1

IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
_________________________________________________________________________
CASE NO. 55-5555
_________________________________________________________________________
STATE OF FLORIDA,
Appellant,
v.
MARY WHITTAKER
Appellee.
__________________________________________________________________________
APPEAL OF THE LOWER COURTS DECISION
GRANTING THE MOTION TO SUPPRESS FROM
THE COUNTY COURT OF THE NINTH JUDICIAL
CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA
___________________________________________________________________________
BRIEF FOR APPELLANT STATE OF FLORIDA
___________________________________________________________________________

Rebecca Slowik, Esq.
Florida Bar Number 000000
Slowik & Slowik, P.A.
1234 Oak Wood Drive
Orlando, FL 32801
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TABLE OF CONTENTS
TABLE OF CONTENTSii
TABLE OF AUTHORITIES..iii
STATEMENT OF SUBJECT MATTER JURISDICTION IN THE
COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FL....... 4

STATEMENT OF JURISDICTION.. 4
STATEMENT OF ISSUE.. 4
STATEMENT OF THE CASE... 4
STATEMENT OF THE FACTS.. 4-5
SUMMARY OF ARGUMENT 5-6
ARGUMENT 6-9
THE EVIDENCE FOUND ON MARY WHITTAKER SHOULD NOT HAVE BEEN
SUPPRESSED AS THE FRUIT OF AN UNCONSTITUTIONAL SEARCH
AND SEIZURE BECAUSE THE ENCOUNTER BETWEEN THE POLICE
OFFICER AND MARY WHITTAKER WAS NOT A STOP BUT A
CONSENSUAL ENCOUNTER.

CONCLUSION.. 9









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TABLE OF AUTHORITIES
CASES
State v. Poole, 730 So.2d 340 (3d DCA, 1999) 6-7
Florida v. Bostick, 501 U.S. 429 (1991).. 7
State v. Livingston, 681 So.2d 762 (2d DCA, 1996).. 8
FL RULES OF APPELLATE PROCEDURE
FL Rules of Appellate Procedure Rule 9.030 (c)(1) 4
FL Rules of Criminal Procedure Rule 3.190 (g) & (h) 4
FL Rules of Appellate Procedure Rule 9.140.. 4
STATUTES
Florida Statute 893.147 4
UNITED STATES CONSTITUTION
U.S. CONST. amend. IV 6











