Appendix — Golphin v. Florida (No. 06-1251)

No. 06-1251

IN THE

SUPREME COURT OF THE UNITED STATES

LORENZO GOLPHIN,

Petitioner,

V.

STATE OF FLORIDA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

APPENDIX

BILL MCCOLLUM

ATTORNEY GENERAL OF FLORIDA

WESLEY HEIDT

ASSISTANT ATTORNEY GENERAL

Florida Bar Number 618586

444 Seabreeze Blvd., Fifth Floor

Daytona Beach, FL 32118

(386)238-4990

FAX (386) 238-4997

COUNSEL FOR RESPONDENT

No. 06-1251

IN THE

SUPREME COURT OF THE UNITED STATES

LORENZO GOLPHIN,

Petitioner,

V.

STATE OF FLORIDA,

Respondent.

INDEX TO APPENDIX

OPINION OF THE FLORIDA SUPREME COURT,

Golphin v. Florida, 945 So. 2d 1174 (Fla. 2006) ............ A

OPINION OF THE FLORIDA SUPREME COURT,

Golphin v. Florida, 838 So. 2d 705 (Fla. Sth DCA 2002) ....... B

TRIAL COURT ORDER DENYING PETITIONER’S MOTION TO

SUPPRESS,

Issued August 21, 2002 nunc pro tunc May 31, 2002 .........

LORENZO GOLPHIN, Petitioner, vs. STATE OF FLORIDA,

Respondent.

No. SC03-554

SUPREME COURT OF FLORIDA

December 14, 2006, Decided

PER CURIAM.

We have for review the decision in Golphin v. State,'838 So.

2d 705 (Fla. 5th DCA 2003), which certified conflict with the decision

in Baez v. State, 814 So. 2d 1149 (Fla. 4th DCA 2002), quashed, 894

So. 2d 115 (Fla. 2004). We have jurisdiction. See art. V, § 3(b)(4),

Fla. Const. For the reasons that follow, we determine that the totality

_of the circumstances of Golphin's encounter with law enforcement

indicates that he was not seized for purposes of the Fourth

Amendment when the police officer held in her hand at that specific

site the identification he had consensually and voluntarily provided

and viewed it as she conducted a computerized check for warrants in

his presence and without moving away from that location where the

identification had been consensually and voluntarily produced.

Further, even if the encounter had amounted to a seizure, we conclude

that the evidence discovered during the search of Golphin need not be

- suppressed pursuant to the application of the three-part test announced

in State v. Frierson, 926 So. 2d 1139 (Fla. 2006). We therefore

approve the decision of the Fifth District Court of Appeal.

FACTS

The instant action arises from a decision of the Fifth District

Court of Appeal affirming the trial court's denial of Golphin's motion

to suppress drug evidence discovered on his person during the «ourse

of a search incident to an arrest on an outstanding warrait. See

Golphin v. State, 838 So. 2d 705 (Fla. Sth DCA 2003). On the evening

of November 13, 2002, Officers Maria Deschamps and Lindsey

Doemer were on patrol in the area of Taylor Avenue and Ridgewood

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Avenue in Daytona Beach—an area well known for prostitution and

narcotics traffic. The officers had been dispatched to conduct fie!d

interviews of possible prostitutes and other individuals in this area.

Upon observing a group of approximately five men near the corner of

Taylor and Ridgewood. the officers parked on the opposite side of the

street, exited their vehicle, walked across the street and approached

the group. As the officers approached, some individuals began to leave

the area, but at least one ultimately remained to speak with the

officers.

Officers Deschamps and Doemer parted, with Officer Doemer

moving to approach Golphin. It is uncontroverted that although others

in the group walked away, Golphin never attempted to leave the area.

Officer Doemer requested Golphin's identification, which he

voluntarily provided, and apparently without moving away simply

commenced a computer check for outstanding warrants. A male

officer who was part of a K-9 unit also arrived on the scene as the

events were unfolding, although apparently after identification had

been consensually produced.

After Officer Doemer had initiated the computer check, but

prior to obtaining any results, Golphin made a statement that he might

have an open warrant. The system reported that there was an

outstanding warrant for his arrest, and Golphin was arrested. The male

officer affiliated with the K-9 unit who had arrived on the scene then

assisted in the search incident to that arrest. This search revealed drugs

and paraphernalia giving rise to the charges underlying the instant

matter.

Golphin submitted a motion to suppress the drug evidence,

arguing that the encounter was not consensual and that he had been

unlawfully seized when the officer held his identification while

initiating the computer check process. Golphin further argued that the

unlawful seizure resulted in the discovery of the arrest warrant,

subsequent arrest, and incidental search which revealed the drug

evidence. The trial court concluded that the warrant was discovered as

a result of a consensual encounter and denied Golphin's motion. See

Golphin, 838 So. 2d at 706. Golphin appealed the trial court's ruling,

relying on the decision in Baez v. State, 814 So. 2d 1149 (Fla. 4th

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DCA 2002), in which the Fourth District held that an otherwise

consensual encounter matures into a seizure when an officer retains a

person's identification for the purposes of conducting a: warrants

check.

In affirming the trial court's determination, the Fifth District

expressly disagreed with the Fourth District's decision in Baez and

certified a conflict to this Court. The Fifth District rejected what it

perceived to be a bright line rule regarding the impact of retaining an

individual's identification, and relied upon the United States Supreme

Court's decision in Florida v. Bostick, 501 U.S. 429, (1991), as

providing the proper “totality of the circumstances" analysis. See

Golphin, 838 So. 2d at 706-07. Applying that standard to the facts of

the case, the Fifth District determined:

In sum, we believe Baez' to be wrongly

decided first, because it creates a per se rule, which

the Supreme Court in Bostick rejected in favor of the

"totality of the circumstances" test, and second,

' Another panel of judges in the Fourth District has agreed with

this analysis and also reached the same conclusion as the panel of judges

in Baez. See Perko v. State, 874 So. 2d 666, 667 (Fla. 4th DCA 2004)

(reversing denial of motion to suppress and determining that Perko was

effectively seized when the police retained his identification and received

his consent to conduct a search yielding drug evidence); see also Mays

v. State, 887 So. 2d 402 (Fla. 2d DCA 2004) (noting that the Second

District has determined that a brief retention of identification for the

purpose of conducting a warrants check constitutes a consensual

encounter whereas the Fourth District has determined it is a seizure;

comparing Watts v. State, 788 So. 2d 1040 (Fla. 2d DCA 2001) (en

banc); State v. Mitchell, 638 So. 2d 1015 (Fla. 2d DCA 1994); and

McLane v. Rose, 537 So. 2d 652 (Fla. 2d DCA 1989), with Baez and

Perko), notice invoking discretionary jurisdiction filed, No. SC04-2149

(Fla. Nov. 5, 2004). The proceedings in Mays v. State, No. SC04-2149,

have been stayed pending the resolution of the instant case.

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because it reaches what we believe to be the wrong

conclusion when the proper test is applied. See People

v. Cole, 256 Ill. App. 3d 590, 194 Ill. Dec. 545, 627

N.E.2d 1187 (1994).

In applying the Bostick test to the instant case,

we conclude that the trial court properly denied the

motion. The police behavior in approaching the men

obviously failed to communicate an intent to restrict

the men. Indeed, some of the men walked away from

the police without incident. There was no indication

that police sought out Appellant or threatened him or

intimidated him in any way. Appellant was fully

cooperative and volunteered information about his

arrest history. Finally, Appellant did not manifest any

desire to leave, nor did he request that his

identification be returned. The police communicated

nothing, by word or act, to lead Appellant to

reasonably conclude that he was not free to leave.

The trial judge found that Appellant consented

to the encounter with police, and we concur that

Appellant's consent, when all circumstances are

considered, was not the product of intimidation or

harassment as viewed from the position of a

reasonable person.

Golphin, 838 So. 2d at 708. The Fifth District certified a conflict with

the Fourth District's decision in Baez’. This Court accepted

* Our decision quashing the Fourth District's decision in Baez,

see State v. Baez, 894 So. 2d 115 (Fla. 2004), does not control the

analysis here. The scenario presented in Baez involved an officer

responding to a complaint concerning a van parked at night in an

otherwise abandoned warehouse area. See id. at 115. When the officer

arrived on scene to investigate, he observed the driver of the vehicle

slumped over the steering wheel of the parked van. See id. When

awakened, the man exited the van without instruction from the officer.

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See id. at 116. «. . zht of the factual record, a plurality of this Court

determined:

The totality of the circumstances presented

demonstrates that . . . the officer did have a reasonable

basis and reasonable suspicion to investigate Baez

further. Baez was found in a_ suspicious

condition--slumped over the wheel of his van—in a

location in which he should not normally have been--a

dimly lit warehouse area at night. Baez voluntarily

exited his vehicle, and when asked for identification,

gave his driver's license to the officer. The officer had

sufficient cause to further investigate by doing a

computer check based on Baez's suspicious behavior.

It was not unreasonable for the officer to proceed with

the computer check when he had not yet eliminated’

reasonable concern and justified articulable suspicion

of criminal conduct.

Id. at 117. As the quoted language indicates, the plurality tacitly

assumed that a seizure occurred under different facts, and focused its

consideration on whether the seizure was reasonable and thus

constitutional.

The same rationale guided this Court's consideration in

Lightbourne v. State, 438 So. 2d 380 (Fla. 1983), a case in which we

determined that no unlawful intrusion had occurred when the police,

acting in response to a citizen's complaint regarding a suspicious

vehicle, approached Lightbourne's parked car, asked him some simple

questions regarding his reason for being there, and ran a "routine

check" on his car and identification. Id. at 387. We determined that a

well-founded suspicion was not required under the facts of that case

because the officers were responding to a call and were not acting on

their own “hunch.” Id. at 387. The encounter in the instant matter, by

contrast, was not initiated on the basis of a citizen complaint or any

other "suspicious" circumstance requiring investigation. Thus, neither

Baez nor Lightbourme controls the analysis here or compels a particular

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jurisdiction, see Golphin v. State. 888 So. 2d 17 (table) (Fla. 2004), and

the instant review followed.

ANALYSIS

WHETHER A SEIZURE OCCURRED

The Fourth Amendment to the United States Constitution and

section 12 of Florida's Declaration of Rights guarantee citizens the

right to be free from unreasonable searches and seizures. See U.S.

Const. amend. IV; art. I, § 12, Fla. Const. Florida's constitutional

protection expressly provides that the right shall be construed in

conformity with the Fourth Amendment to the United States

Constitution, as interpreted by the United States Supreme Court. See

art. I. § 12, Fla. Const. Items obtained in violation of Florida's

constitutional protection shall be excluded from evidence if such items

would be excluded pursuant to United States Supreme Court

jurisprudence. See id.

The Fourth Amendment requires all warrantless "seizures" of

a person to be founded upon at least reasonable suspicion that the

individual seized is engaged in wrongdoing. See United States v.

Mendenhall, 446 U.S. 544, 552, 100 S. Ct. 1870, 64 L. Ed. 2d 497

(1980) (plurality opinion); see also Terry v. Ohio, 392 U.S. 1,21, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (determining that reasonableness

will depend on the existence of specific and articulable facts which,

taken together with rational inferences from those facts, reasonably

warrant the intrusion). This requirement "governs all seizures of the

person, ‘including seizures that involve only a brief detention short of

traditional arrest.'" Mendenhall, 446 U.S. at 551 (plurality opinion)

(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878.95 S.Ct.

