MARSHAL: PLEASE RISE. HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THE GREATSTATE OF FLORIDA IS NOW IN SESSION.ALL W HO HAVE CAUSE TO P LEA , DRAW NEAR, G IV E ATTENTION AND YOU SHALL BE HEARD. GOD SAVE T HESE UNITED STATES, THE GREAT STATE OF FLORIDA AND T HIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED.
CHIEF JUSTICE: G OOD MORNING , LADIES AND GENT LEMEN , AND WELCOME TO THE FLORIDA SUPREME COURT . BEFORE STARTING, I WOULD LIKE TO WELCOME THE TEACHERS AND JUDGES OF THE JUSTICE TEACHING INSTITUTE, AND, ALSO, WE HAVE WITH US TO DAY ANOTHER SET OF GUESTS, THE UNIVERSITY OFSOUTH FLORIDA STUDENTS ON CONSTITUTIONAL LAW AND POLITICS , ESCORTED BY PROFESSOR McLAUCHLIN . THANK YOU FOR BEING H ERE , AND WITH TH AT, WE WILL CALL OUR ONE AND ONLY CASE ON THE DOCKET THIS MORNING , GOLPHIN VERSUS STATE OF FLORIDA.ARE THE PARTIES READY ?
YES , YOUR HONOR.
CHIEF JUSTICE: YOU MAY PROCEED.
THANK YOU. G OOD MORNING . MAY IT PLEASE THE COURT. MR . HE IDT. MY NAME I S N OEL PELELLA , AND IREPRESENT THE PETITIONER , LORENZO GOLPHIN , WHO PLED TO DRUG CH ARGES AFTER A WARRANT AND SE ARCH OF HIS PE RSON ANDHE WAS DENIED DUE PROCESS. THE FI FTH DISTRICT COURT AFFIRMED
IN THE HE ARING BELOW ON THE MOTION TO SUPPRESS, WHO TESTIFIED?
T WO OF THE POLICE OFFICERS WHO WERE THERE.
OKAY. AND
MR . GOLPHIN TESTIFIED.
AND THE TESTIMONY BY THE OFFICERS , WAS THAT THIS WAS WHERE , THEY WERE GOING BY ANDTHEN STOPPED THEIR VEHICLE, GOT OU T, AND IT WAS A R ATHER , I FOR GET THE EXACT WORDS , BUT NONCHALANTLY OR RELA XED, IN A RELAXED WA Y, WALKED UP TO MR . GOLPHIN , WHO WAS THE ONLY ONE THAT REMA INED , OF THESE P E OPLE THAT WERE STA NDING THERE OUTSIDE, ON THE SIDEWALK , CORRECT?
ACTUALLY , AT L EAST ONE P ERSON AND MAYBE MORE REMAND .
RIGHT. AND THEN THEY HAD A CONVERSATION WITH HIM .
CONVERSATION WITH HIM AND ANOTHER FELLOW WHO WAS STANDING THERE.
AT ANY RATE, AFTER HEARING THIS TESTIMONY , AS TO HOW THIS ENCOUNTER TOOK PL ACE , THE TRIAL COURT CA ME TO THE CONCLUSION THAT THIS WAS A CONSENTUAL ENCOUNTER . CORRECT?
THAT'S CORRECT.
AND DI D THAT , B ASED UPON THE TESTIMONY THAT WAS PRESENTED .
THAT'S CORR ECT.
OKA Y . AND SO WH ERE WE ARE , AS A REVIEWING COURT, THEN, IS THAT WE ARE B OUND BY THE DETERMINATION S MADE BY THE TRIAL JU DGE , AS TO THE CREDIBILITY OF TH OSE WITNESSES THAT LED TO THE T RIAL COURT'S CONCLUSION.
THAT'S CORRECT.
LET ME ASK YOU SPECIFICALLY , WHEN THE OFFICER TESTIFIED , SHE ASKED FOR GOLPHIN'S IDENTIFICATION, WAS IT , I WANT YOUR DRIVERS LICENSE O R IDENTIFY YOURSELF AND LET ME S EE YOUR IDENTIFICATION. W AS THERE ANY TESTIMONY SPECIFICALLY ON THAT?
IT IS NOT ENTIRELY CLEAR , BUT MY IMPRESSION , AND FROM THE RECORD IS THAT THEY ASKED THREE QUESTI ONS. THEY SAID WH AT ARE YOU DOINGHERE, WHAT IS UP ? DO YOU LIVE IN THE AREA, ANDDO YOU HAVE ANY IDENTIFICATION.
ALL RI GHT. SO AT THAT POINT , HE SA YS YESAND PROD UCES HIS DR IVERS L ICENSE. IS THAT WHAT HAPPENED?
I DON'T K NOW I F IT WAS A DRIVERS LICENSE, BUT , RIGHT , APPARENTLY
THAT IS SORT OF IMPORTANTWHAT IT IS FOR THIS CASE.
MY RECOLLECTION FR OM THERECORD IS THAT IT WAS A FLORIDA I.D. CARD NOT ADRIVERS LICENSE , BUT I COULD BE WRONG ABOUT THAT.
THAT IS WHAT THE OPINION SAYS.
ALL RIGHT. DO YOU SEE THAT, NOW , AS I AM UNDERSTANDING THIS, BECA USE WE ARE NOT HERE TO RE VIEW THE SPECIFIC F ACTS OF WHETHER THIS WAS A CONSENTUAL ENCOUNTER OR N OT. THE QUESTION IS , ONCE YOU A SKED FOR IDENTIFICATION , WHETHER THAT IS GOING TO T URN THE , WHAT WOULD BE A CONSENTUAL ENCOUNTER INTO A SEIZURE , SO DO YOU NOT SEE IT IMPORTANT AS TO WHAT TYPE OF IDENTIFICATION IS BEING ASKED F OR, IN LOOKING AT WHAT , I AM ASSUMING YOU ARE PROPOSING TO BE A BRIGHT-LINE RULE?
NO. BECAUSE YOU , ONCE HE SURRENDER S IT, WHETHER IT IS A DRIVERS LICENSE OR SOME OTHER FORM OF ID , HE SURRENDERED IT. NOW HE HAS BEEN SE IZED , AND THE QUESTION IS WH Y WAS HE SEIZED. AND I DON'T THINK THAT WE CAN MAKE AN ASSUMPTION FROM THEFACT THAT HE TURNED IT O VER, WITHOUT ANY PROTEST , THAT THAT MAKES IT CONSENTUAL.
WELL , AT THE P O INT , THEN , IT IS TURNED OVER , THE OFFICERLOOKS AT IT, AND THEN HOW IS THE , WHAT NE XT HAP PENS , UN TIL THE WARRANT CHECK IS DON E? IN OTHER WORDS, B A SED ON THE FACTS MOST FAVORABLE TO THE STATE.
ON THE FA CTS MOST FAVORABLE TO THE STATE , I BELIEVE WHAT HAPPENED AFTER THAT IS AT SOME POINT INITIALLY , NOT MR . GOLPHIN BUT THE FE LLOW STANDING NEXT TO HIM , COMPLAINED THAT IT WAS PO LICE HARASSMENT.