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Statement of Subject Matter Jurisdiction
in the County Court of the Ninth Judicial Circuit
in and for Orange County, Florida
The defendant, Mary Whittaker, was issued a notice to appear in the County Court of the Ninth
Judicial Circuit in and for Orange County, Florida on November 05, 1998. The notice to appear
charged her with violating Florida Statute 893.147 for possession of drug paraphernalia.
Defendant received a decision on her Motion to Suppress on July 19th, 1999.
Statement of Jurisdiction
This is an appeal from the decision of the County Court of the Ninth Judicial Circuit in and for
Orange County, Florida pursuant to a Motion under Rule 3.190(g) & (h) of the Florida Rules of
Criminal Procedure. Jurisdiction in the County Court of the Ninth Judicial Circuit in and for
Orange County, Florida is invoked under FL Rules of Appellate Procedure Rule 9.030 (c)(1) and
9.140.
Statement of the Issue
Did the trial court err in granting defendant Mary Whittakers Motion to Suppress when a law
enforcement officer engaged in a consensual encounter with Mary Whittaker, resulting in a
notice to appear and charge of possession of drug paraphernalia according to Florida Statute
893.147 upon defendant Mary Whittaker on the 5
th
day of November, 1998?
Statement of the Case
On November 5
th
, 1998, Officer Manley and Officer Taylor came in contact with defendant
Mary Whittaker in a pathway leading to a high drug usage area known as The Hole. One of
several previous encounters between Mary Whittaker and the officers, Officer Taylor and Mary
Whittaker proceeded to exchange words, whereupon Mary Whittaker produced a crack pipe out
of her pocket in response to the officer. Mary Whittaker was issued a Notice to Appear that same
day, November 5
th
, 1998, and was charged with possession of drug paraphernalia under Florida
Statute 893.147. Mary Whittakers Notice to Appear in court was on November 19
th
, 1998. Mary
Whittaker filed a Motion to Suppress on July 1
st
, 1999, which was heard and granted by the court
on July 19
th
, 1999. The State filed a Notice of Appeal on July 30
th
, 1999.
Statement of the Facts
Officer Taylor has had contact in the past with Mary Whittaker on the street and in drug activity
areas. (T.4). On two occasions, Officer Taylor has observed Mary Whittaker violating some
provisions of Chapter 893. (T.4). On the 5
th
day of November, 1998, Officer Taylor encountered
Mary Whittaker by a secluded area known as the hole, which requires one to walk through the
woods or a small path in order to arrive there. (T.5). The area of the hole is well acquainted with
law enforcement activity as locals are known to smoke crack cocaine in the hole after buying it
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off the streets. (T.5). Mary Whittaker was walking out of the hole as Officer Taylor was walking
in. (T.6). Mary Whittaker had a look on her face as if she was high. (T.6). Officer Taylor
proceeded to ask Mary Whittaker, with no command, Mary, what are you doing back here
again? (T.6). In response, Mary Whittaker stopped and stood looking at Officer Taylor. (T.7).
Officer Taylor was dressed in official police uniform with his gun inside his gun belt. (T.7).
Officer Taylor stood facing the east while Mary Whittaker stood facing the west. (T.7). Officer
Taylor positioned himself to the side of the path due to its narrowness and in order not to block
the path. (T.7). Officer Manley proceeded past Officer Taylor while Officer Taylor began a
normal conversation with Mary Whittaker. (T.7). No authoritative language was displayed on
Mary Whittaker by Officer Taylor. (T.7). In a non-threatening manner, one of Officer Taylors
hands were placed on his hip, while the other was placed on his asp. (T.8). Officer Taylor asked
Mary Whittaker, You got anything on you today? (T.8). Whittaker responded, It matters if
Im going to jail or not. (T.8). Officer Taylor has caught Mary Whittaker with a misdemeanor
amount before, in which he decided to leave Mary Whittaker with a warning rather than charge
her. (T.9). Officer Taylor informed Mary Whittaker, Well if you only got a crack pipe or
something like that, then Im just going to give you a ticket. (T.9). Within the area of the hole, a
ticket is commonly known as a Notice to Appear. (T.9). Mary Whittaker then pulled out a crack
pipe from her left pocket and gave it to Officer Taylor. (T.9). Officer Taylor issued Mary
Whittaker a Notice to Appear. (T.10). Officer Taylor placed the crack pipe into evidence. (T.9).
Before Mary Whittaker gave the crack pipe to Officer Taylor, Officer Taylor had not made any
physical contact with Mary Whittaker. (T.10). Also, Officer Taylor did not, at any time, require
Mary Whittaker to take anything out of her pocket. (T.10). After Officer Taylor received the
crack pipe from Mary Whittaker and issued Mary Whittaker a Notice to Appear, Officer Taylor
conducted an incident to arrest search on Mary Whittaker. (T.10). At no point in the entire
conversation between Officer Taylor and Mary Whittaker did Officer Taylor tell Mary Whittaker
she should search herself or he, Officer Taylor, would search her anyway. (T.10). Resulting from
the incident to arrest search, Officer Taylor found copper wire mesh on Whittaker. (T.11). If
Mary Whittaker would have continued to the street after leaving the hole, Officer Taylor would
have let her go. (T.11-12).
Summary of Argument
For an encounter between an individual and a police officer to be considered non-consensual and
in violation of that individuals Fourth Amendment right, the encounter must possess the
elements of a stop. Elements of a stop would include instances such as: a police officer
intimidating and coercing the individual into consent of the encounter between them, a police
officer demanding the individual to produce dialogue, a police officer blocking the individuals
path and restricting the individual from freely leaving the encounter, and a police officer
confining the individual beyond an appropriate amount of time.
According to the instant case, defendant Mary Whittaker filed a Motion to Suppress which was
granted on the grounds that her confrontation with Officer Taylor and Officer Manley was non-
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consensual and classified as a stop. However, according to the facts of the transcript, the
encounter between defendant Mary Whittaker and the two police officers possessed elements of
a consensual encounter. These elements of a consensual encounter are displayed in the following
fact sentences from the transcript. Officer Taylor positioned himself to the side of the path, while
in conversation with defendant Mary Whittaker, in order not to block defendant Mary
Whittakers path. (T.7). Officer Taylor conducted a normal conversation with defendant Mary
Whittaker and at no time did he use authoritative language while speaking with defendant Mary
Whittaker. (T.7). Officer Taylor did not threaten defendant Mary Whittaker nor did he physically
touch defendant Mary Whittaker or force defendant Mary Whittaker to search herself. (T.10).
Defendant Mary Whittaker freely decided, with no instruction from Officer Taylor, to take the
crack pipe out of her pocket and hand it over to Officer Taylor. (T.10).
The encounter between defendant Mary Whittaker and the two police officers was neither non-
consensual nor a stop. Instead, the encounter between defendant Mary Whittaker and the two
police officers was a consensual encounter and was not in violation of defendant Mary
Whittakers Fourth Amendment right. The encounter did not threaten, coerce, intimidate, restrict,
or restrain defendant Mary Whittaker in any way. Defendant Mary Whittaker chose to converse
and remain in contact with the two police officers during the encounter. Therefore, this Court
should reverse the lower courts decision of granting defendant Mary Whittakers Motion to
Suppress.
Argument
THE EVIDENCE FOUND ON MARY WHITTAKER SHOULD NOT HAVE BEEN
SUPPRESSED AS THE FRUIT OF AN UNCONSTITUTIONAL SEARCH AND SEIZURE
BECAUSE THE ENCOUNTER BETWEEN THE POLICE OFFICER AND MARY
WHITTAKER WAS NOT A STOP BUT A CONSENSUAL ENCOUNTER.
