Rebecca Slowik

Legal Writing Th 6 pm

MEMORANDUM

To: Senior Attorney
From: Lowly and Humble Associate
Date: February 14, 2013
Re: Possible violation of 4
th
amendment.

Facts
The following are undisputed facts. On November 5
th
, 1998, Mary Whittaker was walking
through an area well known for illegal drug usage when she encountered Officer Manley and
Officer Taylor. Whittaker has been in contact with Officer Taylor multiple times before and has
been arrested by him in the past. Whittaker has a history of crack cocaine usage. Officer Taylor
questioned Whittaker, asking if she was carrying anything illegal and whether she had something
in her pocket. Whittaker pulled out of her pocket a pipe used for the consumption of crack
cocaine and gave the pipe to Officer Taylor.
The following are additional facts according to Officer Taylor. Whittaker was in the hole, an
area known for its illegal drug usage, when Whittaker walked towards the officers as she was
engaged in casual conversation. Officer Taylor has made numerous narcotic arrests within the
area and knows Whittaker to be a crack cocaine user from past encounters with her. Upon asking
if Whittaker had a stem, commonly known as a pipe, on her, Whittaker responded, Possibly,
it matters if Im going to get in trouble. Officer Taylor told Whittaker he would give her a
ticket, commonly known within the area as a notice to appear, and not take her to jail if a stem
was the only thing Whittaker had on her. Whittaker gave to Officer Taylor a pipe and wire mesh
from her pocket. Officer Taylor asked Whittaker if she was still smoking rock, known as crack
cocaine, and Whittaker replied saying she smoked crack cocaine approximately two hours
before. The crack pipe and wire mesh were submitted into evidence by the officer. Whittaker
was not arrested but issued a notice to appear.
The following are additional facts according to Mary Whittaker. Whittaker was walking through
her neighborhood, which is an area notorious for high drug usage. Whittaker has lived in the area
since childhood and has a history of cocaine usage but was not doing anything wrong on
November 5
th
, 1998. Due to the heat of the day, Whittaker was walking in the shade. Officer
Manley and Officer Taylor came up to Whittaker in a harassing manner, demandingly
questioning her with a nasty tone of voice while communicating closely to her face and blocking
her path. Whittaker has been arrested by Officer Taylor at least one time in the past. The officers
asked questions such as Do you have anything illegal on you? What do you have in your
pocket? The officers did not ask Whittaker for identification and she did not have identification
on her at the time. The officers asked Whittaker to search herself, something that has happened
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Legal Writing Th 6 pm

before in previous run-ins. Embarrassed from having to search herself and feeling as if she was
forced to give the officer what was in her pockets, Whittaker gave the officer the pipe from her
pocket. Officer Taylor would have taken the pipe away from Whittaker regardless. Officer
Taylor issued a citation to Whittaker and did not arrest her.
Issue
Whether Mary Whittakers 4
th
amendment right was violated through an unreasonable search
and seizure conducted by the officers, which resulted from a non-consensual encounter, on
November 5
th
, 1998?
Brief Answer
Probably no, it depends on who the court believes. If the court believes the testimony of the
officers, then the court should believe Mary Whittaker consented to the encounter and the self-
pat down directed by the officers because she approached the officers and willingly engaged in
conversation with them.
Discussion
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, 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 noticed Daile Poole alone on a street corner at 1:10
pm. Officer Scott recognized Poole as one whos been involved in narcotics before but was not
suspicious of her actions at that time. Officer Scott and the deputy approached Poole, stood about
two feet from where Poole was seated, told Poole who they were and proceeded to ask Poole if
she had any narcotics. Poole replied yes and presented to the officers a crack pipe retrieved
from her pants. The officers arrested Poole and charged her with the possession of cocaine.
Pooles motion to suppress the crack pipe and all statements made by her was granted by the trial
court and the case was then appealed.