AGAIN, THAT IS NOT WHAT THE POLICE
AND THE QUESTIONING CONTINUED.WHILE THEY ARE HOLDING MR . GOLPHIN 'S LICENSE, THEY CONTINUE TO ASK HIM A BOUT HIS CRIMINAL HISTORY , DO ES HE HAVE ANY OUTSTAND IN G WARRANTS .
TAKE YOUR PO SITION , TH OUGH , IS I T YOUR POSITION THAT , ONCE HE HANDS OV ER THE IDENTIFICATION CARD AND THEPOLICE OFFICER TAKES POSSESSION OF IT , THAT AT THAT POINT IT TURNS FROM A CONSENTUAL ENCO UNTER TO A DETENTION?
YES , AND I BAS ED THAT ON BROWN VERSUS TE XAS.
THAT I S THE BRIGHT-LINE R ULE YOU ARE TAKING OR ASKING FOR , INS TEAD OF TOTALITY OF THE CIRCUMSTANCES.
I AM NOT SAYING THAT EVERY T IME SOMEBODY TURNS OVER THEIR LICENSE OR IDENTIFICATION , THAT IT CONSTITUTES A DETENTION , BUT IN THIS CASE IT CERTAINLY WAS.
SO ARE YOU ASKING FOR TOTALITY OF THE CIRCUMSTANCES O R BRIGHT LI NE?
ABSOLU TELY , TOT ALITY OF THE CIRCUMSTANCES.
SO WHAT DOES THE OFFICERGET TO DO WITH THE ID? THE PERSON VOLUNTARILY GI VES THE OFFICER THE ID. ARE YOU, THEN , SAYI NG
I AM NOT SUR E WE CAN SAY IT IS VOLUNT ARY. L ET'S ASSUM E , O KAY.
LET'S ASSUME THAT HE VOLUNTARILY GIVES THE OFFICER THE ID.WHAT DOES THE OFFICER DO , SIMPLY LO OK AT IT TO SEE IF THE PICTURES MATCH OR WHAT?
THAT'S RIGHT , BECAUSE WHAT ARE THEY THER E FOR? I DON'T K NOW WHY H E ASKED FOR IDENTIFICATION IN THE FIRSTPLACE. THE OFFICERS ALL SAID AND THETRIAL COURT MADE A FAC TUAL FINDING, THAT THERE WAS NO REASON TO BELIEVE THAT ANY OF THESE MEN WERE INVOLVED IN CRIMINAL ACTIVITY.
DON'T WE HAVE CASE LAW OUT THERE THAT SAYS JUST ASKING A CITIZEN FOR ID IS NOT A SEIZURE?
I DON'T BELIEVE SO. I THINK WHAT THE CASES SAY ISTHAT THE POLICE DON'T VIOLATETHE FO URTH AMEN DMENT BY APPROACHING A CITIZEN ON THESTREET AND ASKING THEM IF THEY ARE WI LLING TO ANSWER QUESTIONS, AND THEN PROCEEDING FROM THERE. NOBODY, THE RE IS NO EVIDENCE THAT THAT IS WHAT HAPPENED HERE. THEY WALKED UP TO HIM AND THEY SAY, WHAT ARE YOU DOING HERE. DO YOU LIVE HERE. AND DO YOU HAVE ANY ID.
SO IT IS YOUR POSITION THAT , BEYOND THAT , THE POLICE CAN DO NOTHING.
WELL , ONCE , WHAT IS THEIR PURPOSE FOR DOING THAT IN THE FIRST PLACE? SO ONCE HE TE NDERS HIS ID , AND THEY SAY, OKAY , IT MATCHES HISPICTURE , NOW , WHAT E LSE DO WE HAVE TO DETAIN HIM FOR? JUST LIKE MR . BROWN IN BR OWN V ERSUS TEXAS. HE REF USED TO GIVE HIS ID , BUT IT IS YOUR PATH HERE .
IS IT YOUR POSITION THAT , UNDER THE UN ITED STATES SUPREME COURT CASES.
YES.
ON SE ARCH AND SEIZURE , THAT YOU CANNOT ASK A CITIZEN FORTHEIR IDENTIFICATION IN A CONSENTUAL ENCOUNTE R?
NO. I AM NOT SAYING , A GAIN , I AM NOT ADVOCATING A BRIGHT-LINE RULE THAT SAYS , EVERY TIME YOU TURN OVER YOUR IDENTI FICATION , THAT YOU HAVE BEEN SEIZED. BUT UNDER THESE CIRCUMSTANCES, HE HA D NO RE ASON TO BELIEVETHAT HE WAS FREE TO GO.
BUT UNDER THESE CIRCUMSTANCES , A C CORDING TO YOUR BRIEF, THAT APPROXIMATELY TWO M INUTES AFTER HIS ID WAS SURRENDER ED, AFTER THE OFFICER RAN HIS N AME TO CHECK FOR OUTSTANDING WARR ANTS, THE PETITIONER STATED H E MIGHT BE SUBJECT OF A COU NTING WARRANT.
HE MIGHT. HE WASN'T SURE. THAT'S CORRECT.
BUT THIS WAS ALL SOMETHING THAT HE VOLUNTEERED.
NO. I DON'T BELIEVE SO , YOUR HONOR , BECAUSE WHEN THE POLICE STOPPED HIM AND SAY, WHAT ARE YOU DOING HERE , DO YOU HAVE SOME IDENTIFICATION , D O YOU LIVE IN THE AREA , AND HE ANSWERS ALL THOSE QUESTIONS , AND THERE IS NO EVIDENCE THAT HE DID N'T.NOW , WHAT REASON DO THEY HAVE TO HOLD HIM ? HE HAS DONE WHAT T HEY ASKED.
WOULD YOU FOLLOW-UP ON THAT , THEN , A MI NUTE A GO YOU SAID THAT, ONCE THEY CHECKED HIS IDENTIFICATION AND ESTABLISHED IT WAS HIM OR W HATEVER , THATAFTER THAT , AND HOLDING THE DRIVERS LICENSE OR THE IDENTIFICATION, WHAT EVER IT WAS , THAT IT BECAME AN ILLEGAL DETENTION?
ABSOLUTELY .
MY QUESTION TO YOU , REALLY , IS, WO ULD YOU FOLLOW-UP ON THAT. WHY DID IT BECOME AN IL LEGAL DETENTION AFTER THAT ?
BECAUSE ONCE THEY HAVE ESTABLISHED HIS IDENTITY , THEY HAVE NO REASON TO DE TAIN HIMANY FURTHER. THEY EITHER HAVE TO GIVE HIM HIS LICENSE BACK OR TELL HIM OR ASK HIM , SIR , WOULD YOU MIND SUBMITTING TO SOME FURTHER QUESTIONING, BECAUSEAS I SAID, WE STA RT FROM THE POSITION WHERE THEY APPROACHED HIM FOR NO REASON WHAT SOEVER .
GO TO BROWN VE RSUS TEXASAND TELL US WHAT THE CIRCUMSTANCES WERE IN THAT CASE AND WHAT THE HOLDING OF THE U.S. SUP REME COURT WAS IN THAT CASE.