2574, 45 L. Ed. 2d 607 (1975)).

Not all encounters between law enforcement and individual

citizens. however, constitute "se:zures.” See Terry, 392 U.S. at 19n.16

outcome.

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("Obviously, not all personal intercourse between policemen and

citizens involves 'seizures' of persons."). As the United States Supreme

Court has determined: “Only when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a

citizen may we conclude that a 'seizure' has occurred.” Id. This Court

has defined three levels of police-citizen encounters. See Popple v.

State, 626 So. 2d 185 (Fla. 1993). First are those referred to and

defined as "consensual encounters," which involve minimal police

contact and do not invoke constitutional safeguards. See id. at 186.

"During a consensual encounter a citizen may either voluntarily comply

with a police officer's requests or choose to ignore them." Id. Second

are those designated investigatory stops, at which time 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.” Id. (citing § 901.151, Fla. Stat. (1991)).? The

third level is an arrest, which must be supported by probable cause that

a crime has been or is being committed. See id.

The State does not contend that the actions of Officers

Deschamps and Doemer were predicated on reasonable articulable

suspicion that Golphin was engaged in criminal activity.‘ Indeed, the

record establishes that the officers were only engaged in general field

interviews in this area known for narcotics and prostitution and

approached the group of men simply, in Officer Doemer's words, to see

"what they were up to." The rationale voiced by this officer clearly

would not provide the requisite reasonable articulable suspicion

necessary to justify any form of brief restraint of movement or seizure.

See Popple, 626 So. 2d at 186; see also Brown v. Texas, 443 U.S. 47,

> An investigatory stop will not violate a citizen's Fourth

Amendment rights if based on "a well-founded, articulable suspicion

of criminal activity." Id.

* During the course of his encounter with Officer Doemer,

Golphin did reveal that he had an open warrant. However, he did so

only after she had begun the process of checking for outstanding

warrants.

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52,99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979) ("The fact that appellant

was in aneighborhood frequented by drug users, standing alone, ts not

a basis for concluding that appellant himself was engaged in criminal

conduct. In short, the appellant's activity was no different from the

activity of other pedestrians in that neighborhood."”). The United States

Supreme Court has stated that law enforcement officers do not violate

the Fourth Amendment's prohibition against unreasonable seizures

merely by approaching individuals on the street and asking them

questions if they are willing to listen. See United States v. Drayton, 536

U.S. 194, 200, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). Thus, the

legal question presented in this matter is whether Golphin had been

seized at any point for purposes of the Fourth Amendment considering

the totality of circumstances which followed. If so, then this Court must

necessarily conclude that any seizure that occurred at any point without

the necessary basis in a reasonable articulable suspicion of criminal

activity violated Golphin's Fourth Amendment rights.

The State posits that the encounter at issue here was in all

aspects consensual, and that the retention of the identification as it

occurred here for purposes of conducting a warrants check did not

elevate the encounter into an investigatory stop for which a reasonable

articulable suspicion of criminal activity was necessary to avoid

constitutional problems. On the other side, Golphin argues that the

encounter was not consensual because he did not feel free to walk away

and end the police inquiry. Golphin supports his argument by

contending that the police officers had summoned back one man who

had attempted to depart, that the police cruiser was parked in such a

manner as to block his egress from the area, and that he feared the

police dog in the vehicle that subsequently arrived on the scene would

chase him if he attempted to leave.

The trial court accepted the State's position in determining that

the conduct of the officers did not constitute a show of authority that

would have caused a reasonable person to believe that he or she was

not free to walk away. Important to the trial court's assessment was the

fact that the officers approached without lights. sirens or weapons

drawn. and did not instruct Golphin to stop or compel the individual

who left the area to return. The triai court credited the officers’

testimony that the group of men. including Golphin, had been

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approached in casual conversation and that Golphin freely,

consensually, and voluntarily produced his identification.*

The district court accepted the trial court's findings and agreed

with its legal analysis. Relying on the United States Supreme Court's

decision in Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L.

Ed. 2d 389 (1991), the district court concluded that the police behavior

in the present matter "obviously failed to communicate an, intent to

restrict the men." Golphin, 838 So. 2d at 708. The district court

specifically noted that "some of the men walked away from the police

without incident" and that the record did not establish that the police

threatened or harassed Golphin in any way. Id. The district court also

relied on record evidence showing that Golphin fully cooperated with

the police, volunteered information regarding his criminal history, and

never manifested any desire to leave the area. See id. On this basis, the

district court concluded "[t]he police communicated nothing, by word

or act, to lead [Golphin] to reasonably conclude that he was not free to

leave.” Id.

As with the district court below, this Court will "accord a

presumption of correctness to the trial court's rulings on motions to

suppress with regard to the trial court's determination of historical

facts," but "independently review mixed questions of law and fact that

ultimately determine constitutional issues" in the Fourth Amendment

context. Globe v. State, 877 So. 2d 663, 668-69 (Fla. 2004) (quoting

Nelson v. State, 850 So. 2d 514, 521 (Fla. 2003)). In so doing, we are

guided by the evolution of the parameters of what constitutes a

"seizure" under Fourth Amendment and Florida jurisprudence.

Formal arrest is the ultimate form of "seizure of a person." See

Califomia v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 113 L. Ed.

* The trial court specifically discredited Golphin's testimony

that the police had pulled their cruiser onto the sidewalk in a manner

that prevented him from leaving the area. Additionally, there is no

evidence that the K-9 unit became actively involved in this scene until

the search occurred which followed the arrest.

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2d 690 (1991). In the absence of a formal arrest, whether or not a

person has been seized will be adjudged in accordance with the

reasonable person standard initially articulated by the United States

Supreme Court tn United States v. Mendenhall, 446 U.S. 544, 554-55,

100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (plurality opinion). There the

High Court stated:

We conclude that a person has been "seized"

within the meaning of the Fourth Amendment only if,

in view of all of the circumstances surrounding the

incident. a reasonable person would have believed that

he was not free to leave. Examples of circumstances

that might indicate a seizure, even where the person

did not attempt to leave, would be the threatening

presence of several officers, the display of a weapon

by an officer, some physical touching of the person of

the citizen, or the use of language or tone of voice

indicating that compliance with the officer's request

might be compelled. In the absence of some such

evidence, otherwise inoffensive contact between a

member of the public and the police cannot, as a

matter of law, amount to a seizure of that person.

Id. at 554-55 (plurality opinion) (citations and footnote omitted). This

Court has similarly provided:

Although there is no litmus-paper test for

distinguishing a consensual encounter from a seizure,

a significant identifying characteristic of a consensual

encounter is that the officer cannot hinder or restrict

the person's freedom to leave or freedom to refuse to

answer inquiries, and the person may not be detained

without a well-founded and articulable suspicion of

criminal activity. This Court has consistently held that

a person is seized if. under the circumstances, a

reasonable person would conclude that he or she ts not

free to end the encounter and depart.

Popple. 626 So. 2d at 187-88 (citation omitted).

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Implicit in the reasonable person standard is the notion that if

a reasonable person would feel free to end the police encounter, but

does not, and is not compelled by the police to remain and continue the

interaction, then he or she has consented to the encounter. It is on that

basis that both the trial court and district court below determined that

Golphin's encounter with Officer Doemer, including his act of

providing her with his identification, was consensual in nature. Golphin

did not preserve and we have not been asked to separately consider,

and indeed do not decide, whether or not Golphin after consensually

and voluntarily producing identification specifically consented to

Officer Doemer using that identificat‘on in his presence to conduct a

warrants check or how the lack of any such consent might impact the

analysis in this case. Golphin did not argue below* that any consent

implied by the production of his identification extended only to the

examination of its validity, which was undermined or eviscerated when

the officer used the identification for the further purpose of conducting

a warrants check in his presence. Circumstances may exist in which an

officer's conduct exceeds the scope of consent that reasonably can be

implied by the act of handing over one's identification, and such

* It was not until submission of his reply brief to this Court that

Golphin argued that once Officer Doemer ascertained that the picture

on the identification he had provided matched his appearance, she had

no legal basis for any further retention of the identification to check for

outstanding warrants.

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circumstances may indicate that a seizure has occurred.’ That is not,

however, an issue currently before this Court.

” It is axiomatic that if a seizure occurs, the reasonableness

requirement of the Fourth Amendment dictates that "[t]he scope of the

detention must be carefully tailored to its underlying justification." See

Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L. Ed. 2d 229

(1983) (plurality opinion) (explaining that the reasonableness

requirement of the Fourth Amendment is not diluted in the context of

warrantless seizures predicated on less than probable cause). As the

Royer Court succinctly explained:

[A]n investigative detention must be temporary and

last no longer than is necessary to effectuate the

purpose of the stop. Similarly, the investigative

methods employed should be the least intrusive means

reasonably available to verify or dispel the officer's

suspicion in a short period of time.

Id. Indeed, it is on this basis that we determined a Fourth Amendment

violation had occurred in State v. Diaz, 850 So. 2d 435 (Fla. 2003). a

case in which we held that Diaz's Fourth Amendment rights were

violated when the police officer, who had initiated a traffic stop

because he could not read the temporary tag displayed on Diaz's

vehicle, continued to detain him and required the production of

additional information after ascertaining that the temporary tag was

completely valid. See id. at 436, 440. We relied upon Royer and

Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660

(1979), for the proposition that once a police officer has satisfied the

purpose for which he has initially stopped a motonst, the officer no

longer has any reasonable grounds or legal basis for continuing the

detention. See Diaz, 850 So. 2d at 438. Certainly the exhibition of

unqualified police discretion in the context of a consensual encounter

is likewtse troublesome, and may indicate that a seizure has indeed

occurred.

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- Applying the reasonable person standard to determine whether

a seizure has occurred is a fact-intensive analysis in which the

reviewing court must consider the totality of the circumstances. As

stated by the United States Supreme Court in Florida v. Bostick, 501

U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991):

We adhere to the rule that, in order to

determine whether a particular encounter constitutes

a seizure, a court must consider all the circumstances

surrounding the encounter to determine whether the

police conduct would have communicated to a

reasonable person that the person was not free to

decline the officers' requests or otherwise terminate

the encounter.

Id. at 439.

The seizure analysis has not traditionally permitted the

establishment of bright line rules. Nearly a decade after the United

States Supreme Court's determination that we had erred in establishing

a per se prohibition on drug interdiction efforts known as "bus sweeps,"

see id. at 435, it again rejected the Eleventh Circuit's creation of a per

se rule that would suppress any evidence obtained during bus sweeps

in the absence of the police warning the passengers that they may

refuse to cooperate. See United States v. Drayton, 536 U.S. 194, 202,

206, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). Instead of a per se

rule, the Drayton Court again applied a totality of the circumstances

analysis in determining that no seizure had occurred where the officers

did not compel answers to their questions, did not brandish weapons or

make any intimidating movements, left the aisle free so that passengers

could exit, spoke to passengers one by one and in a polite, quiet voice,

and said nothing that would suggest to a reasonable person that he or

she was barred from leaving the bus or otherwise terminating the

encounter. See id. at 203-04. As in Drayton, the present analysis does

not turn solely on any one factor, but must be informed by the total

circumstances of the officers’ approach, their comportment, Golphin's

reaction, and the circumstances surrounding the request for his

identification as well as the subsequent warrants check.

