In a case cutting through the intellectual dishonesty so often seen in traffic stop cases on the question of whether the detainee was free to leave before the different series of questions began, the Florida First District Court of Appeals held that no reasonable person in the defendant’s position could possibly have felt free to leave. Sizemore v. State, 939 So. 2d 209 (Fla. App. 1st Dist. October 11, 2006):
Given the cautionary instructions of Schneckloth, of which the Robinette Court was well aware, we are convinced that the test approved in Robinette, as applied to the particular circumstances before it, does not encompass an officer’s coercive tactics, involving, as here, the presence of a canine unit at the scene and the positioning of the officers’ vehicles in such a manner as to make the defendant’s departure from the scene difficult, if not impossible; notwithstanding the fact that the officer no longer had any reasonable ground for the continued detention of appellant, once he had satisfied the purpose of the stop. Despite the officer’s statement that the defendant was free to go, we cannot conceive that a reasonable person in appellant’s position would have believed his freedom of movement was unrestricted. We therefore conclude that appellant’s consent to search cannot be objectively viewed as voluntary, and, in the absence of a volitional search, the continued detention of the defendant was improper, requiring that the seizure of the items be suppressed. See State v. Diaz, 850 So. 2d 435 (Fla. 2003). As in United States v. Santiago, 310 F.3d 336, 343 (5th Cir. 2002), “the consent to search was not an independent act of free will, but rather a product of the unlawfully extended detention.”
Similarly, Florida’s Fourth District Court of Appeals held that a defendant held during a stop who was not free to go was in custody for Miranda. State v. Hackett, 944 So. 2d 399 (Fla. App. 4th Dist. October 11, 2006, released for publication January 16, 2007).
Washington holds that a police entry based on an alleged exigency of the smell of ammonia from a possible meth lab was not supported by the state in the proof; officers apparently just assumed they could enter. State v. Lawson, 135 Wn. App. 430, 144 P.3d 377 (October 10, 2006):
When the State invokes the emergency exception, it must satisfy us that the claimed emergency is not merely a pretext for conducting an evidentiary search, Schlieker, 115 Wn. App. at 270 (citing Lynd, 54 Wn. App. at 21). In Schlieker, deputies responded to a domestic disturbance call reporting screaming, yelling, and a gunshot at a home. Schlieker, 115 Wn. App. at 267. When the deputies arrived, the occupants explained that a cigarette lighter had exploded in the clothes dryer. Schlieker, 115 Wn. App. at 267. The occupants then told the deputies that they suspected drug activity in a trailer the defendants had parked on the property. Schlieker, 115 Wn. App. at 267. As the deputies approached the trailer to investigate, two individuals ran to a nearby car and drove away from the trailer. Schlieker, 115 Wn. App. at 267. Concerned that the individuals stole the car and that someone in the trailer might be injured, the deputies entered the trailer. Schlieker, 115 Wn. App. at 267.
The deputies found the defendants hiding in the trailer, handcuffed them both, and removed them from the trailer. Schlieker, 115 Wn. App. at 267. The deputies then reentered the trailer and found evidence of methamphetamine manufacture. Schlieker, 115 Wn. App. at 268. In denying the defendants’ motion to suppress, the trial court concluded that the community caretaking exception justified the initial entry. Schlieker, 115 Wn. App. at 269. On appeal, we found significant that (1) the deputies were not at the trailer out of concern for the defendants’ safety, but to investigate trespassing and drug activity allegations; (2) the deputies had no information that someone inside the trailer had been injured; and (3) after finding the defendants unharmed, the deputies did not inquire about their well-being, but handcuffed and arrested them and searched for evidence of criminal activity. Schlieker, 115 Wn. App. at 271-72. We held that the emergency exception did not justify the warrantless entry because “[t]he deputies’ actions and that they did not inquire into the occupants’ safety, but instead handcuffed and arrested them, convince us that this was not a circumstance wherein the deputies were attempting to help people who were injured or in danger.” Schlieker, 115 Wn. App. at 272.
. . .
Because the State did not prove and the trial court did not find that the deputies subjectively believed someone on Lawson’s property needed assistance for health or safety reasons, the court erred in denying Lawson’s motion to suppress. See Kinzy, 141 Wn.2d at 386.
Cause for stop was an informant’s non-predictive and uncorroborated tip and it violated Fourth Amendment. Court also notes discrepancies between officers’ testimony about reaching for a gun and where the gun was found made their testimony not credible. Motion to suppress granted. People v. Nibbs, 2006 V.I. LEXIS 16 (August 3, 2006).*