THEY WENT UP TO MR . BROWN AND AN OTHER FELLOW IN A N ALLY , AND THE I N AN AL I, AND THE SECOND FELLOW WALKED A WAY JUST LIKE IN OUR CASE.MR. BROWN REMAINED. THEY SAID WHO ARE YOU OR , YOU KNOW, IDENTIFY YOURSELF AND HE REFUSED, AND THEY ARRESTED HIM FOR REFUSING TO IDENTIFY HIMSELF . JUST LIKE IN OUR CASE , THE STATE'S POSITION NOW IS THE FACT THAT THIS OTHER FELLOW WALKED AWAY , INDICATES THAT MR . GOLPHIN , IN TEND E RRING HIS LICENSE , THAT IT WAS VOLU NTARY , BECAUSE HE DIDN'T PROTEST .
COULD YOU MAKE SOME ARGUMENT ALONG THOSE LINESTHAT THERE WAS A SECOND PERSON WHO ATTEMPTED TO WALK AWAY AND WAS NOT ALL OWED TO WALK AWAY ?
NOT IN OUR CASE. IN BROWN, THE SEC OND FELLOW WALKED AWAY. NOBODY STOPPED HIM, AND THE SAME THING HAPPENED HERE. SOMEBODY WALKED AWAY . ONE OR TWO FELLOWS WALKED AWAY AND THEY DIDN'T STOP HIM . AND IN OUR CASE , SOME , MR . GOLPHIN PROT ESTED THAT IT WAS POLICE HARASMENT.
IS IT YOUR CONTENTION THAT IT WAS ILL EGAL BECAUSE THE POLICE DETAINED HIM FOR OTHER PURPOSES THAN TO DETERMINE
BROWN VERSUS
IS THAT WHAT YOUR POSITION IS?
BROWN VERS US TEXAS SAYS YOU CANNOT DETAIN SOME BODY, STRICTLY FOR THE PURPOSES OF DETERMINING THEIR IDENTITY. ' I AM T RYING TO DETE RMINE THE ISSUE HERE WITH REFERENCE TO CONSENT, BECAUSE YOU SE EM TO BE CON CEDING THAT THERE MAY HAVE BEEN A CONSENT TO TALK TOTHE POLICE TO BEGIN WITH , AND EVEN
NO , I AM NOT . I AM S O RRY , IF I G AVE MA KE THAT IMPRESSION.
LET'S ASSUME THAT IF I G AVE THAT IMPRESSION.
LET'S ASSUME THAT THE EVIDENCE SUPPORTS THE DETERMINATION THAT THE IN ITIAL DISCUSSION WITH POLICE AND PRODUCING IDENTIFI CATION , WAS CONSENTUAL.
ALL RI GHT.
HOW DOES THAT AFFECT YOUR POSITION? DO YOU NEED THAT AS A BASIS TO MAKE YOUR AR GUMENT THAT THE FURTHER DETENTION WAS ILLEGAL , OR DO YOU ST ILL HAVE GROUNDS
NO. WHETHER OR NOT , I THINK THE SITUATION IS MORE LIKE FLORIDA VERSUS ROYER , WHER E MR . RO YER , DIDN'T PROTEST A T ALL, WHEN THEY ASKED HIM FOR HIS IDENTIFICATION AND HIS TI CKET AND THEY HELD HIM. HE DIDN'T PROTEST AT ALL. HE FOLLOWED THEM TO A ROOM , WHERE THE INTERROGATION TOOK P LACE AND THEY EVENTUALLY OBTAINED CONSENT TO SE ARCH HIS LUGGAGE, AND THAT WAS FOUND. WHETHER OR NOT IT STARTED OUT AS A CONSENTUAL ENCOUNTER , IT WAS AN UNLAWFUL DETENTION, BECAUSE THEY HAD NO REASON TO HOLD HIM , ONCE HE HAD IDENTIFIED HIMSELF. AND AT THAT POINT , BECO MES THEIR OBLIGATION TO IN FORM HIM , YOU KNOW , O KA Y , YOU KNOW , THIS SEEMS TO CHECK OUT. WOULD YOU MIND ANSWERING SOME M ORE QUESTIONS.
JUSTICE LE WIS HA S A QUESTION.
HOW WOULD YOU DEAL WITH O R DISCUSS THE DELAROSA DECISION FROM THE LEFT CIR CUIT THAT APPLIES THE FLORIDA SU PREME COURT PREC EDENT I N THIS AREA THAT WAS SOME WHAT AFTER THE THOMPSON CASE , AND I T SEEMED TO BE MAY BE A LI TTLE CONFLICT , BUT IT IS , ALSO , A N ENCOUN TER. IT IS BEHIND THE GATE. COULD YOU TALK AB OUT THOSE. YOU SEEM TO BE ARG UING , AL MOST , JUDGE CLER K'S DI SSENT.
I HAVE TO CONF ESS , I AM EMBARRASSED BUT I AM NOTFAMILIAR WITH THE FACTS IN THOSE CASES.I AM SORRY .
LET M E GO BACK TO, THEN , IF YOU ARE NOT FAMI LIAR WITH THE FACTS OF T HOSE CASES, I JUST WANT , THE ISSUE THAT IS IMPORTANT TO ME IS TO UNDERSTAND THAT YOU HAVE AGREED THAT HE VOLUNTARILY GAVE OVER HIS IDENTIFICATION.
NO. I AM SORR Y IF I GAVE THAT IMPRESSION.
WE ARE SAYING THAT WE ARE GOING TO TAKE AS GIVEN, WHAT THE JU DGE HAS SAID , THAT IT WAS VOLUNTARILY GIVEN OVER.
O KAY.
AND THAT THAT IS APPROPRIATE FOR THE POLICE TOBE ABLE TO SAY LET ME SEE YOUR IDENTIFICATION, TO SOMEBODY ON THE STREET. THEY CAN WALK AWAY BUT THAT THAT IS AN APPROPRIATE QUESTION TO ASK. IS THAT COR RECT?
THAT IS AN APPROPRIATE QUESTION TO ASK.
AN APPROPRIATE Q UESTION FOR POLICE TO BE ABLE TO GO OVER TO ANY CITIZEN , BECAUSE THISWOULD BE ANY CITI ZEN, AND SAY , EXCUSE ME , I WOULD LIKE TO TALK TO YOU AND I WOULD LIKE TO JUST SEE YOUR IDENTIFICATION .
THE QU ESTION , AS I READ IT FROM , AND T O ANS WER JUSTICE L EWIS, YOUR QUESTION , I FAMILIARIZED MYSELF WITH THE U NITED STATES SUPREME COURTCASES , BECAUSE THOSE ARE THE ONES THAT I FELT ARE CONTROLLING HERE, BECAUSE OF THE DECISION IN FLOR IDA THAT SAYS THE UN ITED STATES SUPREME COURT DECI SIONS ARE CONTROLLING AND FOURTH AMENDMENT QUESTIONS, BUT ITHINK THE QUES TION THAT IS PROPER IN THOSE CIRCUMSTANCES , ABSENT ANY REASON ABLE BELIEF , THAT THERE IS CRIMINAL ACTIVITY AFTER AN OTHER , I S WOULD ACTIVITY AF OOT , IS WOULD YOU MIND ANSWERING SOME QUESTIONS AND PROCEEDING FROM THERE.E ITHER NO , OR , WELL , THEN
WOULD YOU MIND , I WOULD LIKE TO , WHAT IS YOUR NAME , AND MAY I SEE SOME IDENTIFICATION.
AFTER THEY HAVE ANSWERED THE QUESTION ABOUT WOULD YOU MIND ANSWERING SOME QUESTI ONS.