The first case discussed is State v. Poole, 730 So.2d 340 (3d DCA, 1999). The factual scenario is
as follows. On November 7, 1997 at approximately 1:10 in the afternoon, Officer Carl Scott,
who was in a marked uniform, along with a deputy chief who was not in a marked uniform, were
on patrol concerning an investigation in a vicinity notorious for narcotics. Officer Scott and the
deputy chief were driving a marked police car. Officer Scott noticed Daile Poole alone on a
street corner. Officer Scott recognized Daile Poole as one whos been involved in narcotics
before but was not suspicious of her actions at that time. Officer Scott and the deputy chief got
out of the police car, approached Daile Poole, and stood about two feet from where Daile Poole
was seated. Officer Scott and the deputy chief informed Daile Poole of who they were and
proceeded to ask Daile Poole if she had any narcotics. Daile Poole replied yes and presented to
the officers a crack pipe retrieved from her pants. The officers arrested Daile Poole and charged
her with the possession of cocaine. Daile Pooles Motion to Suppress the crack pipe and all
statements made by her was granted by the trial court and the case was then appealed. In
conclusion, the court stated the officers did not violate Fourth Amendment by approaching
defendant on street and asking her whether she had drugs, and defendants affirmative response
and voluntary presentation of crack pipe to officers was part of consensual encounter, Poole @
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340. The Court held that the trial court erred in granting the Motion to Suppress and reversed the
decision accordingly because the encounter between Officer Scott, the deputy chief, and Daile
Poole was a consensual encounter and one that was not in violation of Daile Pooles Fourth
Amendment right.
In the instant case, on November 5
th
, 1998, at approximately 2:50 in the afternoon, Mary
Whittaker was walking through an area well known for illegal drug usage, known as the hole,
when she encountered Officer Manley and Officer Taylor. Mary Whittaker was walking out of
the hole while Officer Taylor and Officer Manley were walking into the hole. Officer Taylor has
made numerous narcotic arrests within the area and knows Mary Whittaker to be a crack cocaine
user from past encounters with her. Officer Taylor stopped walking and questioned Mary
Whittaker upon seeing her, asking what she was doing in the area. Officer Taylor was
intentionally positioned to the side of the path leading to the hole, in order not to block the path.
Mary Whittaker first made no oral response and instead stopped walking and looked at him.
Officer Taylor then asked Mary Whittaker if she was carrying anything illegal and whether Mary
Whittaker had something in her pocket. Mary Whittaker responded, It matters if Im going to
jail or not. Officer Taylor informed Mary Whittaker, Well if you only got a crack pipe or
something like that, then Im just going to give you a ticket. Mary Whittaker then pulled out a
crack pipe from her left pocket and gave it to Officer Taylor and was issued a Notice to Appear.
Mary Whittaker filed a Motion to Suppress which was granted by the trial court. The trial court
should not have granted the Motion to Suppress because the encounter that occurred between
Mary Whittaker, Officer Taylor, and Officer Manley was a consensual encounter.
The next case discussed is Florida v. Bostick, 501 U.S. 429 (1991). The factual scenario is as
follows. During a layover in Fort Lauderdale, two officers in uniform, and of the two one
carrying a pistol in a zipper pouch, boarded a bus heading to Atlanta from Miami. Without
articulated suspicion, according to the officers, the officers chose to inspect Bosticks ticket and
identification. The officers returned both to Bostick after verifying the matching of the bus ticket
and Bosticks identification. The officers continued to remain by Bostick, identifying themselves
as narcotic agents in search of illegal drugs. The officers asked Bostick for the consent to search
his luggage and advised him that he had a right to decline consent. Bostick was not threatened
with a gun by the officers during any point of the encounter. Bostick was arrested and charged
with trafficking in cocaine. Bostick filed a motion to suppress the cocaine arguing it was
retrieved in violation of the Fourth Amendment, and the trial court denied the motion. Bostick
appealed the case, resulting in affirmed, but was sent to the Florida Supreme Court by the Florida
District Court of Appeal. The Florida Supreme Court set forth a per se rule, stating it to be
unconstitutional for the police to work the buses, and that Florida police are allowed to
approach, inquire, and ask for consent to search a person in a public place but not on a bus. In
conclusion, the U.S. Supreme Court held that the Florida Supreme Court erred in adopting the
per se rule and reversed and remanded the judgment because the same standards upheld in a
public place are also upheld on a bus. The Court held the encounter between the officers and
Bostick to be a consensual encounter because Bostick consented to the officers search of his
luggage and to the officers advisement of Bosticks right to decline.
In the instant case, Officer Taylor encountered Mary Whittaker by a secluded area known as the
hole, which requires one to walk through the woods or a small path in order to arrive there. At
approximately 2:50 in the afternoon on November 5
th
, 1998, Mary Whittaker was walking out of
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the hole as Officer Taylor was walking in. As Officer Taylor stood to the side of the path, Officer
Taylor proceeded to question Mary Whittaker as both Officer Taylor and Mary Whittaker were
stopped and looking at each other. Officer Taylor was dressed in official police uniform with his
gun inside his gun belt. Officer Taylor asked Mary Whittaker if she had anything on her that day.
After an exchange of responses, Mary Whittaker pulled out a crack pipe from her left pocket and
gave it to Officer Taylor. The conclusion of the instant case should have been a consensual
encounter because according to the consideration of all the circumstances surrounding the
encounter between Mary Whittaker and the officers, the conduct of the officers did not restrict
Mary Whittakers freedom to leave the encounter as Mary Whittaker was free to decline
cooperation with the officers and chose not to do so.
The next case discussed is State v. Livingston, 681 So.2d 762 (2d DCA, 1996). The factual
scenario is as follows. An officer with binoculars observed Livingston receiving money from a
black male and handing that male an object in return. The officer believed the deal to be related
to narcotics as the area was known for such happenings. The officer radioed two other officers,
explaining he had viewed two black males conducting a hand-to-hand deal. Two of the officers
who were dressed in uniform left their unmarked police car and approached Livingston. Without
revealing a firearm or blocking Livingstons path as he walked towards them, the officers
questioned Livingston as to whether he was selling dope. Livingston denied, handed the officers
a tube in which Livingston stated was not real, and told the officers he did not think selling such
was illegal. One of the officers proceeded to search Livingston and did not find anything illegal
on him. At the time, the officers decided not to arrest Livingston due to the unsupportive results
of a field test concerning what was in the tube. On a later date after the substance in the tube was
tested and resulted in cocaine, Livingston was arrested and charged with possession of cocaine.
Prior to trial, Livingston filed a motion to suppress the evidence and the statements he made to
the officers. Livingstons motions were granted in subsequence to the granting of a mistrial. In
conclusion, the court stated, We agree with the state's contention that the trial court erred by
granting the appellee's motions to suppress because the stop was merely a consensual encounter
and not an improper stop and illegal seizure, Livingston @ 764. The case was reversed and
remanded.