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While bright line rules have been rejected in this context,

decades of the utilization ofthe reasonable person standard has yielded

roughly contoured categories of police conduct which will not usually

trigger Fourth Amendment concerns. Pertinent to the instant analysis,

a police inquiry regarding an individual's identity and accompanying

request for identification has not typically constituted a "seizure" for

Fourth Amendment purposes, as long as the police have not

communicated the message that compliance with their inquiries is

required.* See Bostick, 501 U.S. at 435 (concluding that police may

"generally ask questions of [an] individual, ask to examine the

* Golphin has asserted before this Court that law enforcement's

authority to stop pedestrians and request identification is limited to the

context of a Terry stop based upon reasonable articulable suspicion.

This assertion has no basis in the law, and Golphin mistakenly invokes

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 124S.

Ct. 2451, 159 L. Ed. 2d 292 (2004), for support. Hiibel is the latest in

a line of cases involving "stop and identify" statutes, which require

persons to identify themselves pursuant to law enforcement request.

See also Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed.

2d 903 (1983); Brown v. Texas, 443 U.S. 47, 99S. Ct. 2637, 61 L. Ed.

2d 357 (1979). In Hiibel, the county sheriff's office received a call

reporting that a man was assaulting a woman in a red and silver pickup

truck on an identified road. See id. at 180. A police officer was

dispatched and indeed discovered a truck matching that description at

the designated location with a woman inside and man standing beside.

The officer approached the man, explaining that he was investigating

a report of an assault and asking to see identification. Thus, it was in

this context--a cnminal investigation based on reasonable articulable

suspicion--that the High Court held that obtaining a suspect's name in

the course of a Terry stop serves important government interests and

that a state law requiring a suspect to disclose his name in the course

of a valid Terry stop is consistent with the Fourth Amendment

prohibition against unreasonable searches and seizures. See id. at

187-88. The Hiibel Court further recognized that "[iJn the ordinary

course a police officer is free to ask a person for identification without

implicating the Fourth Amendment." Id. at 185.

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individual's identification, and request consent to search his or her

luggage--as long as the police do not convey amessage that compliance

with their requests is required"); see also Drayton, 536 U.S. at 197

(stating that the Fourth Amendment "permits police officers to

approach bus passengers at random to ask questions and to request

their consent to searches, provided a reasonable person would

understand that he or she is free to refuse"); Immigration &

Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104S. Ct. 1758, 80

L. Ed. 2d 247 (1984) ("[I]nterrogation relating to one's identity or a

request for identification by the police does not, by itself, constitute a

Fourth Amendment seizure."); Royer, 460 U.S. at 501 (plurality

opinion) (determining that law enforcement officers asking for and

examining an individual's airline ticket and driver's license were

permissible in themselves).

While a noncompulsory request for an _ individual's

identification has been unlikely to implicate the Fourth Amendment in

isolation, the retention of identification during the course of further

interrogation or search certainly factors into whether a seizure has

occurred. Indeed, the United States Supreme Court addressed the

retention of identification and travel documents in Royer as the High

Court distinguished that case from its earlier determination in

Mendenhall. In both cases, narcotics agents approached persons

traveling through major airports who were perceived to fit a drug

courier profile and requested their travel documents and identification.

See Royer, 460 U.S. at 493; Mendenhall, 446 U.S. at 547. Similarly, in

both cases, these individuals ultimately consented to searches that

revealed illicit drugs. See Royer, 460 U.S. at 494-95; Mendenhall, 446

U.S. at 548-49.

In Mendenhall, two Justices determined that no seizure had

occurred because the events evolved on a public concourse, the agents

did not wear uniforms or display weapons, and the agents did not

summon Mendenhall to their presence. See 446 U.S. at 555. These

Justices also remarked that the officials had "requested, but did not

demand to see the respondent's identification and ticket." Id. In Royer,

however, the High Court reached the opposite conclusion. A plurality

of the United States Supreme Court rejected the State's assertion that

the entire encounter was consensual, stating:

A-15

Asking for and examining Royer's ticket and his

driver's license were no doubt permissible in

themselves, but when the officers identified

themselves as narcotics agents, told Royer that he was

suspected of transporting narcotics, and asked him to

accompany them to the police rcom, while retaining

his ticket and driver's license and without indicating in

any way that he was free to depart, Royer was

effectively seized for the purposes of the Fourth

Amendment.

Id. at 501 (emphasis added). The plurality specifically distinguished the

scenario presented in Mendenhall, stating:

The case before us differs in important

respects. Here, Royer’s ticket and identification

remained in the possession of the officers throughout

the encounter; the officers also seized and had

possession of his luggage. As a practical matter, Royer

could not leave the airport without them. In

Mendenhall, no luggage was involved, the ticket and

identification were immediately returned, and the

officers were careful to advise that the suspect could

decline to be searched.

Id. at 504 n.9 (emphasis added); accord Jacobson v. State, 476 So. 2d

1282, 1285 (Fla. 1985) (determining that stop in-airport was not a

seizure and relying, in part, on the fact that the "officers retained the

suspects’ identification and airline tickets only long enough to examine

them, and promptly returned them") (emphasis added).

In United States v. Thompson, 712 F.2d 1356(1 1th Cir. 1983),

the Eleventh Circuit applied the lessons from Royer and other airline

ticket cases in determining that retention of an individual's driver's

license had enhanced a consensual encounter into an investigatory stop.

In that case, a Jacksonville Port Authority police officer approached the

driver of a vehicle that had been parked in the garage for two weeks.

Upon approach, the officer noticed that the driver had a circular object

held to his nose which he moved to his iap, capped with a lid, and then

A-16

moved to his side upon noticing the approaching officer. See id. at

1358. The officer asked the driver for his identification, determined

that it appeared valid, but retained the identification while requesting

to inspect the object Thompson had placed at his side. See id. The

object which Thompson produced in response contained cocaine. See

id. The Eleventh Circuit determined that the officer's conduct prior to

requesting the object constituted an unlawful investigatory stop. In the

court's words:

When [the officer] retained Thompson's license, the

encounter matured into an investigative stop protected

by the Fourth Amendment. Without his driver's license

Thompson was effectively immobilized. A reasonable

person in these circumstances would not have believed

himself free to leave. If Thompson had tried to drive

away he could have been arrested for driving without

a license... .

. . . Contrasted with a person whose airline

ticket has been retained, a person in a car whose

license has been retained has less reason to expect that

he will be permitted to leave. While a person may

theoretically purchase another airline ticket and

proceed on his way, a driver whose license has been

retained may drive away only at the risk of arrest.

Thus, the airline ticket cases reinforce, if not compel,

our conclusion that a driver whose license has been

retained would not reasonably believe himself free to

leave.

Id. at 1359-61.

Subsequently, the Eleventh Circuit refused to apply the

analysis undertaken in Thompson to a case involving the retention of

a pedestrian's identification.’ In United States v. De La Rosa, 922 F.2d

* Other federal circuit courts have also considered the status of

the individual as a driver or a pedestrian, and even the type of

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675 (11th Cir. 1991). a police officer followed the vehicle driven by De

La Rosa into his apartment complex. After De La Rosa parked and

exited his vehicle, an officer pulled behind De La Rosa's car, exited,

and asked to speak with him. See id. at 677. De La Rosa agreed and

produced his Georgia driver's license upon request. See id. Before

returning the license, the officer asked for and received permission to

search De La Rosa's vehicle. See id. The officer handed De La Rosa's

identification to a second officer, searched the vehicle, and found

evidence of narcotics trafficking. See id. De La Rosa ultimately

admitted that he was in the cocaine business, and led officers to other

locations where additional evidence was found. See id. at 678.

Subsequent to his arrest, De La Rosa sought to suppress the

evidence arguing that he consented to the searches only after he was

unlawfully seized. See id. The Eleventh Circuit affirmed the district

court's denial of the motion to suppress, determining that De La Rosa

had not been seized notwithstanding the fact that the police had

retained his license for a brief time. See id. The appellate court agreed

with the trial court's reliance on the fact that De La Rosa had returned

home for the evening and did not intend to use his vehicle in the

immediate future. See id. In light of those circumstances, the circuit

court determined that a reasonable person wouid have believed he was

free to walk into his home and avoid further conversation with police.

See id. The Court distinguished Thompson on the basis that De La

Rosa was not intent on driving his vehicle at the time the police

retained his license and thus, "temporary retention of the license did

identification involved, in determining whether a seizure has occurred.

See United States v. Weaver, 282 F.3d 302 (4th Cir. 2002)

(distinguishing bright line rule applicable to retention of driver's

licenses in the context of traffic stops and noting that Weaver was a

pedestrian and could have refused to provide his identification and

walked away from the police encounter); United States v. Campbell.

843 F.2d 1089, 1093 (8th Cir. 1988) (expressing doubt that retention

of a used one-way ticket and a state identification card, as opposed to

a driver's license, were significant factors in determining whether a

seizure occurred).

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not preclude [De La Rosa] from terminating the encounter by going

‘into his apartment." Id. at 678 n.2.

The distinction between Thompson and De La Rosa is reflected

in the reasoning employed in United States v. Jordan, 294 U.S. App.

D.C. 227, 958 F.2d 1085 (D.C. Cir. 1992). There, the circuit court

determined that to decide whether a reasonable person would feel free

to "disregard the police and go about his business," it becomes "crucial

to focus on what the person's immediate ‘business' is, in order to decide

if the police retention of his papers would likely impede his freedom to

proceed with it." Id. at 1088. Applying that test, the appellate court

determined that a seizure had occurred because when the identification

was taken Jordan had intended to board a waiting car-and depart the

bus terminal parking lot. See id. The Jordan court indicated that the

case would have posed a more difficult question if the police had

requested and retained Jordan's identification as he stood in line to buy

a bus ticket or had he been aboard the bus awaiting departure. See id.

In addition to the status of the individual as a driver or a

pedestrian, federal courts have also considered the circumstances of the

warrants check in determining whether a seizure has occurred. In

United States v. Analla, 975 F.2d 119 (4th Cir. 1992), police received

a call indicating that a person matching the description of the man

wanted in connection with a robbery and murder was using a pay phone

outside a convenience store. See id. at 121. Two officers approached

the man, asked to speak with him, and requested his driver's license and

registration. See id. at 122. Upon receipt of the documents, one officer

radioed the dispatcher from his walkie-talkie to check for outstanding

warrants, while another officer asked for permission to search Analla's

car. See id. Analla consented and a pistol later identified as the murder

weapon was retrieved from under the driver's seat. See id.

In affirming the district court's denial of Analla's motion to

suppress, the Fourth Circuit determined that Analla was not seized

when the officer approached and asked to see his license and

registration. The court noted:

[The officer] necessarily had to keep Analla's license '

and registration for a short time in order to check it

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with the dispatcher. However, he did not take the

license into his squad car, but instead stood beside the

car, near where Analla was standing, and used his

walkie-talkie. Analla was free at this point to request

that his license and registration be returned and to

leave the scene.

Id. at 124; cf. United States v. Johnson, 326 F.3d 1018, 1022 (8th Cir.

2003) ("A reasonable person would not believe that he was free to

leave a scene where three uniformed officers drew him away from

their party, stood closely at either side of him, and took possession of

his personal property--here, his driver's license--while conducting a

brief interrogation.").