SO WHAT MADE , WHAT DO YOU CONTEND MADE THE GIVING OF THE ID IN THIS CASE , INVOLUNTARY ? YOU SAID IT WAS NOT VOLUNTARY.
RIGHT.
YOU WERE ASKED A QUESTION. YOU SAID THE GIVING OF THE I D WAS NOT VOLUNTARY. WHAT MADE IT INVOLUNTARY?
BECAUSE THEY STARTED OUT , NOT BY SAYING E XCUSE ME, S IR, WOULD YOU MIND ANSWERING A FEW QUESTIONS, BUT WHAT ARE YOU DOING HERE, AND DO YOU LIVE AROUND HERE , WH ICH IMP LIES THAT NOW IS HE THE SUSPECT IN SOME KIND OF INVESTIGATION , BUT REALLY THERE IS NO INVESTIGATION.
BUT CIRCUMSTANCES WHERE YOU HAVE THESE PEOPLE, WHAT TIME OF THE D AY, THIS WAS NIGHT , RIGHT?
ELEVEN O'CLOCK AT N IGHT.
EL EVEN O'CLOCK AT NIGHT , PEOPLE HA NGING OUT IN AN AREA KNOWN FOR DRUGS AND PROSTITUTION AND THOSE KINDSOF THI NGS, AN OFFICER CANNOT COME UP TO A CITIZEN AND SAY WHA T ARE YOU DOING HERE O R WHOARE YOU O R ANY OF THAT?
M Y UNDERSTANDING OF THE CASE LAW IS THEY F IRST HAVE TO ESTABLISH CONSENT FOR THE ENCOUNTER , THAT BEING IN AHIGH CR IME AREA IS NOT REASONABLE
WHICH CASE DO YOU SAY ESTABLISHES CONSENT TO THE ENCOUNTER. WHICH ON E ARE YOU RELYING ON?
PONCE , BROWN VERSUS TEXAS .
HOW IS IT REFLECTED? IT MUST BE A YES, I AGREE?
YES. F LORIDA VERSUS ROYER, I THINK IT IS CL EAR FROM FLORIDA V ERSUS ROYER , THAT YOU FI RST HAVE TO ESTABLISH THAT THEPERSON AG REES TO THE DETENTION .
CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL. I JUST WANT TO RE MIND YOU OF THAT. BEFOR E I CA LL FOR THE RESPONDENT, I JUST WANTED TO BRING TO EVERYONE'S AT TENTION WHAT MIGHT BE OBVIOUS, WHICH IS THAT JUSTICE CANTERO IS NOTWITH US T HIS MORNING. THAT IS BECAUSE HE HAS EXPERIENCED A DEATH IN HIS FAM ILY, AND HE HAD TO GO DOWN TO MI AMI, BUT HE WILL BE PARTICIPATING I N THE ORAL ARGUMENT, THROUGH WATCHING THE VIDEOTAPE AND WILL BE PARTICIPATING IN THE DELIBERATIONS . ALL R IGHT . YOU MAY PROCEE D.
MAY IT PLEASE THE COURT. MY NAME IS WESLEY HE IDT AND IREPRESENT THE STATE , RESPONDENT IN THIS CASE . THE FIRST PO INT THE STATE WOULD LIKE TO MAKE IS THE FACT THAT THIS CASE AROSE BELOW , A T THE TRIAL LEVEL, BASED UPON CONFLICT WITH B Y AS OUT OF THE WITH BAEZ OUT OF THE FOU RTH DISTRICT COURT OF APP EAL . THE DEFE NSE ATTORNEY ASS ERTED BAEZ AND ARG UED BAEZ AND ASSERTED CONF LICT AND DETERMINED THE TR IAL COURT'S RULING. THIS COURT RE VERSED BAEZ IN ITS NOVE MBER OPINION , SO IT IS THE STATE POSITION THAT THIS COURT HAS NO JURISDICTION AND SHOULD AFFIRM THE FI FTH DISTRICT COURT OF APPEAL .
THE BAEZ THAT CAME FROM THIS COURT HAS SOMEWHAT ALTERED THE RATIONALE OR LE GAL PRINCIPLE INVOLVED, D UE TO THE NATURE AND TOTALITY OF THE CIRCUMSTANCES, WAS IT NOT?
BAEZ WAS AN INTEREST ING OPINION IN WHICH THIS COURT REVERSED THE FOURTH , FOLLOWING THE PRIOR TO LINE RULE AND FOLLOWING WITH THE TOTALITY OF THE CIRCUMSTANCES AND , IN THAT SITUATION , F OUND THAT TOTA LITY , IT IS MY UNDERSTANDING , SUPPORTED THE F I NDING OF THE FACT THAT THERE WAS NOT A DETENTION IN THAT SI TUATION.
MAY I PROPOUND THIS INQUIRY TO YOU. IS THERE A DISPUTE IN THERECORD THAT THERE WAS A K -9 UNIT ON THE SCENE?
NOT ACCORDING TO THE STATE. IF YOU LOOK AT THE RECORD BELOW , THE SUP PRESSION HE ARING INVOLVED THREE WITNESSES. IT WAS THE TWO OFFICERS WHO INITIALLY ENGAGED THE PETITIONER, THE DEFENDANT IN THIS CASE , AND THE PETITIONER , HIMSELF , TESTIFIED, AND WHEN YOU REVIEW THE TESTIMONY OF THE HEARING , THE OFFICER'S TESTIMONY WAS QUITE A BIT DIFFERENT THAN WHAT THE PETITIONER SAID. THE OFFICER SAID THEY WERE ON ROUTINE PATROL. SAW A GR OUP O F FOUR , FIVE OR SIX INDIVIDUALS. PULLED OVER ON THE OFFICER'S SIDE OF THE RO AD. PULLED UP , PARKED , WALKED U P AND CASUALLY ENGAGED IN A CONVERSATION. IT WAS NOT JUST THREE QUESTIONS AND HE WALKED UP AND IMMEDIATELY STARTED GRILLING THEM. THE RE WAS LA UGHTER AND JOKING BACK AND FORTH. THIS HAPPENS ROUTINELY ON THESTREETS OF AMERICA EVERYDAY .
WAS THE DISPUTE AT WHAT POINT THAT THE K-9 CAM E ON THESCENE?
THE PEOPLE SAID THEY BROUGHT A DOG UP AND THEY COULDN'T L E AVE AND IT IS NOT CREDIBLE.
I UNDERSTAND THE CREDIBILITY ISSU ES AND JUSTICE WELLS CERTAINLY BROUGHT THAT HOME THIS MORNING , BUT YOU SAYTHERE IS NO DISPUTE THAT A K-9 UNIT WAS BROUGHT ON THE S CENE. THAT IS AN ESTABLISHED FACT , I WOULD ASSUME , NOT ACREDIBILITY ISSUE.
I WOULD DISAGREE WITH T HAT. THE OFFICER WHO WAS RESPONSIBLE FOR THE K-9 UNIT WAS MA LE. THE TWO OFFICERS WHO INITIALLY ENGAGED THE PETITIONER WERE FEMALE, SO THERE WAS TESTIM ONY B Y THE TWO, BOTH OFFICERS THAT , HE CAME. NOW , ADMITTEDLY
IT IS UNDISPUTED. THE OFFICERS TESTIFIED THAT A K-9 UNIT CAME TO THE SC ENE.