In the instant case, on November 5
th
, 1998, at approximately 2:50 in the afternoon, Mary
Whittaker was walking through an area well known for illegal drug usage, known as the hole,
when she encountered Officer Manley and Officer Taylor. Mary Whittaker was walking out of
the hole while Officer Taylor and Officer Manley were walking into the hole. Officer Taylor has
made numerous narcotic arrests within the area and knows Mary Whittaker to be a crack cocaine
user from past encounters with her. Officer Taylor stopped walking and questioned Mary
Whittaker upon seeing her, asking what she was doing in the area. Officer Taylor was
intentionally positioned to the side of the path leading to the hole, in order not to block the path.
Mary Whittaker first made no oral response and instead stopped walking and looked at him.
Officer Taylor then asked Mary Whittaker if she was carrying anything illegal and whether Mary
Whittaker had something in her pocket. Mary Whittaker responded, It matters if Im going to
jail or not. Officer Taylor informed Mary Whittaker, Well if you only got a crack pipe or
something like that, then Im just going to give you a ticket. Mary Whittaker then pulled out a
crack pipe from her left pocket and gave it to Officer Taylor and was issued a Notice to Appear.
Mary Whittaker filed a Motion to Suppress which was granted by the trial court. The conclusion
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of the instant case should have been a consensual encounter because the encounter between Mary
Whittaker and the officers was neither an improper stop nor an illegal seizure but rather an
encounter in which Mary Whittaker consented to the interactions that occurred between her and
the officers.

Conclusion
For the reasons set forth above, plaintiff State of Florida requests this court to reverse the county
courts granting of defendant Mary Whittakers Motion to Suppress and remand the case to the
county court.
Respectfully submitted,




__________________________
Rebecca Slowik, Esq.
Florida Bar Number 000000
Slowik & Slowik, P.A.
1234 Oak Wood Drive
Orlando, FL 32801