The interpretive case law supports the trial court's

determination here that in light of the totality of the circumstances

involved, Golphin's encounter with the police was consensual in

nature, and did not mature into a seizure on the facts presented simply

by virtue of Officer Doemer retaining and using Golphin's

identification to conduct a warrants check. Giving due deference to

the historical facts found by the trial court, the totality of the

circumstances in this case demonstrates that police officers

approached a group of men in a casual manner, without use of sirens,

lights, or weapons, and without blocking the egress from the area.

Certain of the men opted not to talk with the officers and walked away

from the scene. Golphin, specifically, interacted primarily with a

single officer. The officer engaged Golphin in a casual manner,

requested his identification (which he voluntarily provided), and

conducted a warrants check in Golphin's presence while continuing to

talk in a polite manner with Golphin regarding his criminal record and

other issues. Golphin was polite and cooperative throughout the

encounter. Once the officer confirmed the open warrant for Golphin's

arrest, Golphin was arrested and another officer assisted in conducting

the incident search. This is not a case in which Golphin was

summoned to the presence of multiple officers, isolated by them in

any way, or encountered in a way that would communicate that he was

not free to go. Cf. Johnson, 326 F.3d at 1022.

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Moreover, at the time he was approached, Golphin was not

the driver of a vehicle such that abandoning his driver's license

identification to the officer's possession would subject him to penalty

for violating Florida's traffic laws. See § 322.15, Fla. Stat. (2003)

(providing that operating a motor vehicle without a license in one's

"immediate possession” is a traffic infraction).'° Thus, theoretically,

retention of Golphin's identification would not have constrained his

ability to either request the return of the identification or simply end

the encounter by walking into the apartment in which he was staying.

See De La Rosa, 922 F.2d at 678; Jordan, 958 F.2d at 1088.

Additionally, although there is nothing in the factual record

establishing with absolute certainty the manner in which Officer

Doemer conducted the warrants check, the record does show that she

did not remove herself from the immediate vicinity of Golphin, and

indeed continued to talk with him throughout the course’ of the

warrants check. There is no contention that the officer took possession

of Golphin's identification and separated herself from the location by

returning to the police cruiser and closing the door behind her to

conduct a warrants check, thereby effectively foreclosing his’ ability

to request the return of his identification so that he could proceed on

his way. Cf. Analla, 975 F.2d at 124.

It must also be considered that Officer Doemer did not retain

Golphin's identification while seeking consent to search his person or

effects. While "search" and "seizure" are most certainly distinct

concepts, retention of identification prior to seeking consent to

conduct a search has factored into the analysis in some cases in which

it has been determined that the entire encounter was nonconsensual.

See Jordan, 958 F.2d at 1088 (determining that the police officers’

inhibition of Jordan's desire to exit the bus terminal parking lot by

retaining his driver's license combined with the fact that the police

continued to retain his license when they asked permission to search

his tote bag "pushes his case over the line"); see also United States v.

'° At the suppression hearing, Golphin testified that he

provided Officer Doemer his state identification card, not a driver's

license. The State does not challenge that assertion.

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Glover, 957 F.2d 1004, 1009 (2d Cir. 1992) (determining that a

seizure occurred when government agent requested defendant to

proceed to security office for further questioning without returning

defendant's identification and without telling defendant that he was

free to leave); Smith v. State, 753 So. 2d 713. 717 (Fla. 2d DCA 2000)

(Altenbernd, A.C.J., concurring) ("I place considerable importance

on the fact that the officer took Mr. Smith's cigarettes and money

away from him and did not ask to perform an oral cavity search until

he had possession of this property. Most reasonable people would not

feel free to walk away from an officer who had their money."); Barna

v. State. 636 So. 2d 571, 572 (Fla. 4th DCA 1994) (holding that

contact was an unlawful investigatory stop where police officers

informed the defendant that they were “investigating” due to his

presence and that of a companion in a parking lot known for criminal

activity and retained his identification to conduct a computer check

during which he consented to a search for drugs and weapons). Such

a factor is absent in the present case.

While we approve the decision of the district court below, our

decision today does not stand for an absolute, expansive proposition

that retaining identification for the purpose of conducting a warrants

check could never implicate constitutional safeguards. Certainly, we

can conceive of circumstances where the retention of identification for

the purpose of running a warrants check or other purposes, when

viewed in the totality of the circumstances, might implicate the Fourth

Amendment.

We are also mindful of decisions from other jurisdictions in

which courts have determined that retention of identification for the

purposes of conducting a warrants check elevates an otherwise

consensual encounter into an investigatory stop and, in so doing, have

highlighted serious concerns that may signal a growing disconnect

between the evolution of the reasonable person standard and the

realities of modern society. The Supreme Court of Tennessee spoke

to this point in State v. Daniel 12 S.W.3d 420 (Tenn. 2000), where it

held:

[WJhat begins as a consensual police-citizen

encounter may mature into a seizure of the person.

A-22

While many of the circumstances in this case point in

the direction of a consensual police-citizen

encounter, one circumstance reflects a distinct

departure from the typical consensual

encounter--Officer Wright's retention of Daniel's

identification to run a computer warrants check.

Without his identification, Daniel was effectively

immobilized. Abandoning one's identification is

simply not a practical or realistic option for a

reasonable person in modern society. Royer, 460 U.S.

at 501-02, 103 S. Ct. at 1326; United States v.

Jordan, 294 U.S. App. D.C. 227, 958 F.2d 1085,

1087 (D.C. Cir. 1992). Contrary to the State's

assertion, when an officer retains a person's

identification for the purpose of running a computer

check for outstanding warrants, no reasonable person

would believe that he or she could simply terminate

the encounter by asking the officer to return the

identification. Accordingly, we hold that a seizure

within the meaning of the Fourth Amendment and

Article 1, section 7 occurred when Officer Wright

retained Daniel's identification to run a computer

warrants check.

Id. at 427; see also Piggott v. Commonwealth, 34 Va. App. 45, 537

S.E.2d 618, 619 (Va. Ct. App. 2000) ("By retaining Piggott's

identification, Detective Langford implicitly commanded Piggott to

stay.”); State v. Thomas, 91 Wn. App. 195, 955 P.2d 420, 423 (Wash.

Ct. App. 1998) ("Once an officer retains the suspect's identification or

driver's license and takes it with him to conduct a warrants check, a

seizure within the meaning of the Fourth Amendment has occurred.").

Certainly, the dangers posed by crimes such as identity theft and the

ever-present threats to our national security make the act of identifying

oneself through presentation of valid, government-issued identification

a necessary part of a panoply of human endeavors, from cashing a

check to boarding an airplane. Thus, the notion that a "reasonable

person" would feel free to end his encounter with the police and risk

abandoning his identification is somewhat vulnerable to honest

intellectual challenge and discourse. However, by Florida

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constitutional mandate we are not free to follow the interpretive path

of those other states and must be firmly tied to the interpretive

construct of our United States Supreme Court decisions.

We recognize that the detailed review of federal Fourth

Amendment jurisprudence from the United States Supreme Court that

has occasioned our consideration of the instant matter Jeads to the

inexorable conclusion that the hypothetical "reasonable person" carries

a heavy, and at times perhaps even an intellectually debatable undue

burden, in ensuring his or her individual liberties. In interpreting the

scope of the Fourth Amendment, courts appear to have steadily

increased expectations that the "reasonable person" is one who not only

knows the full extent of his rights, but zealously protects them to the

point that he will not hesitate to confront authority and demand the

return of identification so that he may effect his right to walk away.

Accordingly, one may reasonably inquire whether the "reasonable

person" standard has in reality become the "reasonable person trained

in the law" standard. Indeed, if reasonable members of the public were

asked whether they believed that they could terminate an encounter

with a law enforcement officer by simply insisting that the officer

return their license or identification, we suggest most would respond

in the negative. It is not unreasonable to think that only those versed in

search and seizure law may fully understand that the ability of an

officer to conduct an identification check is totally contingent upon the

civilian’s consent to the encounter where no reasonable suspicion of

wrongdoing exists.

However, even in light of such legitimate concerns, the

reasoning and result reached by the trial court and district court below

are well supported by the totality of the facts of the instant matter and

in accordance with the appropriate totality of the circumstances

analysis and approach. The decisions likewise reflect the

considerations addressed by numerous federal courts in applying the

reasonable person standard to similar factual scenarios and the

decisions of our High Court. Finally, we note that district courts inthis

state have considered cases analogous to this and have reached similar

outcomes. See State v. Robinson. 740 So. 2d 9 (Fla. Ist DCA 1999)

(determining that police officer's contact with Robinson. which

included the officer retaining Robinson's identification for the purpose

A-24

of running a warrants check, constituted nothing more than a routine

police-citizen consensual encounter); State v. Chang, 668 So. 2d 207

(Fla. lst DCA 1996) (concluding that running a warrants check on the

identification of a man standing in front of a house known for drug

trafficking in the company of another man who discarded a manila

envelope constituted a consensual encounter between a police officer

and a citizen). In summary, having considered the totality of the

circumstances, we hold that the interaction between Golphin and

Officer Doemer constituted a consensual encounter. Therefore, Fourth

Amendment constitutional safeguards were not implicated when

Officer Doemer utilized the identification that Golphin voluntarily

provided to check for outstanding warrants.

THE APPLICATION OF STATE v. FRIERSON

In addition to the foregoing conclusion that the encounter was

consensual, we further hold that even if the encounter had constituted

a seizure, suppression of the evidence discovered during the search of

Golphin would not have been required. The United States Supreme

Court has stated that not "all evidence is ‘fruit of the poisonous tree’

simply because it would not have come to light but for the illegal

actions of the police." Wong Sun v. United States, 371 U.S. 471,

487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Rather, the High Court

has concluded that in such a situation, the issue to be determined is

"whether, granting establishment of the primary illegality, the evidence

to which instant objection 1s made has been come at by exploitation of

that illegality or instead by means sufficiently distinguishable to be

purged of the primary taint." Id. at 488. In State v. Frierson, 926 So. 2d

1139 (Fla. 2006), we held that "[t]o properly undertake the inquiry

mandated by Wong Sun, we must consider three factors: "(1) the time

elapsed between the illegality and the acquisition of the evidence; (2)

the presence of intervening circumstances; and (3) the purpose and

flagrancy of the official misconduct." Id. at 1143 (quoting United

States v. Green, 1] 1 F.3d 515, 521 (7th Cir. 1997), wherein the United

States Circuit Court of Appeals for the Seventh Circuit relied on the

factors explicitly noted in Brown vy. Illinois, 422 U.S. 590, 603-04,

(1975)).

In Frierson, an officer stopped Frierson's vehicle for a cracked

taillight and failure to use a turn signal. See id. at 1141. A subsequent

identification check indicated that there was an outstanding warrant in

Frierson's name. See id.'’ The search incident to arrest revealed a

firearm, and Frierson was charged with being a convicted felon in

possession of a firearm. See id. We applied the factors announced in

Green and ultimately concluded that the firearm did not need to be

suppressed even though the initial stop of Frierson was invalid:

The brief amount of time that elapsed between the

illegal stop and the arrest of respondent weighs against

finding the search attenuated, but this factor 1s not

dispositive. In turning to the next factor, the

outstanding arrest warrant was an_ intervenimmg

circumstance that weighs in favor of the firearm found

in a search incident to the outstanding arrest warrant

being sufficiently distinguishable from the illegal stop

to be purged of the "primary taint" of the illegal stop.