THEY N EVER REFERENCED. THE MALE OFFICER CAME AND FRISKED HIM , PURSUANT TO THE WARRANT. WHETHER THE K-9 WAS THERE , IS NOT CLEAR.
HE WAS ON THE SCENE. I DIDN'T MEAN IN THE CA R.
YES. THERE WAS A K-9 UNIT SOMEWHEREIN THE VICINITY.
IS THERE A DISPUTE AS TO WHEN?
YES. BOTH OFFICERS WERE ASKE D THAT QUESTION IN THE RECORD AND GAVE TESTIMONY THAT HE WAS CALLED UP AFTER THE WARRANT WAS DISCOVERED.
ONLY AFTER THE WARRANT.
THAT IS THE TESTIMONY BUTPURSUANT TO THE TESTIMONY, IT IS I N DI RECT.
AT SOME POINT , THE OFFICERS ASKED FOR IDENTIFI CATION , AND WHAT IS THE STATE 'S POSITION AS TO EXACTLY WHAT DID THE OFFICERS SAY TO THE DEFENDANT? ABOUT THE IDENTIFICATION .
THEY
SAID MAY I SEE SOME IDENTIFICATION, OR HOW WAS - -
AGAIN , THE ARGU MENT BY THE DEFENSE BELOW WAS SIMPLY HANDING THE IDENTIFICATION OVER PUR SUANT TO A SE IZURE AND STOP. THEY ASKED WHAT LANGUAGE WAS U SED AND THEY ASKED WHAT HEWAS DO ING THERE , SPECIFICALLY THE PETITIONER AND THE OFFICER ASKED WHAT HE WAS UP TO AND DID HE HAVE ANY IDENTIFICATION. HE PRO DUCED A FLORIDA IDENTIFICATION CARD.
NOW , AT THAT POINT , LET ME GO BACK TO WHAT I AM CONCERNED ABOUT , IS WHETHER A FORMER BAIT AND S WITCH WHET HER A FORM O F BAIT AND SW ITCH CARD , WHICH IS THAT IT MAY BE REASONABLE TO SAY, AND WE ARE WRITING IF WE W RITE ON THIS , SORT OF FOR WHAT YOU WOULD CONDONE AS FAR AS POLICE OFFICER CON DUCT , TO SA Y THAT, SINCE THERE WAS NO SUSPICION OF ANY CRIMINAL ACTIVITY , AND THAT IS ESTABLISHED, THAT POLICE OFFICERS COULD GO UP TO INDIVIDUALS WHER EVER THEY AREIN THIS STATE , COUNTRY , ANDJUST SAY, I WOULD LIKE TO SEE IDENTIFICATION. AND WE WOULD SAY THAT T HEY CAN WALK AWAY , BUT THEY MAY SAY , YES, I AM GOING TO PROD UCE M Y IDENTIFICATION. BUT THEY DIDN'T SAY I WOULD LIKE TO SEE YOUR IDENTIFICATION , BECAUSE I WOULD LIKE TO COND UCT A WARRANT CHECK. IN OTHER WORDS NOW WE ARE TALKING NOT ABOUT WHAT IS GOING ON. THIS IS FUNNY THAT THEY ARE HANGING HERE AT ELEVEN O'CLOCK.I D ON'T HAVE SUSPICIOUS US BEHAVIOR. BUT I AM REALLY CURIOUS ABOUT WHAT ELSE , MAYBE THAT THEY HAVE BEEN INVOLVED IN SOMETHING IN THE PA ST, SO HOW COULD , WOULDN'T IT BE A DIFFERENT SITUATION , IF THEY HAD SAID , I WOULD LIKE TO SEE YOUR IDENTIFICATION , BECAUSE I WANT TO CONDUCT A WARRANT SEARCH OR WARRANT CHECK, BUT HERE, THAT DIDN'T HAPP EN. THEY, THEN , RETAINED THE IDENTIFICATION, AND NOW THEY ARE CONDUCTING A WARRANT SEARCH, S O AT THAT POINT , WOULDN'T THIS ENCO UNTER GO FROM BEING A CONSENTUAL ENCOUNTER , TO A DETENTION ?
NO. THIS IS A CONTINUATION OF THE CONSENTUAL NATURE. THEY SIMPLY ASKED FOR IDENTIFICATION.
WELL , BUT, THEY DIDN'T SAY I WOULD LIKE TO SEE IDENTIFICATION, SO THAT I CAN RUN A WARRANT CHECK.
NO. THE RECORD DOES NOT REF LECT .
SO ARE WE SAYING POLICEOFFICERS CAN GO UP TO ANYBODY IN THIS COUNTRY AND ASK FOR IDENTIFICATION AND THEN RETAIN IT FOR A PERIOD OF T IME, FOR THEM TO CONDUCT A WARRANTCHECK?
I BELIEVE THAT IS WHAT WE ARE SAYING.
THAT IS WHAT WE WOULD BE SAYING.
THE COURT HAS ALREADY SAID THAT. THE TRIAL COURT BELOW RE LIED U PON LIGHTBOURNE , THE FI FTH DISTRICT COURT OF APPEAL REFERENCED LIGHTBOURNE, AND WHEN YOU READ LIGHTBOURNE , OFFICER McGO WAN APPROACHED THE PARK CAR , ASKED THE DEFENDANT A FEW SIMPLE QUESTIONS AS TO THE ADDRESS AND REASON FOR HISLOCATION, AND RAN A ROU TINE CHECK AND THIS COURT FOUND IT T O BE A PERRY STOP , AND NOT UNDER SUSPICION.
S O UNDER POPPELL , BECAUSE LIGHTBOURNE WAS WRITTEN BE FORE POPPELL , RETA INING IDENTIFICATION TO CONDUCT A WARRANT CHECK, DOES NOT CON VERT A CONSENTUAL ENCOUNTER INTO A N E XT LE VEL ENCOUN TER.
AGAIN, YOU LOOK AT THE TOTALITY OF THE CIRCUMSTANCES, WHICH IS WHAT THE TR IAL COURTDID , AND HE FOUND IT TO BE CONSENTUAL. SIMPLY HA NDING OVER A D RIVERS LICENSE , THERE HIS CASE AFTER CASE CITED IN THE STATE'S BRIEFS , T ALKING , REFERENCING THE FACT THAT ASKING FOR IDENTIFICATION, LOOKING FOR IDENTIFICATION, DOES NOT R ISE TO
IS IT BECAUSE THE PERSON COULD FEEL , WHEN YOU HAVE THAT IDENTIFICATION WHICH YOU NEED , THAT THEY COUL D NOW SIMPLY WALK AWAY AND BE ON THE IR WA Y?
AGAIN , THIS WAS IDENTIFICATION CARD OF A PEDESTRIAN. THIS WAS NOT A DR IVERS LICENSE. I THINK IT GOES I N TO THE TOTALITY. THIS IS NOT A SITUATION OF ASTOPPED CAR WITH A PA RKED CARAND A SITUATION WHERE YOU NEED TO DRIVE OFF.
