Record supported exigency of potential violence; suppression order reversed

Officers’ 12 second wait was reasonable under the circumstances because of defendant’s known propensity to be armed. The trial court erred in suppressing. (Hudson was argued by the state, but the court declines to go there based on the merits of the entry.) State v. Pruitt, 967 So. 2d 1021 (Fla. App. 2DCA 2007):

In the instant case, the officers knew they were not dealing with a minor league crack or marijuana dealer. The affidavit for search warrant described a person who ran a large or growing heroin distribution operation, who used semi-sophisticated techniques to elude law enforcement, such as the use of female “mules” or hiding heroin in the dashboard or body of a vehicle, and who was a participant in a larger heroin distribution network. Additional information provided to TACT supported their reasonable belief that they were dealing with a violent career criminal. See Power v. State, 605 So. 2d 856 (Fla. 1992) (holding that police officers were not required to knock and announce when executing a search warrant where they had been informed that the defendant used a gun or knife to rape, had committed armed robbery, had a black belt in karate, had a gun, and had a violent background). In Power, there was no indication that the “specific” information that Power had used a gun or knife in the rape was also included in the warrant; it was simply information provided to the police officers prior to their execution of the warrant. See also Poole v. United States, 630 A.2d 1109, 1124 (D.C. App. 1993) (holding that where officers entered after ten seconds in the reasonable belief that defendant was on premises and had a gun and would use it if confronted provided exigent circumstances excusing full compliance with the knock-and-announce statute). Significantly, during the hearing, the TACT commander testified that he had not even read the warrant itself. Thus inclusion of information in the warrant regarding Pruitt’s potential for violence and the murder investigation would not have assisted his exigency assessment regarding officer peril.

The record supported the trial court’s conclusion that the defendant, while officers were waiting for him to move out from his girlfriend’s place, consented to a search of a lockbox for a gun and found marijuana instead. Bridgett v. State, 1 So. 3d 1054 (Ala. Crim. App. 2007), affd Ex parte Bridgett, 2008 Ala. LEXIS 127 (Ala. 2008).*

Under Mendenhall factors (“Mendenhall lists four examples of circumstances that may be indicative of a seizure, even where the person did not attempt to leave: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”) the defendant’s consent was found to be the product of an unlawful seizure. People v. Ocampo, 377 Ill. App. 3d 150, 879 N.E.2d 353 (2d Dist. 2007):

Regarding the last Mendenhall factor, Rogers testified that he told defendant that he “needed to talk” with defendant. The State argues that a person’s indicating that he “needs to talk” with someone is “in everyday language *** merely an opening to a conversation,” and therefore the State urges that a reasonable person in defendant’s position would not have interpreted Rogers’s statement as a command. We disagree. First, the word “need” indicates a requirement, and Rogers testified that he informed defendant that he “needed” to talk with him, not that he asked defendant if he could talk with him. Second, and relatedly, Rogers did not testify that he waited for defendant’s assent after approaching him indicating a need to talk.

. . .

Though we find two of the Mendenhall factors to indicate a seizure in this case, the State relies on several additional characteristics of the encounter here for its argument that the encounter did not constitute a seizure. The State notes that Rogers was not in uniform, approached defendant in a public area, did not park his car to block defendant’s path, and did not inform defendant of his Miranda rights. However, as discussed above, there were also several indicia of a seizure present in this case, including the first and last Mendenhall factors. The State urges that each of the individual indicia in this case has been held elsewhere not to amount to a seizure, but our test “focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of police conduct in isolation.” People v. Stofer, 180 Ill. App. 3d 158, 166, 534 N.E.2d 1287, 128 Ill. Dec. 682 (1989). Our review of all the circumstances of this encounter, in their totality, convinces us that a reasonable, innocent person in defendant’s position, confronted behind a gas station by an officer, who was soon joined by three other officers, and told that the officer “needed to talk to him” under circumstances that indicated the officer sought him out specifically, would not have felt free to leave. Accordingly, we agree with the trial court that defendant was seized before he gave any consent to search.