Crucially, the search was incident to the outstanding

warrant and not incident to the illegal stop. The

outstanding arrest warrant was a judici-l order

directing the arrest of respondent whenever the

respondent was located. As Judge Gross noted, "A

warrant indicates the existence of criminal conduct

separate from the conduct that occurred at the time of

the illegal traffic stop.” The illegality of the stop does

not affect the continuing required enforcement of the

court's order that respondent be arrested.

We believe to be very significant the third

factor in the Brown analysis, which is whether the

purpose and flagrancy of the official misconduct in

'' It was later determined that Frierson himself had no

outstanding warrants. but "[s]omeone other than the defendant was

issued a notice to appear in the other case and wrongfully gave the

issuing officer the defendant's name and date of birth.” Id.

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BEST AVAILABLE COPY

making the illegal stop outweighs the intervening

cause of the outstanding arrest warrant so that the taint

of the illegal stop is so onerous that any evidence

discovered following the stop must be suppressed. In

this case, we do not find that the purpose and

flagrancy of misconduct in illegally stopping

respondent was such that the taint of the illegal stop

required that the evidence seized incident to the

outstanding arrest warrant should be suppressed. The

law enforcement officer made a mistake in respect to

the enforcement of the traffic law, but there was no

evidence that the stop was pretextual or in bad faith.

Id. at 1144-45 (citation omitted).

The application of the three-part test announced in Frierson

to the facts of the instant case compels the conclusion that,.even if —

‘Golphin was seized when Officer Doemer retained the identification

which Golphin voluntarily provided, the evidence discovered as a

result of the subsequent search would not need to be suppre-sed.

Although it appears from the record that only a brief period of time

elapsed between the initial encounter with Golphin and the discovery

of the drugs and paraphernalia (a factor that weighs against finding the

search attenuated), the warrant that was discovered by Officer Doemer

constituted "a judicial order directing the arrest of [the defendant]

wherever [he] was located." Id. at 1144. Upon discovery ‘of the

warrant, Officer Doemer had an indisputable obligation to enforce that

court order. Accordingly, itis evident under these facts that the search

was incident to the arrest, not to the preceding encounter between

Golphin and Officer Doemer. We further note that the United States

Supreme Court has held that searches incident to a lawful arrest are

constitutionally permissible and reasonable under the Fourth

Amendment. See United States v. Robinson, 414 U.S. 218, 235, 94S.

Ct. 467, 38 L. Ed. 2d 427 (1973) ("It is the fact of the lawful arrest

which establishes the authority to search, and we hold that in the case

of a lawful custodial arrest a full search of the person is not only an

exception to the warrant requirement of the Fourth Amendment, but

is also a ‘reasonable’ search under that Amendment.").

With regard to the third prong of the Frierson analysis, we

conclude that even if a seizure of Golphin had occurred, the officers’

misconduct did not "“outweigh[] the intervening cause of the

outstanding arrest warrant so that the taint of the illegal stop ts so

onerous that any evidence discovered following the stop must be

suppressed.” 926 So. 2d at 1144. In denying Golphin's motion to

suppress, the trial court found:

It is clear that the main officer that dealt with Mr.

Golphin was Officer Doemer, who testified that there

were no lights, no sirens, no weapons drawn, the

defendant was not instructed to stop, and also

indicated the casual conversation, hey, guy, what's

up, what are you doing here, do you live here, asking

for identification and the identification being freely

produced.

Moreover, during the suppression hearing, Officer Deschamps

testified that she and Officer Doemer had been dispatched to conduct

field interviews while patrolling the Ridgewood area of Daytona

Beach. Thus, it was part of the officers’ official duties that night to

approach individuals, speak with them, and attempt to obtain

information about them, and there is no evidence to indicate that the

officers were operating with any malice or bad faith when they

approached Golphin. Indeed, the officers’ conduct in approaching

Golphin (a pedestrian) and retaining his identification was no more,

and quite possibly was less, egregious than the conduct of the officers

in Frierson, who stopped an automobile for invalid reasons and then

retained the defendant's driver's license to check for outstanding

warrants. We conclude that whatever official misconduct occurred in

the instant case was neither purposeful nor flagrant. Therefore, the

third prong of the Frierson analysis would not compel suppression of

the evidence discovered during the search of Golphin. See 926 So. 2d

at 1144.

In light of the foregoing. we conclude that even if a seizure

had occurred in the instant case, suppression of the evidence

discovered during the subsequent search of Golphin was not required

because the search was incident to hts arrest on the outstanding

A-28

warrant, and there was no evidence of bad faith on the part of the

officers. See id. at 1143.

CONCLUSION

For the foregoing reasons, we hold that that in light of the

totality of the circumstances presented in this case, Golphin's

encounter with police was consensual, and this otherwise consensual

encounter did not mature into a seizure simply because the police

retained Golphin's identification which he had consensually and

voluntarily produced for the purpose of conducting the computerized

check for warrants in his presence at that location. The discovery of

Golphin's outstanding arrest warrant, arrest, and subsequent search

incident to that arrest were not the fruits of an illicit seizure. We

therefore approve the decision of the Fifth District below which

affirmed the trial court's denial of Golphin's motion to suppress.

It ts so ordered.

LEWIS, C.J., and WELLS and BELL, JJ., concur.

CANTERO, J., specially concurs with an opinion, in which WELLS,

J., concurs.

PARIENTE, J., concurs in result only with an opinion, in which

ANSTEAD and QUINCE, JJ., concur.

CANTERO, J., specially concurring.

I agree with the majority that the totality of the circumstances

in this case demonstrate that Golphin was not seized when a police

officer held his identification and conducted a brief check for

outstanding warrants. I also agree with the majority's application of

our recent decision in State v. Frierson, 926 So. 2d 1139 (Fla. 2006),

and its conclusion that, even if the encounter in this case constituted

a seizure, suppression of the evidence discovered during the search

was not required. I write scparatcly because, unlike the majority, I

believe that our conclusion that Golphin was not seized finds strong

precedential support in Lightbourne v. State, 438 So. 2d 380 (Fla.

1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1330, 79 L. Ed. 2d 725

(1984). The district court in this case, in holding that the defendant

A-29

consented to the encounter with the police and voluntanly

relinquished his identification, cited Lightbourne as "controlling."

Golphin v. State, 838 So. 2d 705, 706 & n.2 (Fla. 5th DCA 2003). I

agree. In that case, under similar circumstances, we held that a

defendant was not seized when he voluntarily relinquished his

identification to a police officer who approached his parked car.

In the analysis that follows, I (A) summarize Lightbourne, and (B)

explain how similar the circumstances are to those in this case.

A. Lightbourne

In Lightbourne. a police officer approached a parked car that

was brought to his attention through "a citizen complaint, motivated

by a concern that the [occupant] might be in need of assistance." 438

So. 2d at 388. The officer found the defendant sitting awake in the car.

After asking a few questions, the officer requested identification,

which the defendant voluntarily relinquished. While the defendant

remained inside his car, the officer took the license to his patrol car to

check for outstanding warrants. Upon returning to the defendant's car,

observing the defendant's "furtive movements and nervous

appearance,” the officer removed him from the car and searched him

for weapons. Id. at 388-89.

The defendant claimed he had been unreasonably seized in

violation of his Fourth Amendment rights. Although we

acknowledged that when the officer approached the defendant he "had

no probable cause or well-founded suspicion that the defendant was

about to commit or had committed any crime,” id. at 387, we held that

the defendant consented to the identification check, which meant that

"no showing of founded suspicion was required to justify the

encounter.” Id. at 388 (citing State v. Rawlings, 391 So. 2d 269 (Fla.

4th DCA 1981)). We reasoned as follows:

Officer McGowan's investigation of the suspicious

vehicle in this case does not rise to the level of an

unconstitutional stop or seizure. Officer McGowan

simply approached the parked car, asked defendant a

few simple questions as to the reason for his presence

A-30

there, his current address, and then ran a routine

check on the defendant's car and identification.

Surely the average, reasonable person, under similar

circumstances, would not find the officer's actions

unduly harsh. There is nothing in the record that

would indicate that prior to defendant voluntarily

relinquishing his driver's license to Officer

McGowan he was not free to express an alternative

wish to go on his way.

Id. at 387-88. We quoted a district court opinion holding that "mere

contact between a citizen and a police officer which evokes voluntary

cooperation on the part of the citizen is not a ‘seizure’ within the

meaning of the Fourth Amendment.” Id. at 388 (quoting Rawlings,

391 So. 2d at 270) (emphasis added). We then held that "no ‘stop’ or

‘seizure’ of the defendant within the meaning of Terry and its progeny

occurred prior to [the defendant's] removal from the car .. . to conduct

the pat-down search." Id. at 388. Thus, Lightbourne was based on the

voluntary nature of the encounter. We unambiguously held that the

defendant was not seized when the officer checked the defendant's

identification in his patrol car while the defendant waited in his car.’

Because the encounter in Lightbourne began with an officer

"investigating a suspicious car" and eventually matured to the point

where the defendant was removed from the car based on his "furtive

'2 We recently decided another case involving ‘similar

circumstances. See State v. Baez, 894 So. 2d 115 (Fla. 2004): In that

case, an officer approached a van parked near an abandoned warehouse

at night, requested the occupant's identification, and took it to his

police car to check for outstanding warrants. None of the opinions in

Baez, however, garnered a majority. The plurality of three concluded

that the officer had reasonable suspicion of criminal activity to justify

the identification check. Id. at 117. Justice Wells, who joined the

plurality opinion, also filed a concurring opinion, in which Justice Bell

concurred, which argued that under Lightbourne the encounter would

have been justified as consensual. Id. at 119-20(Wells, J., concurring).

A-3]

movements and nervous appearance," id. at 387-88, some courts have

interpreted that case as one resting entirely on reasonable suspicion.

See State v. Taylor, 826 So. 2d 399, 405 n.8 (Fla. 3d DCA 2002)

(suggesting that Lightbourne “involve[d] an officer responding to a

call about suspicious or criminal activity that, when coupled with the

officer's observations, could create the requisite degree of reasonable

suspicion"); Baez v. State, 814 So. 2d 1149, 1152 & n.1 (Fla. 4th

DCA 2002) (distinguishing Lightbourne as a case involving a

"suspicious activity" rather than consent, but conceding that "we may

be wrong in our interpretation"), quashed, 894 So. 2d 115 (Fla. 2004).

Most courts, however, recognizing that the initial encounter, and the

relinquishment of the license, were consensual, have interpreted it as

a consent case. See, e.g., Chappell v. State, 838 So. 2d 645, 647 (Fla.

Sth DCA 2003) (holding under Lightboure that "the officers asking

Chappell for identification and running a check did not change the

encounter into a detention"); State v. Chang, 668 So. 2d 207, 209 (Fla.

Ist DCA 1996) (holding under Lightbourne that an officer's “asking

for identification, receiving Chang's driver's license. and running a

check for warrants" was "nothing more than a _ consensual

encounter").'*] agree that this is the correct interpretation. The

encounter with police, and specifically the relinquishment of

identification, were consensual.

