IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT IN AND

FOR ORANGE COUNTY, FLORIDA

_________________________________________________________________________

CASE NO. 55-5555

_________________________________________________________________________

STATE OF FLORIDA,

Appellant,

v.

MARY WHITTAKER

Appellee.

__________________________________________________________________________

APPEAL OF THE LOWER COURT’S DECISION

GRANTING THE MOTION TO SUPPRESS FROM

THE COUNTY COURT OF THE NINTH JUDICIAL

CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

___________________________________________________________________________

BRIEF FOR APPELLANT STATE OF FLORIDA

___________________________________________________________________________

Rebecca Slowik, Esq.

Florida Bar Number 000000

Slowik & Slowik, P.A.

1234 Oak Wood Drive

Orlando, FL 32801

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TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………ii

TABLE OF AUTHORITIES…………………………………………………………..iii

STATEMENT OF SUBJECT MATTER JURISDICTION IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUITIN AND FOR ORANGE COUNTY, FL…………………………………....... 4

STATEMENT OF JURISDICTION………………………………………………….. 4

STATEMENT OF ISSUE…………………………………………………………….. 4

STATEMENT OF THE CASE………………………………………………………... 4

STATEMENT OF THE FACTS…………………………………………………….. 4-5

SUMMARY OF ARGUMENT……………………………………………………… 5-6

ARGUMENT………………………………………………………………………… 6-9

THE EVIDENCE FOUND ON MARY WHITTAKER SHOULD NOT HAVE BEENSUPPRESSED AS THE FRUIT OF AN UNCONSTITUTIONAL SEARCH AND SEIZURE BECAUSE THE ENCOUNTER BETWEEN THE POLICE OFFICER AND MARY WHITTAKER WAS NOT A STOP BUT A CONSENSUAL ENCOUNTER.

CONCLUSION……………………………………………………………………….. 9

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TABLE OF AUTHORITIES

CASES

State v. Poole, 730 So.2d 340 (3d DCA, 1999)…………………………………… 6-7

Florida v. Bostick, 501 U.S. 429 (1991)…………………………………………….. 7

State v. Livingston, 681 So.2d 762 (2d DCA, 1996)……………………………….. 8

FL RULES OF APPELLATE PROCEDURE

FL Rules of Appellate Procedure Rule 9.030 (c)(1)………………………………… 4

FL Rules of Criminal Procedure Rule 3.190 (g) & (h)……………………………… 4

FL Rules of Appellate Procedure Rule 9.140……………………………………….. 4

STATUTES

Florida Statute 893.147……………………………………………………………… 4

UNITED STATES CONSTITUTION

U.S. CONST. amend. IV…………………………………………………………… 6

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Statement of Subject Matter Jurisdiction in the County Court of the Ninth Judicial Circuit

in and for Orange County, Florida

The defendant, Mary Whittaker, was issued a notice to appear in the County Court of the Ninth Judicial Circuit in and for Orange County, Florida on November 05, 1998. The notice to appear charged her with violating Florida Statute 893.147 for possession of drug paraphernalia. Defendant received a decision on her Motion to Suppress on July 19th, 1999.

Statement of Jurisdiction

This is an appeal from the decision of the County Court of the Ninth Judicial Circuit in and for Orange County, Florida pursuant to a Motion under Rule 3.190(g) & (h) of the Florida Rules of Criminal Procedure. Jurisdiction in the County Court of the Ninth Judicial Circuit in and for Orange County, Florida is invoked under FL Rules of Appellate Procedure Rule 9.030 (c)(1) and 9.140.

Statement of the Issue

Did the trial court err in granting defendant Mary Whittaker’s Motion to Suppress when a law enforcement officer engaged in a consensual encounter with Mary Whittaker, resulting in a notice to appear and charge of possession of drug paraphernalia according to Florida Statute 893.147 upon defendant Mary Whittaker on the 5th day of November, 1998?

Statement of the Case

On November 5th, 1998, Officer Manley and Officer Taylor came in contact with defendant Mary Whittaker in a pathway leading to a high drug usage area known as The Hole. One of several previous encounters between Mary Whittaker and the officers, Officer Taylor and Mary Whittaker proceeded to exchange words, whereupon Mary Whittaker produced a crack pipe out of her pocket in response to the officer. Mary Whittaker was issued a Notice to Appear that same day, November 5th, 1998, and was charged with possession of drug paraphernalia under Florida Statute 893.147. Mary Whittaker’s Notice to Appear in court was on November 19th, 1998. Mary Whittaker filed a Motion to Suppress on July 1st, 1999, which was heard and granted by the court on July 19th, 1999. The State filed a Notice of Appeal on July 30th, 1999.

