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546 So. 2d 1125

Docket No. 89-204.

Evans v. State

Edwin Anthony EVANS, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided July 18, 1989.

District Court of Appeal of Florida · decided 1989-07-18

Key passage — most relied on by later courts

“`asked' the defendant to take his hands out of his pockets, for, as [the officer] stated, `[the officer's] own safety.'”

quoted by 1 later decision, including 564 So. 2d 1166 - Dees v. State

“revealed only because of a constitutionally unjustified police order.”

quoted by 1 later decision, including 564 So. 2d 1166 - Dees v. State

Relies on Florida v. Royer · United States v. Mendenhall · 524 So. 2d 1108 - Jenkins v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1989-07-18

How this case has been cited

Cited by 16 later decisions — most recently November 2012

16 state decisions

1101989199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Bennett H. Brummer, Public Defender and N. Joseph Durant, Jr., Asst. Public Defender, for appellant.

¶2Robert A. Butterworth, Atty. Gen. and Joni B. Braunstein, Asst. Atty. Gen., for appellee.

¶3Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.

¶4SCHWARTZ, Chief Judge.

¶5Without 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).

¶6Reversed.

NOTES

¶7[1] The officer described what happened after he inquired after Evans's well-being:

¶8Q. Did he respond to you when you asked him how he was doing?

¶9A. No.

¶10Q. What did he do?

¶11A. He just started walking towards me basically.

¶12Q. At what time — what did you ask him?

¶13A. Remove his hands from his pockets.

¶14Q. Did you ask him or order him?

¶15A. I asked him.

¶16Q. Was he free to leave?

¶17A. Yes, he was.

¶18Q. What, if anything, did the defendant do?

¶19A. He removed his hands from his pockets.

¶20Q. What, if anything, did you observe?

¶21A. When he removed I believe it was his right hand, a small packet fell out which after I observed it contained powder cocaine.

¶22Q. It was in a clear plastic bag?

¶23A. Yes, it was.

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