FL: Motorist who did not see police or lights was not seized until he actually knew they were there

Defendant who had his head down and was rolling a blunt never saw the police approach on foot to his car, so he was not seized by their approach. He did not even see the lights of the police car, so a per se rule of lights = seizure cannot be applied. Once he saw the officers, he was seized, and he clearly could not leave. The court notes that it cannot apply the law to permit a citizen to leave because it would be dangerous to the citizen. G.M. v. State, 19 So. 3d 973 (Fla. 2009), affg G.M. v. State, 981 So. 2d 529 (Fla. 3d DCA 2008):

Despite our approval of the Third District’s conclusion with regard to the general inappropriateness of per se rules in the Fourth Amendment analysis context, we cannot agree with its further conclusion that, even if G.M. had been aware of the emergency lights, a seizure would not have occurred under the totality of the circumstances here. See G.M., 981 So. 2d at 534. The record reflects that the officers rapidly crossed the public street in their vehicle with emergency lights activated, entered the park, and positioned the police vehicle behind the two parked cars around which the individuals were congregating. There is absolutely no indication that the officers believed the individuals to be in need of aid, and the individuals certainly did not exhibit conduct to indicate that they sought police assistance. Cf. Evans, 764 N.E. 2d at 843; Johnston, 620 N.E. 2d at 129; Blair, 14 P.3d at 665. The officers, although not in uniform, exhibited badges and possessed handguns as they exited the vehicle. Finally, while one officer approached the Lexus, the second officer positioned himself to observe the individuals and was prepared to apprehend anyone who attempted to leave the area.

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

“Personal service” of a search warrant is not required by the state constitution, but it is by statute, but, in some cases, it is impractical. A failure of personal service does not void the search. Darity v. State, 2009 OK CR 27, 220 P.3d 731 (2009):

[*P12] Personal service of the warrant on a person found within the premises at the time of the search protects both officers and occupants by discouraging resistance and informing those within the premises that the intrusion is under lawful authority. However, personal service on persons located elsewhere when the warrant is executed is unnecessary to ensure the reasonableness of the search or protect the legitimate interests of the parties affected. Other statutes serve to safeguard the liberty and property interests of persons affected by execution of a search warrant on their property. 22 O.S.2001, §§ 1233-1240. These laws provide for a publicly filed inventory of the search, delivery of an inventory to the person whose property was seized, the right to judicial hearing on the issuance of the warrant, the right to restoration of property unlawfully seized, and criminal sanctions against officers who maliciously procure warrants without probable cause or execute them with “unnecessary severity.” 22 O.S.2001, §§ 1233-1240.