'* Additional examples of courts reading Lightbourne as

involving consent include Lanier v. State, 936 So. 2d 1158 (Fla. 2d

DCA 2006); Johnson v. State, 785 So. 2d 1224, 1228 (Fla. 4th DCA

2001): State v. Collins, 661 So. 2d 962. 964 (Fla. 5th DCA 1995); State

v. DeCosey. 596 So. 2d 149, 150 (Fla. 2d DCA1992): State v. Wilson,

566 So. 2d 585, 587 (Fla. 2d DCA 1990): Hill v. State, 561 So. 2d

1245, 1247 (Fla. 2d DCA 1990): .C.W. v. State. 545 So. 2d 306, 307

(Fla. Ist DCA 1989); Daniels v. State, 543 So. 2d 363, 366 n.3 (Fla. Ist

DCA 1989): McLane v. Rose, 537 So. 2d 652, 654 (Fla. 2d DCA

1989): State v. Lamb. 484 So. 2d 1368, 1369 (Fla. 2d DCA 1986): and

Davis v. State. 461 So. 2d 1361, 1362-63 (Fla. 2d DCA 1985).

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B. Applying Lightbourne

The circumstances of this case are similar. The defendant was

standing on a sidewalk among a group of men. When police officers

approached, some of them walked away. The defendant stayed. One

of the officers asked for his identification, which he relinquished. The

officer then ran a warrants check, "which took no more than a couple

of minutes." Golphin, 838 So. 2d at 706. While waiting for the results,

the defendant warned the officer "that he had a history 6f arrests and

that he probably had an ‘open warrant." Id. He was right and was

arrested. Now he claims that the identification check constituted an

unreasonable seizure in violation of his Fourth Amendment rights.

While I recognize that "in order to determine whether a

particular encounter constitutes a seizure, a court must consider all the

circumstances surrounding the encounter" rather than rely on per se

rules, Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382,'115 L.

Ed. 2d 389 (1991), the circumstances in this case are so similar to

those in Lightbourne that we could not hold in the defendant's favor

without either receding from that case or creating an inconsistency in

the law. In fact, in Lightbourne the officer's conduct came closer to a

Fourth Amendment violation than the conduct at issue here. There, the

officer returned to his patrol car to check for warrants, whereas in this

case the officer "apparently without moving away [from Golphin]

simply commenced a computer check for outstanding warrants."

Majority op. at 3. The check lasted only two minutes, during which

Golphin spoke with the officer. Moreover, because Golphin was

standing on the street instead of driving a car, he could have walked

away without his identification, thus feeling more freedom to end the

encounter than the defendant in Lightbourne, who needed his license

to drive away lawfully. Under the totality of the circumstances,

therefore, the encounter in this case was even less coercive than the

one in Lightbourne. A holding that this defendant was seized while

the defendant in Lightbourne was not would create confusion and

inconsistency in our Fourth Amendment law.

Although the United States Supreme Court has explained that

"a totality of the circumstances approach may render appellate review

less circumscribed by precedent than otherwise,” United States v.

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Arvizu, 534 U.S. 266, 276, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002),

some degree of deference to relevant precedent remains prudent. We

have an obligation not only to the lower courts, but also to Florida

citizens and Jaw enforcement officers to maintain consistency and

predictability in our Fourth Amendment jurisprudence. While every

police encounter will involve slightly different circumstances, not

every difference is constitutionally significant.

C. Conclusion

Unlike either the majority, see majority op. at 6 n.2; or the

concur-in-result only op. at 48 (Pariente. J.), 1 believe that our

decision in Lightbourne controls the outcome, or at least, given the

similarity of the circumstances, that it has great persuasive force. We

should rely on Lightbourne in rejecting Golphin's Fourth Amendment

claim.

WELLS, J., concurs.

PARIENTE, J. concurring in result only.

I agree with the majority that the evidence need not be

suppressed. The majority addresses two issues: whether Golphin was

illegally detained and, if so. whether our recent decision in State v.

Frierson, 926 So. 2d 1139 (Fla. 2006). controls. I concur in result only

because | disagree with the majority's conclusion that this was a

consensual encounter. Once the officer retained Golphin's

identification to run a warrants check, Golphin was unlawfully

detained in violation of the Fourth Amendment. Nevertheless. because

of the existence of the outstanding warrant and no evidence of bad

faith on the part of law enforcement, Frierson controls. '

Golphin was lawfully on the street, exhibiting no behavior

justifying detention, when he was approached by an officer and asked

for identification. When the officer retained the identification to

'* | dissented in Frierson but acknowledge that it controls in

this case.

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conduct a warrants check, a reasonable person in Golphin's position

would not have felt free to request the return of his identification or

to walk away from the officer without identification in hand. |

conclude that when the officer unilaterally retained Golphin's

identification in order to conduct a warrants check, the consensual

encounter became a detention. Because there was no reasonable,

founded suspicion to detain Golphin pending the outcome of the

warrants check, Golphin was } eee to an unlawful Fourth

Amendment seizure.

Initially, I note that the majority wisely declines to hold as a

matter of law that whenever a citizen voluntarily relinquishes his or

her identification card to a police officer, the officer may retain it to

conduct a warrants check without triggering the protections of the

Fourth Amendment. That holding would be inconsistent with Florida

v. Royer, 460 U.S. 491, 503, 103 S. Ct. 1319, 75 L. Ed. 24229 (1983),

in which agents' act of retaining an airline passenger's driver's license

and ticket contributed to the Court's conclusion that the person was in

effect under arrest for purposes of determining whether the consent to

search was voluntary. Rather, the Court's determination today that no

detention: occurred is fact specific, relying on the totality of the

circumstances including the officer's act of retaining Golphin's

identification card. '°

As stated in United States v. Jordan, 294 U.S. App. D.C. 227,

958 F.2d 1085, 1087 (D.C. Cir. 1992), the totality of the

circumstances test "does not mean that each and every circumstance

in the case must be assumed to have the same degree of relevance and

weight." There are times when one circumstance among the totality

converts what would otherwise be a consensual encounter into a

detention. Here the officer testified that she held Golphin's

identification "while teletype had his name," and in fact never

returned the identification because the warrants check resulted in

'* | agree with the majority's determination that because the

argument was not made below, we should not address whether

Golphin’s act of relinquishing his identification constituted consent to

the officer retaining the identification for a warrants check.

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Golphin being taken into custody. When an identification is retained

under those circumstances, no reasonable person would believe that

he or she could simply terminate the encounter by asking the officer

to return the government-issued identification or by walking away

without having regained possession of this important document.

Our assessment of whether Golphin was seized when the

officer retained his identification is guided by United States Supreme

Court precedent. The majority discusses that Court's decisions

concerning searches of bus and airline passengers, as well as cases

focusing on the authority of police officers to demand identification

from individuals who have been detained. As noted above, in Royer

the officers retained the driver's license and ticket of the airline

passenger defendant, which along with other circumstances led the

Court to conclude that consent to search was obtained during a de

facto arrest without probable cause, making its fruits inadmissible. See

460 U.S. at 504 ("[B]y returning his ticket and driver's license, and

informing him that he was free to go if he so desired, the officers may

have obviated any claim that the encounter was anything but a

consensual matter from start to finish.”). The Court distinguished

United States v. Mendenhall, 446 U.S. 544, 558, 100 S. Ct. 1870, 64

L. Ed. 2d 497 (1980), in which it upheld a consent search during an

encounter in which officers examined and returned another airline

passenger's license and ticket. See Royer, 460 U.S. at 504 n.9 ("The

case before us differs in important respects. Here, Royer's ticket and

identification remained in the possession of the officers throughout

the encounter, the officers also seized and had possession of his

luggage."). In Florida v. Bostick, 501 U.S. 429, 431, 111 S. Ct. 2382,

115 L. Ed. 2d 389 (1991), the Court approved the admission of

evidence obtained in a search of a bus passenger pursuant to consent

after the passenger's identification and ticket were "were immediately

returned to him as unremarkable.”

In each of those cases, the Court took into account whether

officers kept or returned the defendant's identification in assessing

whether, under the totality of the circumstances, the defendant had

been detained. Although the Court did not assign any particular

weight to this circumstance, | believe it is critical in this case because

of the necessity of having government-issued identification to

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navigate contemporary American life. The use of government-issued

photo identification has only grown in the years since Bostick, Royer,

and Mendenhall were decided. As one commentator has noted, the

state driver's license is

the most commonly requested form of verification in

industries ranging from banks, to nightclubs and

liquor stores, to trains, planes, and rental cars. In fact,

it would be difficult to cash checks, enter secured

areas, or even purchase alcohol without a driver's

license. In this way, it has become the form of

identification upon which Americans most often’

depend.

Neda Matar, Are You Ready for a National ID Card? Perhaps We

Don't Have to Choose Between Fear of Terrorism and Need for

Privacy, 17 Emory Intl L. Rev. 287, 321 (2003); see also Maria Pabon

Lopez, More Than a License to Drive: State Restrictions on the Use

of Driver's Licenses by Noncitizens, 29 S. Ill. U. L.J. 91, 109

(2004-2005) (noting that drivers’ licenses are now used for many

purposes "tied to verifying identity--from obtaining a library card to

cashing a check").’®

Because this case does not concer a request that a defendant

already under detention identify himself, the line of United States

Supreme Court cases concerning requests for identification under

"stop and identify" statutes is not controlling here. See Hiibel v, Sixth

Judicial District Court of Nevada, 542 U.S. 177, 1248. Ct. 2451, 159

L. Ed. 2d 292 (2004); Kolender v. Lawson, 461 U.S. 352, 103 S. Ct.

1855, 75 L. Ed. 2d 903 (1983); Brown v. Texas, 443 U.S. 47, 99S. Ct.

'° The societal importance of government-issued photographic

identification is underscored by the recent enactment of federal

legislation intended to toughen and standardize the requirements for

obtaining such identification, as an anti-terrorism measure. See

Emergency Supplemental Appropriations Act for Defense, the Global

War on Terror, and Tsunami Relief, 2005, Pub. L. 109-13, div. B, tit.

II, § 201-02, 119 Stat. 231, 311-15 (2005).

A-37

2637, 61 L. Ed. 2d 357 (1979). Florida has a similar statute

authorizing officers to ascertain a person's identity during a lawful

detention, see section 901.151(2), Florida Statutes (2006), but it is not

implicated in this case because there was no reasonable. articulable

suspicion of criminal activity. Thus, we are not precluded from

considering decisions from other jurisdictions by the conformity

clause in article 1, section 12 of the Florida Constitution, which

requires that constitutional search-and-seizure issues be decided in

accord with United Statutes Supreme Court precedent construing the

Fourth Amendment. See art. I, § 12. Fla. Const.

Further, as the majority recognizes, neither our plurality

decision in State v. Baez, 894 So. 2d 115 (Fla. 2004), nor the Court's

decision in Lightbourne v. State, 438 So. 2d 380 (Fla. 1983). controls

here. See majority op. at 5 n.2. Baez involved suspicious

circumstances not present in this case. See 894 So. 2d at 117 (holding

that where defendant was found slumped over wheel of his van ina

dimly lit warehouse area at night, officer "had sufficient cause to

further investigate by conducting a computer check based on Baez's

suspicious behavior"). Lightbourne focused on whether the defendant

was detained at the point that he gave the police officer his driver's

license, which is not the issue here. See 438 So. 2d at 388 ("There is

nothing in the record that would indicate that prior to defendant

voluntarily relinquishing his driver's license to Officer McGowan he

was not free to express an alternative wish to go on his way."). "”

'’ Because Lightbourne was decided in an earlier stage in the

development of our Fourth Amendment jurisprudence and does not

accurately reflect the current state of the law, | would go further and

recede from it. "The doctrine of stare decisis must bend when there has

been a significant change in circumstances since the adoption of the

legal rule.” Weiand v. State. 732 So. 2d 1044. 1055 n.12 (Fla. 1999).

