District Court of Appeal of Florida, Third District.
Bennett H. Brummer, Public Defender and N. Joseph Durant, Jr., Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Joni B. Braunstein, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
SCHWARTZ, Chief Judge.
Without probable cause or reasonable suspicion, Officer Picallo confronted Evans sitting on a park bench at 4 o'clock in the morning. After he "asked" the defendant to take his hands out of his pockets, for, as Picallo stated, "[the officer's] own safety," Evans did so and a small packet of cocaine dropped to the ground.[1] The cocaine was not but should have been suppressed below. Given the realties of the situation, and notwithstanding the policeman's contrary statement, it is clear that "a reasonable person [in the defendant's situation] would have believed he was not free to [disobey the officer]." See United States v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). Hence, the contraband was not, as the trial judge held, voluntarily abandoned, but was rather revealed only because of a constitutionally unjustified police order. See Wallace v. State, 540 So. 2d 254 (Fla. 4th DCA 1989); Jenkins v. State, 524 So. 2d 1108 (Fla.3d DCA 1988).
Reversed.
[1] The officer described what happened after he inquired after Evans's well-being:
Q. Did he respond to you when you asked him how he was doing?
A. No.
Q. What did he do?
A. He just started walking towards me basically.
Q. At what time what did you ask him?
A. Remove his hands from his pockets.
Q. Did you ask him or order him?
A. I asked him.
Q. Was he free to leave?
A. Yes, he was.
Q. What, if anything, did the defendant do?
A. He removed his hands from his pockets.
Q. What, if anything, did you observe?
A. When he removed I believe it was his right hand, a small packet fell out which after I observed it contained powder cocaine.
Q. It was in a clear plastic bag?
A. Yes, it was.
