
    Tedd J. POPPLE, Appellant, v. STATE of Florida, Appellee.
    No. 91-3003.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1992.
    On Denial of Rehearing Oct. 21, 1992.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, JAMES E., Senior Justice.

The trial court adjudicated defendant, Tedd J. Popple, guilty of possession of cocaine and of possession of drug paraphernalia after he had pled nolo contendere and reserved the right to appeal the denial of his motion to suppress physical evidence. We affirm the judgment below and the denial of defendant’s motion to suppress.

State’s witness, Officer Tim Wilmoth testified at the suppression hearing that on June 4, 1991, at about 12:55 p.m. he was investigating an abandoned stolen car which was located one block from a secluded high crime area. He noticed the defendant, Popple, sitting in a parked car four blocks away. Because the street was rather desolate, with no other cars and only a few residences, the officer decided to inquire of the defendant whether he knew anything about the stolen car or if defendant was experiencing difficulty with his car.

When he drove up to the defendant’s car, the officer observed the defendant acting in a very nervous manner, reaching under the seat and “flipping” about in the car. Realizing that he had no immediate backup and it would take time for a backup officer to arrive and assist him, and being concerned about his personal safety, based on his safety training, he asked the defendant to step out of his car. As the defendant did so, the officer saw in plain view a cocaine pipe on the floorboard. Based upon the probable cause thereby established he arrested defendant, conducted a search incident to the arrest, and seized eight cocaine rocks.

We hold under the facts of this case that the officer’s request that the defendant step out of his car did not elevate this from a consensual encounter to a stop. In this instance the consensual encounter did not cease to be lawful just because the officer requested the defendant to step out of the car.

This holding departs from the language of the Second District in Brown v. State, 577 So.2d 708, 709 (Fla. 2d DCA 1991), where the court said:

First, we hold that this was a stop rather than a consensual encounter. Although Officer Cuicci needed no founded suspicion to approach and talk to Brown, once he directed Brown to exit the car, the encounter became a stop since Brown was no longer free to leave. See State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989).

In Brown officers were randomly approaching people on the street who they thought were “possibly selling narcotics.” Id. Brown’s car was parked on the wrong side of the street, but Brown was not, otherwise, acting suspiciously. When Brown refused to identify himself, an officer directed him to exit his car. The facts in Brown are distinguishable from the present case and may justify the different results reached in these eases.

Following Brown, however, the Fifth District in Jackson v. State, 579 So.2d 871 (Fla. 5th DCA 1991), without discussing any of the surrounding circumstances, disposed of that case solely on the grounds that the officer’s direction to the defendant to exit the car terminated the consensual encounter and became a stop. To the extent that Brown and Jackson establish a ;per se rule to be applied in every case, we disagree.

The law is clear that a police officer must have a well-founded and articula-ble suspicion of criminal activity before conducting an investigatory stop which amounts to a “seizure.” The law is equally clear that all encounters between police officers and citizens do not amount to constitutionally protected seizures. A seizure occurs only when by means of physical force or show of authority, one’s freedom of movement has been restrained and when in light of all the surrounding circumstances it may be said that a reasonable person would have believed that he was not free to leave. 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); J.C.W. v. State, 545 So.2d 306 (Fla. 1st DCA), review denied, 553 So.2d 1165 (Fla.1989).

There is no litmus-paper test for distinguishing a consensual encounter from a stop. State v. Simons, 549 So.2d 785, 787 (Fla. 2d DCA 1989). In making this determination a court must consider the circumstances in each case.

We do not believe that a consensual encounter ceases to be an encounter and becomes a stop in every instance where an officer requests someone to step out of a car. A good example of this is the present case where the officer intended only to talk with the defendant. The circumstances and the defendant’s actions in this case created a situation where it was in the best interest of both the officer and the defendant that their conversations take place with the defendant out of the car. The potential threat perceived by the officer under these circumstances clearly outweighed any de minimis inconvenience imposed upon the defendant by the officer’s request that he step out of his car. This request did not imply that the defendant was being detained or that he was not free to leave.

This case demonstrates that there are situations where an officer, while attempting to ask questions or help a motorist, may request that person to step out of a car without causing a reasonable person to believe he or she is not free to leave. A rule of law that every encounter evolves into a stop when an officer asks a motorist to step outside his or her car, unduly encroaches upon the law requiring an examination of whether a reasonable person under all the surrounding circumstances would feel free to leave.

In addition, a rule that bars a police officer in every encounter from requesting persons to step out of their cars would create situations that are dangerous both to the officer and to others. Balanced against the potential harm that could result, the slight inconvenience imposed upon persons who are asked to step out of their cars is insignificant.

Accordingly, we affirm the trial court's determination to deny appellant’s motion to suppress.

GUNTHER, J., concur.

ANSTEAD, J., dissents with opinion. GUNTHER, J., and ALDERMAN, JAMES E., Senior Justice, concur.

ANSTEAD, Judge,

dissenting.