The issue of this case is whether an unlawful search and seizure occurred under the Fourth
Amendment. According to Poole, the mere approach of a law officer towards an individual on
the street or public area and the questioning of that individual, receiving participation and
consent from him or her, does not violate the Fourth Amendment, citing Florida v. Royer, 460
U.S. 491 (1983), 103 S.Ct. 1319; Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115
L.Ed.2d 389 (1991); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980); State v. Ferrell 705 So.2d 1052; State v. Livingston ,681 So.2d 762, 764
(Fla. 2d DCA 1996); State vs. Scruggs, 563 So.2d 717, 718 (Fla. 3d DCA 1990); State v.
Simons,549 So.2d 785, 786 (Fla. 2d DCA 1989). The Fourth Amendments unlawful seizure is
present when the individuals freedom of movement is taken away and accompanied by force,
Mendenhall @ 553. According to id @ 554, a seizure would include 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. Simons @ 787 states a consensual encounter as one that the
officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer
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inquiries, and the person may not be detained without reasonable objective grounds for doing
so." In regard to this case, the undisputed facts reveal that the officers did not show any weapons
upon approaching Poole and also did not stop her from exiting the encounter in any way. Poole
answered the officers and gave up her crack pipe out of voluntariness. Ferrel @ 1052 states when
coercion or intimidating circumstances are not present, the questioning by police of criminal
behavior alone does not change a consensual encounter into an unlawful seizure. In State v.
Collins, 661 So.2d 962, 964 (Fla. 5
th
DCA 1995), the officer was engaged in casual conversation
with the defendant, asked the defendant if he had any knives, guns, or drugs on him and retrieved
the evidence from the defendant who consented to the search, in which the evidence seized was
due to a consensual encounter. 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
defendants affirmative response and voluntary presentation of crack pipe to officers was part of
consensual encounter, Poole @ 340. The trial court erred in its granting of the motion to
suppress and the judgment was reversed.
The second 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 the defendants
ticket and identification. The officers returned both to defendant after verifying the matching of
the bus ticket and defendants identification. The officers continued to remain by the defendant,
identifying themselves as narcotic agents in search of illegal drugs. The officers asked the
defendant 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.
According to Bostick @ 432, there is a conflict in the evidence about whether the defendant
consented to the search of the second bag in which the contraband was found and as to whether
he was informed of his right to refuse consent. The defendant was arrested, charged with
trafficking in cocaine, 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 issue in this case is whether this type of police encounter on a bus, as explained in
the facts, qualifies as a seizure according to the Fourth Amendment. The court states in Bostick
@ 434, Our cases make it clear that a seizure does not occur simply because a police officer
approaches an individual and asks a few questions. So long as a reasonable person would feel
free to disregard the police and go about his business, California v. Hodari D., 499 U.S. 621,
628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable
suspicion is required. 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.
According to Bostick @ 437, no seizure occurs when police ask questions of an individual, ask
to examine the individual's identification, and request consent to search his or her luggageso
long as the officers do not convey a message that compliance with their requests is required.
Stated in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968),
Obviously, not all personal intercourse between policemen and citizens involves seizures' of
persons. 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. Bosticks
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disputed fact of feeling he was confined on the bus by the officers is not a reflection of a direct
confinement but rather a normal and typical result of choosing to be transported by a bus.
In INS v. Delgado, 466 U.S. 218, 104 S.Ct. 1763 (1984), the INS paid a random visit to a
factory, questioning the employees to find out if any illegal aliens were present among the
employees. The Court believed the employees restriction of not being able to leave the work site
was not the result of the INS presence but rather an ordinary restriction put in place due to the
employees obligations to their employers. We concluded that there was no seizure because,
even though the workers were not free to leave the building without being questioned, the
agents conduct should have given employees no reason to believe that they would be detained
if they gave truthful answers to the questions put to them or if they simply refused to answer,
Delgado @ 466 U.S., at 218, 104 S.Ct., at 1763. According to Bostick @ 436, The present case
is analytically indistinguishable from Delgado. Like the workers in that case, Bosticks freedom
of movement was restricted by a factor independent of police conducti.e., by his being a
passenger on a bus. Accordingly, the free to leave analysis on which Bostick relies is
inapplicable. In conclusion, the Court states, 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. That rule applies to encounters that take place on a city street or in an
airport lobby, and it applies equally to encounters on a bus. The Florida Supreme Court erred in
adopting the per se rule. The judgment of the Florida Supreme Court is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion, Bostick @ 439-440.

