Gentles v. State (4th District Court of Appeals, December 22nd, 2010).

The officer was patrolling a Mall, when he encountered the defendant in the parking lot at 4:15 a.m. The mall was closed and, as usual, there were no other vehicles in the parking lot. He saw that the defendant was asleep on the driver's side of his car and the engine was running. The officer said that he approached the vehicle to make contact with the defendant and make certain that he was not injured or sick. He explained that he was concerned because it was an unusual hour for a car to be in the parking lot and the defendant appeared to be asleep in the running car.  The officer could not recall whether the window was up or down or what he did to awaken the defendant; after failing to respond initially, the defendant woke up and the officer made contact with him. The first thing the officer did was order the defendant to turn off his car. The defendant complied. The officer said he ordered the defendant to turn off the car for his safety and for the defendant's safety. He explained that he did not want the defendant to drive off, or if he was injured or sick, to get scared and throw the car into gear and accidentally drive into whatever was in front of him. The officer did not testify about any specific facts which made him believe that the defendant posed a danger to the officer.  The officer later arrested the driver for Felony Driving with a Suspended License.

The Defense filed a Motion to Suppress on the grounds that the officer's instruction to turn off the engine was an unreasonable seizure and that the officer's actions constituted a “show of authority.”  This "show of authority" turned a consensual encounter into an unlawful detention that was not based on reasonable suspicion of criminal activity.

The Appeals court agreed: "We conclude that ordering a citizen to shut off the car engine...alone constitutes a seizure.  No evidence was presented in this case showing a specific concern for officer safety. Here, there were no furtive movements, nervous reactions, or any circumstances to warrant a belief that the officer's safety was in danger, and no facts showing that the order to shut down the engine was reasonably necessary to protect the officer's safety.  The record is devoid of facts showing that the officer's instruction to shut off the car was reasonably based on concerns for the defendant's safety or was necessary to determine if he needed any aid or assistance. Officer Horn testified that he issued the order immediately after approaching the vehicle and awakening the defendant. The order to shut off the car was given after the defendant was awakened and before the officer had developed any facts indicating whether the defendant was in difficulty or distress. The officer conceded that he did not have a reasonable belief that the defendant was suffering from an illness or intoxication. Further, he did not furnish any facts or circumstances which suggested that the defendant was disoriented and might drive forward and strike something in a startled stupor. Officer Horn testified about only a generalized, rather than a specific, concern about potential danger from the running motor."

Notes:  In my experience, this is not an unusual scenario and in fact I've had several cases very similar.  The officer invariably tries to justify his contact by saying magic words like: "I felt concerned for my safety" or "I was worried he might be sick or injured."  This Court is telling the lower Trial courts to be skeptical really look at what is going on in the case.  Don't just close the book once the officer says those "magic words."  They have to do more.  They have to have a REAL basis or concern.  This case will be very useful here in Palm Beach County Courts.