LOOKING AT THE CIRCUMSTANCES AND THE FACT THAT IT WAS A PEDESTRIAN , WHAT IF IT WAS THE FACT THAT HE HANDED OVER HIS DRIV ERS LICENSE AND WAS A PEDESTRIAN. DOES IT MATTER THAT IT WASFLORIDA IDENTIFICATION CARD , WHICH I AM NOT EX ACTLY S U REWHAT THAT THOSE ARE.
THIS CAME OUT IN CROSS-EXAMINATION OF THEDEFENDANT THAT THE ADDRESS ON THERE WAS A 19 95 ADDR ESS. HE DID NOT LI VE THERE , SO IT WAS AN INCORRECT ADDRESS.
WHY DOES IT MAKE ANY DIFFERENCE THAT IT WAS AN IDENTIFICATION CARD OR A D RIVERS LICENSE? THEY ARE RETAINING SOMETHINGTHAT THE DEFENDANT OWNS.THEY HAVE SOMETHING THERE. WOULD YOU COME BACK AND ADDRESS , HOW DO WE DEFINE WHETHER OR NOT THERE IS A DETENTION OR NOT , AT THE TIME THAT THEY ARE QUESTIONING THE PERSON ON THE S T REET, THAT IS , HOW DO WE DETERMINE WHETHER IT I S A DETENTION OR A VOLUNTARY ENCOUNTER?
LIKE WE ALREADY DO.
I DON'T NE ED TO KNOW HOW WE ALREADY DO. WHAT I NEED IS AN EXPLANATION , NOW , AS TO HOW DO WE, WHAT IS THE FORMULA THAT WE HAVE SETOUT IN CASE LAW?
I THINK ANYTHING THAT IS CONSENTUAL. AS SOON AS HE ASKED, CAN I L EAVE, AS SOON AS
HAVE N'T WE SAID THAT WE VIEW IT FROM THE STANDPOINT OF AN OBJEC TIVE TEST?
YES, SI R.
AND THAT IS THAT , IF A , ON AN OBJECTIVE BA SIS , I F A CITIZEN WOULD REASONABLY BELIEVE THAT HE WASN'T FR EE TO LEAVE, THEN , IT IS A DETENTION . IS THAT CORRECT?
IF A REASON ABLE PERSON BEL IEVES THEY ARE NOT FREE TO LEAVE , YES.
SOME BODY THAT HAS NOW GIVEN THE POLICE THE DRIVERS LICENSE OR OTHER FORM OF IDENTIFICATION , D O YOU BELI EVE THAT THAT PERSON WOULD FEEL THAT THEY WERE FREE TO LEAVE , WITHOUT RECOVERING THAT IDENTIFICATION OR DRIVERS LICENSE?
THEY COULD ASK FOR THE IDENTIFICATION BACK , AND IF IT IS NOT, THEN AT THAT POINT , YOU WOULD HAVE A DETENTION .
WHY IS THE BU RDEN ON THE CITIZEN ON THE STR EET , TO HAVE TO ASK FOR THE IDENTIFICATION B ACK , IF THE ONLY REASON THAT THE IDENTIFICATION IS ASKED F OR TO BE GIN WITH , IS JUST TOSEE IF THEY HAVE IDENTIFICATION? WHY IS THE BUR DEN ON THE CITIZEN IN THAT ENCOUNTER , TO HAVE TO REQUEST THAT BACK , IN ORDER TO BE UNDETAINED OR WHATEVER, BEFORE THEY LEAVE? WHY IS N'T THE BURDEN ON THE POLICE, NOW , TO JUSTIFY , BEYOND THE REQ UEST FOR THE IDENTIFICATION, TO HAVE IDENTIFICATION? NOW , TO DO SOMETHING ELSE.
WELL , TWO POINTS. FIRST OF ALL , THE ARGUMENT ASFAR AS THE LENG TH OF DETENTION WAS NEVER R A ISED BELOW. THE ARGUMENT BELOW I S , YOU HAND OVER THE DR IVERS LICENSE AND THAT CREATES DETENTION , AND THERE IS NUMEROUS CASESTHAT HOLD TO THAT.
SO THE ARGUMENT WASN'T ADVANCED THAT , BE YOND HOLDINGTHE LIES PHONES OTHER PURPOSES THAT, IT BECAME A DETENTION?
THE ARGUMENT BELOW IS BASED UPON BAEZ , HAN DING OVER THE LICENSE AND RE DUCED TO DETENTION , AND BECAUSE IT IS CONSENT , THE BURDEN IS THERE IS NO EVIDENCE BELOW THAT HE WAS TR YING TO LEAVE.
DON'T WE LOOK AT THE TOTALITY OF THE CIRCUMSTANCES IN THESE CASES? I MEAN, THAT IS THE TEST , RIGHT?
CORRECT.
WE DON'T LOOK AT ONE ISOLATED THING THAT OCCURRED.
AND YOU LOOK , THE TWO PEOPLE DO WALK AWAY . WHEN THEY FIRST PULL UP, ONE WALKS AWAY . A SECO ND PERSON WHEN THEY WALK UP TO THE GROUP , W ALKS AWAY . THE DEFENDANT , IT IS NOT HIS BURDEN. IT IS HIS BURDEN TO SAY THAT HE WANTS TO WALK AWAY , AND SIMPLY BECAUSE WALKING AWAY WOULD EVIDENCE T HE FACT THAT HE DOESN'T WANT TO BE THERE. IF HE HAD DONE THAT AND THE OFFICER STOPPED HIM , WE HAVE A SITUATION LIKE
LE T'S GO BACK TO BROWN V ERSUS TE XAS. WHAT IS THE PRINCIPLE THAT COMES OUT IN BROWN VERSUS TEXAS?
THAT IS EXACTLY WHAT I JUST SAID. IF AN OFFICER WALKS UP TO A SITUATION AND THE INDIVIDUAL TURNS AND WALKS AWAY AND THEOFFICER SAYS , STOP , I AM NOT THROUGH WITH YOU YE T. COME BACK. W E ARE ST ILL ENGAGING IN CONVERSATION .
THE PRINCIPLE IS THAT THE POL ICE CANNOT DETAIN A CIT IZEN AND DE MAND IDENTIFICATION , CORRECT?
WITHOUT REASONABLE SUSPICION .
CHIEF JUSTICE: JUSTICE WELLS HAS A QUESTION.
THE TOTALITY OF THESE CIRCUMSTANCES , AS I UNDERSTAND WHAT THE DISTRICT COURT'S OPINION IS BASED UPON , IS THAT THE TR IAL COURT HERE , AFTER HEARING THE EVID ENCE , MAKE A DETERMINATION THAT THIS WAS A CONSENTUAL SITUATION , AND THAT IT WAS CONSENTUAL THROUGH THE T IME THAT THE MAN SAID , THERE IS AN OUTSTANDING WARRANT ON ME . IS THAT
THAT IS WHAT THE TRIAL COURT FOU ND AND THE FI FTH AFFIRMED, Y ES.
THAT IS WHAT THE FIFTH DIS TRICT DETERMINED.
CORRECT.
SO THOSE ARE THE FACTS THAT WE ARE DEALING WITH IN THIS CASE .
CORRECT.