The third case discussed is Florida v. Royer, 460 U.S. 491 (1983). The factual scenario is as
follows. Royer was approached by two police officers in the airport who classified him as fitting
the characteristics of a drug courier profile. Royer consented to speaking with the officers and
produced his airline ticket and drivers license upon request of the officers. The officers notified
Royer that they were narcotic investigators and, upon request, Royer followed the officers into a
small room. One officer obtained Royers luggage without his permission, brought the luggage
into the room, and instructed Royer to consent to a search of his luggage. The officers found
marijuana in both of Royers suitcases and arrested him on the scene. Royer motioned to
suppress the evidence gathered from the search, which was denied, and was convicted in trial
court. Royer appealed to the District Court of Appeal, resulting in a reverse. The issue in this
case is whether, under the Fourth Amendment, Royer was illegally detained during the search of
his luggage. According to Royer @ 496, under Dunaway v.New York, 442 U. S. 200 (1979), a
police confinement which . . . goes beyond the limited restraint of a Terry investigatory stop may
be constitutionally justified only by probable cause.389 So. 2d, at 1019.
Detective Johnson, who conducted the search, had specifically stated at the suppression hearing
that he did not have probable cause to arrest Royer until the suitcases were opened and their
contents revealed, id @ 496. Under Michigan v. Summers, 452 U. S. 692 (1981), an inhabitant
of a house was detained while an officer was implementing a search warrant for that house. The
court held that the warrant made the occupant sufficiently suspect to justify his temporary
seizure. The limited intrusio[n] on the personal security of the person detained was justified by
such substantial law enforcement interests that the seizure could be made on articulable
suspicion not amounting to probable cause, Royer @ 499 citing Summers @ 699. In Dunaway
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@ 211-212, the suspect was taken to the police station from his home and, without being
formally arrested, interrogated for an hour. The resulting incriminating statements were held
inadmissible: reasonable suspicion of crime is insufficient to justify custodial interrogation even
though the interrogation is investigative. According to Royer @ 513, the Florida District Court
of Appeal, Third District, held that respondent Royer had been arrested without probable cause
before he consented to the search of his luggage, and that his consent was therefore tainted by
this illegal detention. In conclusion, Royer @ 495 states, the District Court of Appeal, sitting
en banc, reversed Royer's conviction. The court held that Royer had been involuntarily confined
within the small room without probable cause; that the involuntary detention had exceeded the
limited restraint permitted by Terry v. Ohio,392 U. S. 1 (1968), at the time his consent to the
search was obtained; and that the consent to search was therefore invalid because tainted by the
unlawful confinement.The States petition for certiorari was granted and the judgment affirmed.

The fourth 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 Livingstons 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. The officers did not read Livingston his Miranda
Rights and did not notify him of being free to leave the encounter. 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 motioned to suppress the evidence and the
statements he made to the officers. Livingstons motions were granted in subsequence to the
granting of a mistrial.
The issue in this case is whether the encounter was consensual or whether it was in violation of
the Fourth Amendment due to an unlawful seizure. State v. Simons,549 So.2d 785 (Fla. 2d DCA
1989) is a case regarding the subject of consensual encounter. Simons @ 785, A consensual
encounter involves only minimal police contact but no seizure and therefore does not intrude on
any constitutionally protected interest under the Fourth Amendment. A consensual encounter
contains indication to the individual involved that he or she is free to decline a casual encounter
from an officer. Simons @ 787, while most citizens respond to a police request, the fact that
they do so without being told they are free not to respond does not eliminate the consensual
nature of their response. According to Livingston @ 762, the facts of the instant case indicate
that a reasonable person would have felt that he was free to leave and that it was therefore a
consensual encounter. As in Jones, the officers in the instant case did not display a badge or a
gun, order the appellee to stop, handcuff him, use language or a tone of voice indicating that
compliance would be compelled, nor was there any indication that the encounter became
threatening in any manner. The only testimony presented was that the appellee voluntarily
answered the officers' questions and handed over the drugs. Therefore, the fact that the appellee
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voluntarily displayed the drugs was not the product of an unlawful stop and the trial court erred
in suppressing the evidence and statements. In conclusion, the case was reversed and remanded
with instructions to discharge the appellee. The court stated, Although our final disposition of
the matter makes our determination of the matter moot, 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, id @ 764.