Statement of the Facts

Officer Taylor has had contact in the past with Mary Whittaker on the street and in drug activity areas. (T.4). On two occasions, Officer Taylor has observed Mary Whittaker violating some provisions of Chapter 893. (T.4). On the 5th day of November, 1998, Officer Taylor encountered Mary Whittaker by a secluded area known as the hole, which requires one to walk through the woods or a small path in order to arrive there. (T.5). The area of the hole is well acquainted with law enforcement activity as locals are known to smoke crack cocaine in the hole after buying it

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off the streets. (T.5). Mary Whittaker was walking out of the hole as Officer Taylor was walking in. (T.6). Mary Whittaker had a look on her face as if she was high. (T.6). Officer Taylor proceeded to ask Mary Whittaker, with no command, “Mary, what are you doing back here again?” (T.6). In response, Mary Whittaker stopped and stood looking at Officer Taylor. (T.7). Officer Taylor was dressed in official police uniform with his gun inside his gun belt. (T.7). Officer Taylor stood facing the east while Mary Whittaker stood facing the west. (T.7). Officer Taylor positioned himself to the side of the path due to its narrowness and in order not to block the path. (T.7). Officer Manley proceeded past Officer Taylor while Officer Taylor began a normal conversation with Mary Whittaker. (T.7). No authoritative language was displayed on Mary Whittaker by Officer Taylor. (T.7). In a non-threatening manner, one of Officer Taylor’s hands were placed on his hip, while the other was placed on his asp. (T.8). Officer Taylor asked Mary Whittaker, “You got anything on you today?” (T.8). Whittaker responded, “It matters if I’m going to jail or not.” (T.8). Officer Taylor has caught Mary Whittaker with a misdemeanor amount before, in which he decided to leave Mary Whittaker with a warning rather than charge her. (T.9). Officer Taylor informed Mary Whittaker, “Well if you only got a crack pipe or something like that, then I’m just going to give you a ticket.” (T.9). Within the area of the hole, a ticket is commonly known as a Notice to Appear. (T.9). Mary Whittaker then pulled out a crack pipe from her left pocket and gave it to Officer Taylor. (T.9). Officer Taylor issued Mary Whittaker a Notice to Appear. (T.10). Officer Taylor placed the crack pipe into evidence. (T.9). Before Mary Whittaker gave the crack pipe to Officer Taylor, Officer Taylor had not made any physical contact with Mary Whittaker. (T.10). Also, Officer Taylor did not, at any time, require Mary Whittaker to take anything out of her pocket. (T.10). After Officer Taylor received the crack pipe from Mary Whittaker and issued Mary Whittaker a Notice to Appear, Officer Taylor conducted an incident to arrest search on Mary Whittaker. (T.10). At no point in the entire conversation between Officer Taylor and Mary Whittaker did Officer Taylor tell Mary Whittaker she should search herself or he, Officer Taylor, would search her anyway. (T.10). Resulting from the incident to arrest search, Officer Taylor found copper wire mesh on Whittaker. (T.11). If Mary Whittaker would have continued to the street after leaving the hole, Officer Taylor would have let her go. (T.11-12).

Summary of Argument

For an encounter between an individual and a police officer to be considered non-consensual and in violation of that individual’s Fourth Amendment right, the encounter must possess the elements of a stop. Elements of a stop would include instances such as: a police officer intimidating and coercing the individual into consent of the encounter between them, a police officer demanding the individual to produce dialogue, a police officer blocking the individual’s path and restricting the individual from freely leaving the encounter, and a police officer confining the individual beyond an appropriate amount of time.

According to the instant case, defendant Mary Whittaker filed a Motion to Suppress which was granted on the grounds that her confrontation with Officer Taylor and Officer Manley was non-

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consensual and classified as a stop. However, according to the facts of the transcript, the encounter between defendant Mary Whittaker and the two police officers possessed elements of a consensual encounter. These elements of a consensual encounter are displayed in the following fact sentences from the transcript. Officer Taylor positioned himself to the side of the path, while in conversation with defendant Mary Whittaker, in order not to block defendant Mary Whittaker’s path. (T.7). Officer Taylor conducted a normal conversation with defendant Mary Whittaker and at no time did he use authoritative language while speaking with defendant Mary Whittaker. (T.7). Officer Taylor did not threaten defendant Mary Whittaker nor did he physically touch defendant Mary Whittaker or force defendant Mary Whittaker to search herself. (T.10). Defendant Mary Whittaker freely decided, with no instruction from Officer Taylor, to take the crack pipe out of her pocket and hand it over to Officer Taylor. (T.10).