We often ponder the nature of liberty. I would submit that in its simplest form liberty is not having a police officer approach and order you out of your car. We are breaking new ground today in holding that the police may control the movements of a motorist without any requirement whatsoever of “probable cause” or “founded suspicion” of unlawful conduct. In my view, this constitutes a clear violation of the Fourth Amendment to the United States Constitution. I would follow the decisions from the Second and Fifth Districts cited in the majority opinion, which I believe represent a correct application of Fourth Amendment law.

In Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977), the United States Supreme Court held that a driver who has already been legally stopped and detained by the police may also be ordered out of the ear, since the additional intrusion on a person already detained is not a “serious intrusion.” The court emphasized, however, that it was not approving the scenario adopted by the majority today:

Contrary to the suggestion in the dissent of our Brother STEVENS, post, [434 U.S. at 122-23, 98 S.Ct.] at 339, we do not hold today that “whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car.” We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.

Id. at 111 n. 6, 98 S.Ct. at 333 n. 6. I am also constrained to disagree with the holding that no detention takes place when a police officer orders a driver to get out of his car. In Justice Stevens’s dissenting opinion in Mimms, he noted that it was undisputed that an order to exit a vehicle constituted a detention:

The Court does not dispute, nor do I, that ordering Mimms out of his car was a seizure. A seizure occurs whenever an “officer, by means of physical force or show of authority, ... in some way restraints] the liberty of a citizen_” Id. [Terry v. Ohio, 392 U.S. 1], at 19 n. 16, 88 S.Ct. [1868], at 1879 n. 16 [20 L.Ed.2d 889]. See also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612.

Id. at 116 n. 2, 98 S.Ct. at 336 n. 2.

In the case at hand, the defendant was legally parked in a residential area in broad daylight, and doing nothing even suggestive of criminal conduct, when he was approached from the rear by the police officer. The police officer’s action and the defendant’s reaction are reflected in the officer’s sworn testimony:

Q. Please describe to the Court the actions that you took when you approached the defendant?
A. Okay, when I pulled up behind him, I guess I surprised him pretty bad....
* * * * * *
Q. So if you approached his car, he would observe and readily recognize that you are a law enforcement officer?
A. Correct.
Q. You directed him to step out of his vehicle, correct?
A. Uh-huh.
Q. And what was the reason for that? A. All of the furtive movements that he was making prior to me getting out of my vehicle.
Q. Okay, was he doing anything illegal stopped there?
A. No.
Q. And so the reason that you detained him further was that he was making some furtive movements?
A. Correct.
Q. You didn’t see exactly what those were?
A. Correct.

This scenario is similar to the one involved in Gano v. State, 599 So.2d 759 (Fla. 2d DCA 1992), wherein the second district held:

We conclude that at the time Sergeant Harris ordered appellant and Kelly to exit appellant’s car, he had insufficient facts upon which to base a founded suspicion that appellant or Kelly were involved in criminal activity. He had only a mere suspicion and that is not enough to support a stop. See State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989). As Sergeant Harris approached appellant’s vehicle, he did not ask about weapons, look for weapons, or ever discover weapons. He had driven an unmarked police car to within three feet of appellant’s vehicle, stopped his car with his headlights on and exited his vehicle. As appellant and his passenger looked up at this approaching person, the passenger pushed something beneath his seat. While subsequent events proved appellant and his passenger to be in possession of cocaine, there was nothing prior to their detention to give Sergeant Harris a founded suspicion of criminal activity or a reasonable fear for his safety.

Id. at 760.

ON REHEARING

PER CURIAM.

The petition for rehearing is denied.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge, dissenting.

Appellant has called our attention to one of our own previous decisions which I agree appears to conflict with our holding herein. In Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978), this court stated:

At approximately 1:30 A.M., a police officer observed a sports car, legally parked, with the windows closed and engine off. The car contained three occupants, including appellant. After passing the car, the officer stationed himself at a vantage point where he could observe the car for approximately three to four minutes. Seeing no unusual activity, the officer drove his motorcycle up to and adjacent with the car at which point the appellant, noticing the officer, make a quick motion with his hand between his legs. Appellant was ordered out of his vehicle and upon exiting same the officer observed what appeared to be marijuana on the floor of the vehicle. Appellant was arrested for possession of marijuana which was seized pursuant to the arrest.
We find that under these circumstances the officer did not have a sufficient reason for ordering appellant to leave his vehicle. The officer could investigate appellant’s presence in the legally parked vehicle only if he had “a founded or reasonable suspicion which requires further investigation to determine whether its [the car’s] occupants have committed, are committing, or are about to commit a crime.” Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). Having observed the vehicle for approximately three to four minutes and seeing no suspicious activity, the officer had no reason to approach the vehicle or its occupants. Upon the officer’s arrival, appellant’s quick movement of his hand between his legs did not, in and of itself, constitute such a founded or reasonable suspicion, nor did it constitute probable cause to enable the officer to order appellant out of his car for the purpose of conducting an investigation. There was no indication that appellant was involved in any criminal activity, nor was there any reason to believe that the safety of the officer or the public was endangered.

(Emphasis supplied).  