The fifth case discussed is State v. Avery, 531 So.2d 182 (4
th
DCA, 1988). The factual scenario
is as follows. On July 26, 1986, two officers not in uniform but in clothing indentifying their
officer positions boarded a bus in West Palm Beach headed for Dallas. These two officers, along
with a trained dog, frequently checked the Trailways Bus Station in search of drug couriers. The
officers questioned passengers on that specific bus with intentions to gain consent to search
luggage. Avery, a large man, was brought to one of the officers attention due to his nervous
behavior and Averys action of moving his bag under a seat with his foot. According to the
officer, he approached Avery and received Averys consent to inspect his luggage that was under
the seat. The officers understood they had the ability to use a written consent to search form but
did not believe it to be necessary at the time. Avery filed a motion to suppress the evidence,
arguing his consent was coerced. Averys motion to suppress was granted. The issue in this case
is whether Avery was coerced into the consent of his luggage being searched.
According to Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229
(1983), [L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking him if he is willing
to answer some questions, by putting questions to him if the person is willing to listen, or by
offering in evidence in a criminal prosecution his voluntary answers to such questions.
Under Terry v. Ohio, 392 U.S. at 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring), The
person approached, however, need not answer any question put to him; indeed, he may decline to
listen to the questions at all and may go on his way, Avery @ 184. Whether consent is
voluntary is a question to be determined from the totality of the circumstances In this case, the
defendant had not been stopped or seized as those terms are commonly understood.
Nevertheless, if his consent to the search was coerced, a motion to suppress should be granted,
and the wrongfully obtained evidence excluded, id @ 184. The court states that the officers
advised Royer of their purpose in questioning and seeking the cooperation of the passengers.
They asked him if he would consent to the search of his luggage, and advised him that he could
refuse. The defendant was not stopped, restrained nor otherwise detained. There were no
weapons involved, and no inappropriate nor intimidating conduct or language was used. The
defendant was not asked to move, nor was he physically prevented from moving. His ticket and
license were not confiscated, id @187. In conclusion and according to Avery @ 184, 186, the
court concluded that the trial court erred in determining that the defendant's consent was
coerced, and reverse Law enforcement officers are not restricted from boarding buses or other
public transportation with the permission of the operator. Being lawfully present, they are free to
communicate with the passengers. The location where an encounter takes place whether on a
bus, in a terminal, or in a room is certainly a factor that the trial court should consider in
weighing a motion to suppress. The case was reversed and remanded for further proceedings.

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Conclusion
The probable outcome for Mary Whittaker depends on what the court finds concerning her
situation and with respect to the case law on point with the facts of her case. Whittakers case
involves whether her encounter with the police officers was consensual or non-consensual.
According to State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989), State v. Poole, 730 So.2d 340
(3d DCA, 1999), and Florida v. Bostick, 501 U.S. 429 (1991), an officer is not in violation of the
Fourth Amendment when that officer approaches an individual in an inquisitive manner that
gives the individual the option of choosing to comply or refrain from consenting to the
encounter. In the case of Mary Whittaker, the testimony of the officers claims Whittaker walked
towards them, which shows an initiation of the encounter, and willingly answered the questions
directed to her. If the court believes the testimony of the officers, then the court should find that
Whittaker willingly complied with the officers, voluntarily answered them, and freely was given
an opportunity to exit the encounter without the threat of force or coercion by the officers,
resulting in a consensual encounter that is not in violation of the Fourth Amendment. On the
other hand, according to Florida v. Royer, 460 U.S. 491 (1983), Dunaway v.New York, 442 U.
S. 200 (1979), and Terry v. Ohio, 392 U. S. 1 (1968), if an officer confines an individual beyond
a certain time limit, confines an individual without probable cause, and approaches an individual
in a threatening, coercive manner without the option of non-consent, then that officer is in
violation of the Fourth Amendment. In the case of Mary Whittaker and according to Whittakers
testimony, Officer Manley and Officer Taylor came up to Whittaker in a harassing manner and
questioned her with a nasty tone of voice while standing closely to her, blocking her path. If the
court believes the testimony of Mary Whittaker, then the court should find that Whittaker was
intimidated by the encounter and coerced into answering the questions, resulting in a non-
consensual encounter that is in violation of the Fourth Amendment.