F.E.H. v. State (Fouth District Court of Appeals/ February 24th, 1010)

Late one night a detective saw two males standing in the corner of the open parking lot of a closed daycare center. One of them was the 16 year old appellant. The detective got out of his car to investigate why the pair was on the property. At the same time, four or five other officers jumped out of their vehicles and walked past appellant to focus on other persons. When the juvenile F.E.H. walked away from the parking lot, the detective “called him back.” The detective did not pull his weapon. The juvenile F.E.H. testified that he came back because “[h]e was a policeman; I had to come back.”

The Court held: the juvenile F.E.H. began to walk away from the detective. He returned to engage the detective as the result of what a reasonable person would believe was an order, so this response was more of a surrender to authority than an act of free will. Florida courts have held that a police officer's direction to a person to do a particular thing, such as to get out of a car, to take hands out of pockets, or to open a mouth are indicative of a seizure.

Another factor supporting the finding of a seizure is that the detective approached appellant during a police sweep involving other officers. A police action involving a number of officers is a fact that can influence a person's perception that he is not free to ignore an officer's command. Thus, in Clayton v. State, 616 So.2d 615, 616-17 (Fla. 4th DCA 1993), the presence of four officers from a narcotics task force was one factor that “communicated to [the] defendant that he was not at liberty to ignore their presence and go about his business.”

The Court suppressed the evidence and the case was thrown out.