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
IT CANN OT BE THE MOMENT , BECAUSE THERE ARE NUMEROUS CASES SAYING THAT YOU CAN HAND OVER IDENTIFICATION. JUST LIKE WHEN YOU CONSENT TO SOMEBODY TO SEARCH YOUR LUGGAGE, THAT CONSENT IS TO SEARCH THE LUGGAGE. AS SOON AS YOU SAY THE CONSENT IS OVER.I AM T I RED OF YOU SEARCHING MY LUGGAGE , IT ENDS. WE PUT THE BURDEN UPON THE DEFENDANT TO MAKE HIS CONSENT. AT THAT M OMENT THEY T URN THE D RIVERS LICENSE OVER. TIME IS A FACTOR AND IT IS THE TOTALITY OF THE CIRCUMST ANCES, BUT IN THAT SITUATION , OFCOURSE IN THIS SITUATION T O COME BACK WITH AN A CTIVE WARRANT , HIS TIMING WOULD BE UNTIL HE ANSWERED THE QUESTION WITH THE OFFICER, W ITHIN A COUPLE OF MINUTES.
I GUESS THAT IS WHERE MY PROBLEM IS HERE , W HICH IS THAT YOU WOULD SAY, WELL , IF YOU GIVE YOUR CONSENT TO SEARCH LUG GAGE AND THEN IT LASTS FOR AS LONG AS THE , UNTIL YOU SAY S TOP SEARCHING MY LUGGAGE , BUT HERE I WOULD LIKE T O SEE IDENTIFICATION , IT IS , SO ATTHAT POINT HE G IVES IDENTIFICATION, LOOKS AT THE PERSON, IT IS THE SAME PERSON , WHATEVER, THAT THE POLICE OFFICER DOESN'T TESTIFY THAT THE FACT OF THAT IDENTIFICATION , THAT IT MIGHT HAVE BEEN FALSE, THAT THERE WAS A CON CERN BECAUSE OF THE IDENTIFICATION . SO AT THAT POINT , THE N ATURE OF THE REQUEST , WHICH WAS , MAYI SEE IDENTIFICATION , NOW , THE OFFICER DECIDES I WANT TO USE THAT TO CONDUCT A WARRANTCHECK. SO I , MAYBE YOU DON'T , I SEETHAT AS , NOW , BECOMING A DIFFERENT LE VE L OF THE ENCOUNTER , HE DIDN'T SAY, WELL , NOW I HAVE THIS , WOULD YOU M IND WAITI NG HERE A COUPLE OF MINUTES.I WOULD LIKE TO RUN A RA RN T CHECK. AS I AM TO R UN A WARRANT CHECK.AS I SEE IT , HE T A KES IT FROM H IM AND STARTS THE TALK AND IS GOING BACK AND FORT AND AT THIS POINT THE DEFENDANT MUST KNOW WHAT IS HAPPENING AND AT THAT POINT HE SAID I HAVE GOT A WARRANT AND, QUOTE , VOLUNTARILY , BUT DOESN' T IT CHANGE THE NA TURE FROM SAYING I WANT TO SEE IDENTIFICATION, TO I AM RETAINING IT TO CON DUCT A WARRANT?
THE STATE'S POSITION IS NO. WHEN THE OFFICER TAKES THE IDENTIFICATION AND HANDS I T TO OFFICER DECHAMPS. AND SHE SAID ARE WE GOING TO FIND ANYTHING, AND HE SAID NO , SO THAT DOESN'T ADDRESS THE DEFENSE AND THE QUESTION OF THE OFFICER AND THE EXACT TIME FRAME THERE , SO A COUPLE OF MINUTES IS REQUESTED.
SO THE QUESTION BEFORE THIS COURT IS WHETHER OR NOT THE RETENTION OF THE ID MADE THIS A SEI ZURE.
CORRECT.
AND SO IF THE , IF WE HAVE THE SAME KIND OF SITUATION AND IT TOOK PL ACE , S AY , IN A SHOPPING MA LL. THERE WERE FOUR PE OPLE STANDING AROUND IN THE SHOPPING MALL , AND THE POLICE GO OVER TO THEM AND START ACONVERSATION AND ASK WH O ARE YOU , WHAT ARE YOU DOING HERE , COU LD I SEE SOME ID. WE WOULD , AND THEN THEY WOULD RUN A WARRANT CHECK ON THESE PEOPLE, AND THAT WOULD STILL BE PRO PER . IS THAT YOUR ARGUME NT?
YES. THE OFFICERS CAN ALWAYS GO UP AND ASK QUESTI ONS , ASK FOR IDENTIFICATION.
SO ANY TIME, UNDER ANY CIRCUMSTANCES , THAT , WELL , ANY TIME A POLICE ENCOUNTER SOMEONE AND YOU GIVE THEM YOUR IDENTIFICATION, THE POLICE IS FREE TO RUN SEARCHES ON THE PEOPLE.
AND , A GAIN , I THINK THAT IS WHA T THE COURT HELD IN LIGHTBOURNE. IN LIGHTBOURNE , HE SIMPLY ASKED FOR IDENTIFICATION , AND THE FACTS REFLECT HE W A LKEDBACK AND RAN A COMPUTER CH ECK, A REC ORD CHECK. WE ARE TALK ING ABOUT A COUPLE OF MINUTE SPAN HERE AND NOT A LENGTHY
SO IS I T YOUR POSITION, AGAIN, I THINK THAT THE CITIZEN HAS TO ASK , TO SOMEHOWINFORM THE OFFICER THAT THEY WANT THEIR LICENSE BACK AND GO ON.
HE COULD ASK FOR IT BACK. HE COULD WALK AWAY AND LEAVE IT THERE.
FOR EXAMPLE LE T'S SAY THE OFFICER HAD ASKED FOR AN I .D. AND THEN GOT A C A LL OVER THE PHONE, UNRE LATED T O THE ENCOUNTER WITH THE CITIZEN, AND THAT DELAYED THE RETURN OF THE DRIVERS LICENSE , THAT THAT IS NO DIFFERENT THAN IF IT IS A WARRANTS CHECK. THE QUESTION IS , DOES THE CITIZEN F EEL FREE TO GO ABOUT THEIR BUSI NESS .
IF THEY FEEL DETAINED, WOULD A REASONABLE PERSON FEEL DETAINED IN THAT SITUATION.
THAT IS WHERE , I THINK YOU JUST SAID SOMETHING AB OUT , I CAN ASK FOR MY LICENSE BACK , I DIDN'T GIVE YOU CONSENT TO RUN A WARRANTS CHECK. YOU ASKE D FOR ID. I COULD HAVE GIVEN YOU MY Y MCA I HAD D, FOR THAT - - MY YMCA ID FOR THAT MA TTER , BUT THE NEXT THING YOU SAID IS , WOULDA REASONABLE PERSON STILL FEEL FREE TO WALK AWAY , LEAVING THEIR IDENTIFICATION? AND THAT IS WHERE I HAVE GOTSOME PROBLEMS. I GUES S WE ARE TALKING ABOUT THE WHOLE UNIVERSE OF REASONABLE PEOPLE , BUT I DON'T KNOW MANY PEOPLE THAT WOULD WANT TO HAVE A GOVERNMENT -ISSUED I I D AND SPECIFICALLY IF IT WAS A DRIVERS LICENSE, RET AINED BY THE POLICE, ANDFEEL THAT THEY ARE FREE TO LEAVE, AND JUST LEAVE YOUR CARD WITH THE , YOUR LICENSEWITH THE POLICE!