The encounter between defendant Mary Whittaker and the two police officers was neither non-consensual nor a stop. Instead, the encounter between defendant Mary Whittaker and the two police officers was a consensual encounter and was not in violation of defendant Mary Whittaker’s Fourth Amendment right. The encounter did not threaten, coerce, intimidate, restrict, or restrain defendant Mary Whittaker in any way. Defendant Mary Whittaker chose to converse and remain in contact with the two police officers during the encounter. Therefore, this Court should reverse the lower court’s decision of granting defendant Mary Whittaker’s Motion to Suppress.

Argument

THE EVIDENCE FOUND ON MARY WHITTAKER SHOULD NOT HAVE BEEN SUPPRESSED AS THE FRUIT OF AN UNCONSTITUTIONAL SEARCH AND SEIZURE BECAUSE THE ENCOUNTER BETWEEN THE POLICE OFFICER AND MARY WHITTAKER WAS NOT A STOP BUT A CONSENSUAL ENCOUNTER.

The first case discussed is State v. Poole, 730 So.2d 340 (3d DCA, 1999). The factual scenario is as follows. On November 7, 1997 at approximately 1:10 in the afternoon, Officer Carl Scott, who was in a marked uniform, along with a deputy chief who was not in a marked uniform, were on patrol concerning an investigation in a vicinity notorious for narcotics. Officer Scott and the deputy chief were driving a marked police car. Officer Scott noticed Daile Poole alone on a street corner. Officer Scott recognized Daile Poole as one who’s been involved in narcotics before but was not suspicious of her actions at that time. Officer Scott and the deputy chief got out of the police car, approached Daile Poole, and stood about two feet from where Daile Poole was seated. Officer Scott and the deputy chief informed Daile Poole of who they were and proceeded to ask Daile Poole if she had any narcotics. Daile Poole replied “yes” and presented to the officers a crack pipe retrieved from her pants. The officers arrested Daile Poole and charged her with the possession of cocaine. Daile Poole’s Motion to Suppress the crack pipe and all statements made by her was granted by the trial court and the case was then appealed. In conclusion, the court stated the officers “did not violate Fourth Amendment by approaching defendant on street and asking her whether she had drugs, and defendant’s affirmative response and voluntary presentation of crack pipe to officers was part of consensual encounter,” Poole @

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340. The Court held that the trial court erred in granting the Motion to Suppress and reversed the decision accordingly because the encounter between Officer Scott, the deputy chief, and Daile Poole was a consensual encounter and one that was not in violation of Daile Poole’s Fourth Amendment right.

In the instant case, on November 5th, 1998, at approximately 2:50 in the afternoon, Mary Whittaker was walking through an area well known for illegal drug usage, known as the hole, when she encountered Officer Manley and Officer Taylor. Mary Whittaker was walking out of the hole while Officer Taylor and Officer Manley were walking into the hole. Officer Taylor has made numerous narcotic arrests within the area and knows Mary Whittaker to be a crack cocaine user from past encounters with her. Officer Taylor stopped walking and questioned Mary Whittaker upon seeing her, asking what she was doing in the area. Officer Taylor was intentionally positioned to the side of the path leading to the hole, in order not to block the path. Mary Whittaker first made no oral response and instead stopped walking and looked at him. Officer Taylor then asked Mary Whittaker if she was carrying anything illegal and whether Mary Whittaker had something in her pocket. Mary Whittaker responded, “It matters if I’m going to jail or not.” Officer Taylor informed Mary Whittaker, “Well if you only got a crack pipe or something like that, then I’m just going to give you a ticket.” Mary Whittaker then pulled out a crack pipe from her left pocket and gave it to Officer Taylor and was issued a Notice to Appear. Mary Whittaker filed a Motion to Suppress which was granted by the trial court. The trial court should not have granted the Motion to Suppress because the encounter that occurred between Mary Whittaker, Officer Taylor, and Officer Manley was a consensual encounter.

The next case discussed is Florida v. Bostick, 501 U.S. 429 (1991). The factual scenario is as follows. During a layover in Fort Lauderdale, two officers in uniform, and of the two one carrying a pistol in a zipper pouch, boarded a bus heading to Atlanta from Miami. Without articulated suspicion, according to the officers, the officers chose to inspect Bostick’s ticket and identification. The officers returned both to Bostick after verifying the matching of the bus ticket and Bostick’s identification. The officers continued to remain by Bostick, identifying themselves as narcotic agents in search of illegal drugs. The officers asked Bostick for the consent to search his luggage and advised him that he had a right to decline consent. Bostick was not threatened with a gun by the officers during any point of the encounter. Bostick was arrested and charged with trafficking in cocaine. Bostick filed a motion to suppress the cocaine arguing it was retrieved in violation of the Fourth Amendment, and the trial court denied the motion. Bostick appealed the case, resulting in affirmed, but was sent to the Florida Supreme Court by the Florida District Court of Appeal. The Florida Supreme Court set forth a per se rule, stating it to be unconstitutional for the police to “work the buses,” and that Florida police are allowed to approach, inquire, and ask for consent to search a person in a public place but not on a bus. In conclusion, the U.S. Supreme Court held that the Florida Supreme Court erred in adopting the per se rule and reversed and remanded the judgment because the same standards upheld in a public place are also upheld on a bus. The Court held the encounter between the officers and Bostick to be a consensual encounter because Bostick consented to the officers’ search of his luggage and to the officers’ advisement of Bostick’s right to decline.