I noted in my dissenting opinion in Baez that tn its discussion of this

issue, one of several in a capital appeal, the Court in Lightbourne did

not apply the distinction between consensual encounters and detentions

that we later articulated when we focused exclusively on the issue in

Popple v. State, 626 So. 2d 185, 186-88 (Fla. 1993). See Baez. 894 So.

2d at 122 (Pariente. C.J.. dissenting). The tension between Lightbourne

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Thus, the issue we address in this case, whether a pedestrian in a

public area is detained when a police officer retains his or her license

for a warrants check, is not governed by any applicable precedent

from this Court.

Appellate courts in other jurisdictions that have faced this

issue under similar facts have held that retaining an individual's

identification for a warrants check transforms a street encounter into

a detention. In State v. Daniel, 12 S.W.3d 420, 428 (Tenn. 2000), the

Tennessee Supreme Court, applying the Fourth Amendment's

totality-of-the-circumstances test, so held without addressing whether

the officer left the defendant's presence to run the warrants check. The

court directly addressed the dilemma faced by individuals placed in

this situation: .

[W]hat begins as a consensual police-citizen

encounter may mature into a seizure of the person..

While many of the circumstances in this case point in

the direction of a consensual police-citizen

encounter, one circumstance reflects a distinct

departure from the typical consensual

encounter--Officer Wright's retention of Daniel's

identification to run a computer warrants check.

Without his identification, Daniel was effectively

immobilized. Abandoning one's identification is

simply not a practical or realistic option for a

reasonable person in modern society. Contrary to the

State's assertion, when an officer retains a person's

identification for the purpose of running a computer

check for outstanding warrants, no reasonable person

would believe that he or she could simply terminate

and the law as reflected in our subsequent decision in Popple is

reflected in the district courts’ inconsistent interpretations of

Lightboume set out in Justice Cantero's specially concurring opinion.

Clearly, Lightbourne has become an impediment to clarity and

predictability in this state’s Fourth Amendment jurisprudence.

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the encounter by asking the officer to return the

identification.

12 S.W.3d at 427 (citations omitted).

In People v. Mitchell, 355 Ill. App. 3d 1030, 824 N.E.2d 642,

644, 291 Ill. Dec. 786 (Ill. App. Ct.). appeal denied. 833 N.E.2d 7 (Ill.

2005), the officer took the license he had obtained from the defendant

, $treet encounter to his police car to run a warrants check. The

a, ,ellate court concluded that "a reasonable person in Mitchell's

position would not have felt free to approach the squad car, knock on

the window, and demand the immediate return of his identification. A

reasonable person would have stood right where the police had left

him and waited for them to return his identification." Id. at 647.

Similarly, in Salt Lake City v. Ray, 2000 UT App 55, 998 P.2d 274,

276 (Utah Ct. App. 2000), an officer requested identification during

an encounter with the defendant outside a convenience store and then

stepped away from her to conduct the warrants check on a portable

radio. The appellate court held that in moving away from the

defendant while retaining the license. the officer escalated a

permissive encounter into a detention without a reasonable suspicion

of criminal activity. See id. at 278-81; see_also State v. Markland,

2005 UT 26, 112 P.3d 507 (Utah 2005) (assuming that officer's act of

retaining defendant's license for warrants check during street

encounter resulted in a detention); Commonwealth v. Morton, No.

0497-00-2, 2000 WL 949489, at *5 (Va. Ct. App. July 11. 2000)

(holding that officer who asked for and received identification card

and stuck it in his belt while continuing investigation detained

defendant).

Courts have also found that defendants encountered in or

around parked cars, and passengers encountered during traffic stops,

were detained when officers retained their licenses to conduct

warrants checks. See United States v. Chan-Jimenez, 125 F.3d 1324,

1326 (9th Cir. 1997) (holding that officer who received identification

and registravion of driver of truck pulled to roadside with hood raised

seized defendant within the meaning of the Fourth Amendment when

he asked to look in bed of truck without returning documents); Piggott

v. Commonwealth, 34 Va. App. 45, 537 S.F.2d618, 619(Va. Ct. App.

A-40

2000) (holding that by retaining identification of automobile

passenger during warrants check, officer detained defendant); State v.

Thomas, 91 Wn. App. 195, 955 P.2d 420, 423 (Wash. Ct. App..1998)

(concluding that when officer took license of defendant sitting in

parked car to the rear of the car to conduct a warrants check, "a

seizure within the meaning of the Fourth Amendment... occurred").

‘In all of these cases, the courts grounded their decisions in the Fourth

Amendment's guarantee against unreasonable searches and seizures,

including the distinction between consensual encounters and

detentions as well as the totality of the circumstances test for

determining whether the defendant was detained.

. In accord with the out of state precedent, as well as the Fourth

District Court of Appeal decision in Perko v. State, 874 So: 2d 666,

667 (Fla. 4th DCA 2004), dismissed as moot, 894 So. 2d 972 (Fla.

2005), I conclude that Golphin was seized within the meaning of the

Fourth Amendment when the officer retained his license to call in a

warrants check on her portable radio. In Perko, the district court ruled

that the fruits of a consent search obtained while an officer was

holding Perko's driver's license for a warrants check were

inadmissible. See 874 So. 2d at 666-67. Although the Fourth District

relied in part on its decision in Baez, which was later overturned by

this Court, Perko is distinguishable from Baez because it lacks any

mention of suspicious circumstances justifying investigative

detention.

Under analogous circumstances, we have found a Fourth

Amendment violation where a law enforcement officer extended a

traffic stop past the point that reasonable suspicion dissolves by then

obtaining additional information that led to the driver's arrest. See

State v. Diaz, 850 So. 2d 435, 439-40 (Fla. 2003). We relied on

precedent holding that after the legitimate purpose of a traffic stop has

been accomplished, an officer may not extend the detention by

obtaining the driver's license and registration. See id. at 439.

Consistent with Diaz, we should not allow a law enforcement officer

to transform a consensual street encounter into a detention by

retaining an identification for the same purpose. In ruling to the

contrary, we are sending the confusing message to law enforcement

officers that they may conduct nearly unconstrained warrants checks

A-4]

on pedestrians but are precluded from conducting suspicionless

license checks on motorists.

The majority acknowledges Diaz and recognizes that "the

exhibition of unqualified police discretion in the context of a

consensual encounter is likewise troublesome." Majority op. at 15n.7.

But in reaching a conclusion that I consider inconsistent with Diaz,

the majority places too much reliance on the fact that the officer never

left Golphin's company during the warrants check. Although relevant,

this fact does not change the conclusion that no reasonable person

would believe he is free to leave when the police retain

government-issued identification. The difficulty in secunng the return

of an identification from an officer who has retreated to a closed

police vehicle may contribute to the defendant's sense of being

detained. see. e.g.. Mitchell, Thomas. but so too might the officer's act

of remaining in the defendant's presence, which might have

discouraged the defendant from believing he could simply walk away

unchallenged. Contrary to the conclusion of the Fourth Circuit in

United States v. Analla, 975 F.2d 119, 124 (4th Cir. 1992), on which

the majority relies, no reasonable person would feel free to ask for the

return of an identification card from an officer almost immediately

after surrendering it. regardless of whether the officer is next to the

defendant or twenty feet away in a patrol car.'* As stated in Piggott,

an officer's act of retaining an individual's license is an “implicit[]

command]... to stay." 537 S.E.2d at 619.

Further, the answer to the question whether Golphin was

detained should not turn on whether he was about to engage in an

activity for which he might need his identification. Rather, in

determining whether a consensual encounter has become a detention,

the issue is whether the individual is constrained in exercising his

'* [also disagree with the assumption, implicit in Analla, that

whenever an officer consensually obtains a defendant's license, the

consent necessarily extends to the time needed to conduct a warrants

check. See 975 F.2d at 124 ("Parker necessarily had to keep Analla’s

license and registration for a short time in order to check it with the

dispatcher.").

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freedom of movement or association. See Terry v. Ohio, 392 U.S. 1,

19.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (stating that a seizure

occurs when an officer "has in some way restrained the liberty of a

citizen"). In a society in which official identification is necessary for

a myriad of activities, the defendant should not have to establish that

he or she will need the license or identification immediately following

the encounter with police.

Regarding the assertion that Golphin could simply have

walked into the apartment where he was staying, there is no testimony

that he was prepared to retire for the evening and no indication how

his identification might have been returned to him if he had: departed

the scene.'® Like the notion that an individual feels free to request the

return of identification relinquished to police, the suggestion that an

individual feels free to simply walk away from a police officer who

has the person's identification and is attempting to ascertain if grounds

exist to arrest the person for past conduct is a fiction divorced from

the realities of everyday life. The defendant's failure to request the

return of his identification under these circumstances is no more than

acquiescence to the officer's authority. Certainly, noreasonable person

would feel free to leave while a police officer holds his or her

identification.

The majority accurately acknowledges the "growing

disconnect between the evolution of the reasonable person standard

and the realities of modern society,” but I respectfully suggest that its

holding perpetuates that disconnect. I cannot reconcile the Court's

recognition that "presentation of government-issued identification [is]

a necessary part of human endeavors” with its assertion that Golphin

could “either request the return of his identification or simply end the

'? The record is unclear whether Golphin lived near the corner

where the encounter with the police occurred. Officers testified that

when asked, none of the persons they encountered said they lived in the

apartment complex on that corner, but Golphin testified that he was

standing in front of the small apartment building where he was staying

when encountered by police.

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encounter by walking into the apartment in which he was staying.”

The Fifth District Court of Appeal also stated that Golphin could

request the return of his license, leading Judge Klein of the Fourth

District to make the following response in Perko:

Our sister court, which uphelda search under

these circumstances, did so under the assumption that

a person can "withdraw his consent at any time by,

for example, asking that his license be immediately

returned.” Golphin v. State, 838 So. 2d 705, 707 (Fla.

Sth DCA 2003). This, of course, presupposes that the

person knows the law of search and seizure. I, for

one, despite my law school education, had no idea

there was such a thing as a consensual encounter

until | became a judge. Because police officers are, in

our society, charged with maintaining order and

enforcing the law, it would never have occurred to

me that I could insist on the return of my license

before the officer was finished with it. Nor would it

occur to any other person unversed in search and

seizure law.

As Professor LaFave has written "[i]t is

nothing more than fiction to say that all of these

subjects have consented to the confrontation." Wayne

R. LaFave, Search and Seizure-A Treatise on the

Fourth Amendment § 9.3(a), at 95-96 (3d ed. 1996).

874 So. 2d at 667 (Klein, J.. concurring specially) (alteration in

original).