A CITIZEN HAS NUMEROUS OPTIONS , L IKE THE PEOPLE DIDIN THIS INSTANT SITUATION , WHEN YOU SEE THE OFFICERS WALKING UP, YOU CAN WALK AWAY. SOME OF THEM IN THIS SITUATION DID. YOU CAN ENGAGE IN THE CONVERSATION. WHEN THE QUESTIONS BECOME
WHERE DOES THE CITIZEN LEARN THAT THEY HAVE ALL THESE OPTIONS? THAT IS, DO WE ASK THEQUESTION IN THIS TOTALITY OF CIRCUMSTANCES ANALYSIS OF HOWTHE AVER AGE CITIZEN WOULD FEEL ? FOR INSTANCE, IF YOU WALKED OUT OF THE COURT HERE AND DOWN THE ST EPS AND YOU WERE GOING TO GO ACROSS TO THE CAPITOL BUT YOU PAUSED AT THE WALKWAY , AND YOU BETTER PAUSE , BECAUSE THE CARS COME ALONG THERE ANDLET ME TE LL YOU , HELTER-SKELTER, AND THEN THE TALLAHASSEE POLICE OFFICERAPPROACHED YOU WHILE YOU WERE P AUSING AND SAID EXCUSE ME , CAN I PLEASE SEE SOMEIDENTIFICATION. OKAY. A RE YOU SAYING THAT THE A VERAGE CITIZEN WOULD NOT FEEL THAT THEY WERE BEING DETA INED AT THAT TIME , BY THE POLICE?
I AM SAYING THAT , AT THAT TIME YOU HAVE A CONSTITUTIONAL RIGHT TO WALK AWAY .
HOW DOES THE CITIZEN KNOW THAT? WHERE DOES THE AV ERAGE CITIZEN GET THIS KNOWLEDGE THAT , WHEN THE OFFICER WALKS UP AND IN F ULL UNIFORM , AND SAYS E X CUSE ME , MAY I PLEASE SEE YOUR D RIVERS LICENSE , YOU ARE S AYING THE AVE RAGE CITIZEN WOULD KNOW IN THAT CIRCUMSTANCE, THAT THEY ARE FREE TO W ALK AWAY . IS THAT CORREC T?
SEVERAL PEOPLE I N THIS CASE DID, SO OBVIOUSLY
I REALIZE THAT SEVERAL PEOPLE DID. OKAY. BUT WHERE DO WE GET THE INFORMATION THAT THE AVERAGE CITIZEN , UNDER THOSE CIRCUMSTANCES, WOULD KNOW THAT THEY HAD THE RIGHT TO WALK A WAY?
AGAIN , YOU LOOK AT THE TOTALITY OF THE SITUATION AND WHETHER THIS
WOULDN'T THE AVERAGE CITIZEN , M ORE NORMALLY , THINKTHAT THAT UNIF ORMED POLICE OFFICER THAT ASKED FOR MY DRIVERS LICENSE , THAT THEY HAD AN OBLI GATION TO PAUSE AND GIVE THEM AND COOPERATE WITH THE POLICE?
I THINK THAT IS JUST WHAT HAPPENED. THE AVERAGE PERSON WOULD COOPERATE WITH THE POLICE OFFICER.THERE HIS CASE LAW TAL KING ABOUT WE ARE NOT TALKING ABOUT AN AVERAGE GUILTY PERSON , SO IN THIS SITUATION THEDEFENDANT HAD CO CAINE ON HIM. I HAVE NO IDEA WHE THER THE PEOPLE THAT WALKED AWAY DID. THIS DEFENDANT HAD PREVIOUS ENCOUNTERS WITH THE POLICE. HE HAD BEEN STOPPED JUST A FEW WEEKS EAR LIER.
AND IT IS C LEAR FROM THE U NITED STATE SUPREME COURT , THERE IS AS RECENTLY AS LAST FALL, THAT IN AN ORDINARY COURSE, A POLICE OFFICER IS FREE TO ASK A PERSON FOR IDENTIFICATION, WITHOUT IMPLICATING THE FOU RTH AMENDMENT .
I N THE HIIBEL CASE , THESUPREME COURT CLEARLY SAID
WAS N'T THAT A REASONABLE SUSPICION CASE IN HIIBEL?
IT DE ALS WITH STOP.
IT ALSO CITED TO DELGADO.
WHICH IS CITED IN THE STATE'S BRIEF.IT IS THE STAT E'S PO SITION THAT THE FI FTH DISTRICT COURT OF A PPEAL WAS CORRECT AND THAT YOU SHOULD AFFIRM THE TR IAL COURT'S FIND ING.
CHIEF JUSTICE: THANK YOU V ERY M UCH .
THANK YOU, YOUR HONOR. I RESPECTFULLY DIFFER WITH MR . HEIDT , THAT A CITIZEN HAS ANY BURDEN WHATSOEVER, TO TRY AND EXTRICATE HIMS ELF FROM AN UNLAWFUL DETENTION. BASICALLY , BOILED DOWN T O ITS ESSENCE , WHAT THE STATE'S ADVOCATING IS THAT THE POLICE CAN APPROACH ANY CITIZEN AT R ANDOM , AB SENT ANY BE LIEF WHATSOEVER, THAT THERE IS CRIMINAL ACTI VITY AF OOT , AND HOLD THEM TO VERIFY THEIR IDENTITY, THEIR IMMIGRATION STATUS, WHETHER THEY HAVE SOME OUTSTANDING WARRANTS , AS LO NGAS THE CITIZEN DOESN'T PROTEST, AND THE LAW SIMPLY DOESN'T SAY THAT.
YOU SAY "HOLD". HOW ARE THEY HELD? I THINK THAT IS THE CRITICAL QUESTION.
HE TURNED OVER HIS LICENSE. HE IS NOT FREE TO GO, WHEN HIS CONSENT, AS JUSTICE PARIENTE , POINTED OUT
IF , INST EAD OF CHECKING FOR THE WARRANT , THE LAW ENFORCEMENT OFFICER HAD GOTTEN A CA LL ON THE RADIO FROM DISPATCH RE LATED TO SOMETHING DOWN THE ROAD OR WHATEVER AND WAS INTERRUPTED IN THE DISCUSSION WITH THE DRIVERS LICENSE, BUT THE DRIVERS LICENSE HAD BEEN HELD OVER , YOU ARE BASICALLY HAVE INDICATING A YOU ARE BASICALLY ADVO CATING ABRIGHT-LINE RULE THAT SAYS AT THAT POINT IT BECO ME AS DETENTION.
IT BECOMES A DETENTION , UNLESS THE PERSON THAT WE ARE DEALING WITH, HAS AG REED TO REMAIN AND ANS WER QUESTIONS . ONCE HE SATISFIED THAT INITIAL BURDEN.
WHAT YOU ARE SAYING I S THE SYNTH, THE OFFICER HAS TO SAY , I HAVE GOT THE CITIZEN , THEOFFICER HAS TO SAY , I HAVE GOT YOUR DRIVERS LICENSE. DO YOU MIND IF I HOLD IT FOR A WHILE BEFORE I GIVE IT BACK TO YOU?
IT IS ON CE THAT IS AFO OT.
SO THE TOTALITY OF IT , ONCE THE LAW ENFORCEMENT