In the instant case, Officer Taylor encountered Mary Whittaker by a secluded area known as the hole, which requires one to walk through the woods or a small path in order to arrive there. At approximately 2:50 in the afternoon on November 5th, 1998, Mary Whittaker was walking out of

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the hole as Officer Taylor was walking in. As Officer Taylor stood to the side of the path, Officer Taylor proceeded to question Mary Whittaker as both Officer Taylor and Mary Whittaker were stopped and looking at each other. Officer Taylor was dressed in official police uniform with his gun inside his gun belt. Officer Taylor asked Mary Whittaker if she had anything on her that day. After an exchange of responses, Mary Whittaker pulled out a crack pipe from her left pocket and gave it to Officer Taylor. The conclusion of the instant case should have been a consensual encounter because according to the consideration of all the circumstances surrounding the encounter between Mary Whittaker and the officers, the conduct of the officers did not restrict Mary Whittaker’s freedom to leave the encounter as Mary Whittaker was free to decline cooperation with the officers and chose not to do so.

The next case discussed is State v. Livingston, 681 So.2d 762 (2d DCA, 1996). The factual scenario is as follows. An officer with binoculars observed Livingston receiving money from a black male and handing that male an object in return. The officer believed the deal to be related to narcotics as the area was known for such happenings. The officer radioed two other officers, explaining he had viewed two black males conducting a hand-to-hand deal. Two of the officers who were dressed in uniform left their unmarked police car and approached Livingston. Without revealing a firearm or blocking Livingston’s path as he walked towards them, the officers questioned Livingston as to whether he was selling dope. Livingston denied, handed the officers a tube in which Livingston stated was not real, and told the officers he did not think selling such was illegal. One of the officers proceeded to search Livingston and did not find anything illegal on him. At the time, the officers decided not to arrest Livingston due to the unsupportive results of a field test concerning what was in the tube. On a later date after the substance in the tube was tested and resulted in cocaine, Livingston was arrested and charged with possession of cocaine. Prior to trial, Livingston filed a motion to suppress the evidence and the statements he made to the officers. Livingston’s motions were granted in subsequence to the granting of a mistrial. In conclusion, the court stated, “We agree with the state's contention that the trial court erred by granting the appellee's motions to suppress because the stop was merely a consensual encounter and not an improper stop and illegal seizure,” Livingston @ 764. The case was reversed and remanded.

In the instant case, on November 5th, 1998, at approximately 2:50 in the afternoon, Mary Whittaker was walking through an area well known for illegal drug usage, known as the hole, when she encountered Officer Manley and Officer Taylor. Mary Whittaker was walking out of the hole while Officer Taylor and Officer Manley were walking into the hole. Officer Taylor has made numerous narcotic arrests within the area and knows Mary Whittaker to be a crack cocaine user from past encounters with her. Officer Taylor stopped walking and questioned Mary Whittaker upon seeing her, asking what she was doing in the area. Officer Taylor was intentionally positioned to the side of the path leading to the hole, in order not to block the path. Mary Whittaker first made no oral response and instead stopped walking and looked at him. Officer Taylor then asked Mary Whittaker if she was carrying anything illegal and whether Mary Whittaker had something in her pocket. Mary Whittaker responded, “It matters if I’m going to jail or not.” Officer Taylor informed Mary Whittaker, “Well if you only got a crack pipe or something like that, then I’m just going to give you a ticket.” Mary Whittaker then pulled out a crack pipe from her left pocket and gave it to Officer Taylor and was issued a Notice to Appear. Mary Whittaker filed a Motion to Suppress which was granted by the trial court. The conclusion

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of the instant case should have been a consensual encounter because the encounter between Mary Whittaker and the officers was neither an improper stop nor an illegal seizure but rather an encounter in which Mary Whittaker consented to the interactions that occurred between her and the officers.

Conclusion

For the reasons set forth above, plaintiff State of Florida requests this court to reverse the county court’s granting of defendant Mary Whittaker’s Motion to Suppress and remand the case to the county court.

Respectfully submitted,

__________________________

Rebecca Slowik, Esq. Florida Bar Number 000000 Slowik & Slowik, P.A. 1234 Oak Wood Drive Orlando, FL 32801

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