody you know drive off while the super bright shiny cop light was lighting up the interior of the car? Yet, the trial court found that a reasonable person would have felt free to just drive off under these conditions?
First of all, a legal determination had to be made as to whether or not Smith had been ‘seized’. After all, if a police officer is simply routing traffic due to a malfunctioning traffic light, his order to ‘stop’ may not be considered an illegal seizure. But, if the officer is conducting a DUI road block and gives the same ‘stop’ order, he may have violated the constitution if the stop order was not pursuant to the strict rules governing DUI road blocks. Sometimes, a cop simply comes up to a citizen to ask what time it is, and this is not considered a ‘seizure’, of course. So, back to this issue of what constitutes a ‘seizure’. The test is simple: would a ‘reasonable person would feel free to disregard the police and go about his business’? State v. R.H., 900 So. 2d 689, 692 (Fla. 4th DCA 2005) (internal quotations omitted). If you do not feel free to disregard the police–you’ve been seized.
Thankfully, the appeals court overturned Smith’s conviction for possession of cocaine and possession of marijuana. Smith argued on appeal that, in legal terminology, “the officer illegally seized him without any suspicion of criminal activity”. Id. The state responded as they always do, “arguing that the officer’s initial approach of [Smith] was a consensual encounter and that the officer immediately had a basis to detain [Smith] when the officer smelled marijuana and saw a marijuana cigarette in plain view” (in the ashtray). Id. So the appeals court dove into an analysis of a consensual encounter, versus a seizure. The appeals court questioned the dangers of the prosecutors claim that a citizen would have felt free to leave with these emergency lights flashing. We all know what happens when you drive off while the emergency lights are flashing–a fleeing and attempting to elude charge. And we all know what follows a fleeing and attempting to elude charge–a good old fashion beat down (disguised as a battery on a law enforcement officer, of course!).
The court in Smith cites to another case for the common sense proposition that “It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officer under such circumstances”. Id., citing the Florida Supreme Court in G.M. v. State, 19 So.3d 973 (Fla.2009).
So there you have it. Not only was the trial judge wrong, the trial judge’s conclusion that Smith was free to leave “strains the bounds of reason”. Its one thing to overturn a judge’s decision. I get that, we all make mistakes at work. But, to say the judge’s decision “strains the bounds of reason”–that’s on another level. I’m just saying….