Therefore, under the totality of the circumstances, and giving

due weight to the fact that the officer asked for Golphin's identification

and then retained it as a matter of course to conduct a warrants check,

| conclude that Golphin was detained without reasonable suspicion of

criminal activity. But for our decision in Frierson holding that

discovery of an active arrest warrant constitutes an attenuating

circumstance that dissipates the taint of the illegal stop under

circumstances analogous to this case, | would quash the decision below

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and remand with directions to reverse the trial court's denial of

Golphin's motion to suppress the evidence obtained as a result of this

illegal detention.

Finally, this case and others like it cause me grave concern

about our freedom as Americans to lawfully move about without

attracting the unwanted and coercive attention of the authorities.

Evidently, police officers in some jurisdictions view a warrants check.

as a routine feature of almost any citizen encounter. See, e.g., People

v. Bouser, 26 Cal. App. 4th 1280, 32 Cal.Rptr.2d 163, 164 (Cal. Ct.

App. 1994) (noting that during consensual encounter, officer used

information provided by defendant to run a records check, as was his

standard procedure); Mitchell, 824 N.E.2d at 644 (noting that officer

testified that "whenever he meets someone on the street, he runs a

warrant check on that individual”); Wilson v. State, 874 P.2d 215, 222

(Wyo. 1994) (noting that officer testified that his department's policy

is to conduct national and local warrants checks of everyone police

“contact” late at night). This practice essentially forces a citizen who

is not reasonably suspected of committing a crime to satisfy a police

officer that he or she has a right to walk the streets. What the Court

stated in Diaz in addressing the illegal-extension of a traffic stop rings

equally true here: "It would be dangerous precedent to allow

overzealous law enforcement officers to place in peril the principles of

a free society by disregarding the protections afforded by the Fourth

Amendment." 850 So. 2d at 439.”

?° one of the most disturbing features of suspicionless warrants

checks is that the intrusion tends to fall disproportionately on particular

ethnic and racial groups. A recent study of traffic stop practices of the

Miami-Dade Police Department revealed that "Blacks were more likely

than Whites or Hispanics to have their vehicles towed, to receive a pat

down search, or to have record checks conducted, either on them or

their vehicles." The Alpert Group, Miami-Dade Police’ Department

Racial Profiling Study, November 2004 (available at

http://www.miamidade.gov/comnylibrary/MDPD_Racial_Profiling_

Study.pdf) at vii (emphasis supplied).

A-45

An independent judiciary exists in large measure to prevent

this type of encroachment on our constitutional rights, of which none

is more fundamental than the “right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const., amend. [V. We must not shirk our duty in this

regard because in the end each new and seemingly small step we take

to accept limited government intrusion into our lives for the sake of

safety or security takes us slowly but surely away from our cherished

freedoms.

ANSTEAD and QUINCE, JJ., concur.

A-46

District Court of Appeal of Florida,

Fifth District

L@enzo GOLPHIN, Appellant.

Vv.

STATE of Florida, Appellee.

CASE NO. 5D02-1848

March 7, 2003

TORPY, J.

Appellant challenges the denial of his motion to suppress

based upon a purported violation of the prohibition against

unreasonable searches and seizures contained within the Florida and

United States constitutions. We affirm.

Appellant was standing with a group of about five men on a

public sidewalk in front of an apartment building when uniformed

Daytona Beach police officers approached. Although some of the

individuals walked away as police approached, Appellant made no

attempt to leave the area. One of the officers asked Appellant for his

identification, which he voluntarily relinquished. Using the

identification, the officer ran a computer check to determine whether

Appellant had any outstanding warrants. While waiting for the results

of the computer check, which took no more than a couple of minutes,

Appellant told the officer that he had a history of arrests and that he

probably had an “open warrant." In fact, the computer check revealed

that Appellant was the subject of an outstanding warrant, and he was

arrested. A search incident to arrest resulted in the discovery of drugs

and paraphernalia, which gave rise to the pending case.

The lower court found that the outstanding arrest warrant was

discovered as a result of a “consensual encounter" and, therefore,

denied Appellant's motion to suppress the contraband. Appellant,

citing Baez v. State, $14 So. 2d 1149 (Fla. 4th DCA 2002), rev.

B-|

granted, (Fla. Dec. 5, 2002), contends that the court erred. We write

to express our disagreement with the court's holding in Baez.

In Baez, the court held that an otherwise "consensual

encounter” becomes a "seizure" when an officer "retains" a person's

identification (after it was voluntarily surrendered to the officer) for

a sufficient length of time to complete a warrants check. Id. at 1152 -

53. This holding appears to create a bright-line rule that pertains

regardless of the circumstances. In announcing its decision, the Fourth

District Court acknowledged contrary authority from the First and

Second District Courts, which it dismissed as “dicta."’ Moreover, it

sought to factually distinguish decisions of the Florida Supreme Court

and United States Supreme Court which we believe are controlling.’

For the reasons stated herein, we declare conflict with the Fourth

District Court's holding in Baez.

In Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111

S. Ct. 2382 (1991), uniformed officers boarded a bus during a

'State v. Robinson. 740 So. 2d 9 (Fla. Ist DCA 1999); State v.

Chang, 668 So. 2d 207 (Fla. Ist DCA 1996): State v. Arnold, 475 So.

2d 301 (Fla. 2d DCA 1985).

* Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S.

Ct. 2382 (1991); Lightbourne v. State, 438 So. 2d 380 (Fla. 1983).

Baez also relied upon several federal decisions. First, United States v.

Jefferson, 906 F.2d 346 (8th Cir. 1990), which is factually very

different. There. the trooper refused a request by defendant to go tothe

bathroom. asked defendant to sit in the trooper's car, and the trooper sat

next to defendant in the trooper's car. Second, United States v.

Thompson, 712 F.2d 1356(1 1th Cir. 1983), which is distinguished on

its facts and has questionable vitality in light of Bostick and United

States v. De La Rosa, 922 F.2d 675 (11th Cir. 1991). Finally. United

States v. Jordan, 294 U.S. App. D.C. 227, 958 F.2d 1085 (D.C. Cir.

1992), which is, we submit, contrary to the Supreme Court's holdings

in Bostick and Florida v. Royer. 460 U.S. 491, 75 L. Ed. 2d 229, 103

S. Ct. 1319 (1983).

stopover and asked Bostick, a passenger, if they could see his

identification and bus ticket, which he voluntarily surrendered. After

noting that the names matched, the officers immediately returned the

items to him. However, the officers continued to converse with

Bostick explaining that they were narcotics agents in search of drugs.

They requested that Bostick consent toa search of his luggage, and he

agreed. The search revealed contraband resulting in Bostick's arrest.

In rejecting the Florida Supreme Court's application of a per

se rule, the Court held that the appropriate test for determining

whether a citizen encounter constitutes a Fourth Amendment seizure

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.” Id. at 437 (quoting Michigan v.

Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565, 108 S..Ct. 1975

(1988)). Under this analysis, said the Court, the encounter does not

"trigger Fourth Amendment scrutiny [until] it loses its consensual

nature.” Id. 501 U.S. at 434 (emphasis added). In other words, any

consent given must not be the product of "intimidation or harassment"

by police, as considered from the perspective of a reasonable person.

501 U.S. at 438.

The court in Baez attempted to distinguish Bostick by noting

that, in Bostick, the police immediately returned the identification

after confirming that it matched the name on the bus ticket, which was

the apparent purpose for which the police requested the identification.

Conversely, in Baez, like the instant case, the police held the

> The first issue in deciding any “consensual encounter" case

is whether the citizen gave actual consent, and, if so, the scope of the

consent given. This is a factual question. Jones v. State, 658 So. 2d

178 (Fla. Ist DCA 1995). Next, the court must determine whether the

consent was the result of intimidation by police, which must be

determined from the vantage point of a reasonable man, not based

upon actual, subjective fears of the involved citizen. State v. Baldwin,

686 So. 2d 682 (Fla. Ist DCA 1996) .

B-3

identification while they checked for warrants. We do not see why this

minor factual distinction should lead to a different legal conclusion.

Bostick tells us that the focus is on whether the police have

communicated something that would intimidate a reasonable person

into giving consent. Clearly, the request by police to see the citizen's

license (a fact common to Bostick, Baez and the instant case) does not

implicate the Fourth Amendment. Absent any further conduct by

police that causes the encounter to lose its "consensual nature,"

whether police keep the license long enough to compare it to a bus

ticket or for a few minutes to make a warrants check should not make

a difference for Fourth Amendment purposes. The citizen would be

free to withdraw his consent at any time by, for example, asking that

his license be immediately returned, and the refusal to comply by

police would certainly amount to a detention.

We have considered whether the mere retention of property

(in this case a license) by police might be tantamount to a “seizure,”

because the reasonable citizen might view the police conduct asa form

of intimidation. If this were the case, however, then consent searches,

such as that which was upheld in Bostick, could never pass Fourth

Amendment scrutiny, because the mere retention of the property for

sufficient time to perform a search by consent would constitute a per

se seizure. Rather, we think that when a citizen voluntarily

relinquishes possession of his property to police, reasonably implicit

in such consent is that the police will retain the property for the period

of time reasonably needed to accomplish the police purpose or until

the consent is withdrawn, whichever first occurs. Moreover, a

reasonable person, free from the guilt of criminal conduct, who

voluntarily turns his property over to police, should feel free to request

its return if he desires to go about his business. See State v. Luckay.

697 So. 2d 221 (Fla. Sth DCA 1997) (observing that a "reasonable

person” is one who is not guilty of criminal conduct).

In sum, we believe Baez to be wrongly decided first, because

it creates a per se rule, which the Supreme Court in Bostick rejected

in favor of the “totality of the circumstances” test. and second, because

it reaches what we believe to be the wrong conclusion when the proper

test 1s applied. See People v. Cole. 256 Il. App. 3d 590, 627 N.E.2d

1187, 194 Ill. Dec. 545 (Ul. App. Ct. 1994).

B-4

In applying the Bostick test to the instant case, we conclude

that the trial court properly denied the motion. The police behavior in

approaching the men obviously failed to communicate an intent to

restrict the men. Indeed, some of the men walked away from the police

without incident. There was no indication that police sought out

Appellant or threatened him or intimidated him in any way. Appellant

was fully cooperative and volunteered information about his arrest

history. Finally, Appellant did not manifest any desire to leave, nor did

he request that his identification be returned. The police

communicated nothing, by word or act, to lead Appellant to

reasonably conclude that he was not free to leave.

The trial judge found that Appellant consented to the

encounter with police, and we concur that Appellant's consent, when

all circumstances are considered, was not the product of intimidation

or harassment as viewed from the position of a reasonable person.

AFFIRMED.

PALMER, J., concurs.

GRIFFIN, J., concurs specially in result only, without opinion.

B-5

IN THE CIRCUIT COURT, SEVENTH

JUDICIAL CIRCUIT, IN AND FOR

VOLUSIA COUNTY, FLORIDA

CASE NO. 01-36100

STATE OF FLORIDA,

Plaintiff

V.

LORENZO GOLPHIN,

Defendant

ORDER

THIS CAUSE having come before the Court on Defendant’s

Motion to Suppress, and the Court having been otherwise fully advised

in the premises, it is hereby,

ORDERED AND ADJUDGED that Defendant’s Motion to

Suppress is hereby DENIED for the reasons stated in open court.

DONE AND ORDERED at Daytona Beach, Volusia County,

Florida this

s/Shawn L. Briese

SHAWN L. BRIESE

Circuit Judge

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Fox, SA