McClain v. State, 408 So. 2d 721 (Fla. 1st DCA 1982). · Go Syfert
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McClain v. State, 408 So. 2d 721 (Fla. 1st DCA 1982). Cases Citing This Book View Copy Cite
33 citation events (3 in the last 25 years) across 7 distinct courts.
Strongest positive: State v. Heapy (haw, 2007-01-11)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 11 distinct citers.
discussed Cited as authority (rule) State v. Heapy (2×)
Haw. · 2007 · confidence medium
Additionally, as noted previously, it has been expressed that "[t]he majority of jurisdictions which have addressed the issue of flight have held that the mere act of avoiding confrontation does not create an articulable suspicion." Talbot, 792 P.2d at 493-94 (citing Hinton v. United States, 424 F.2d 876, 879 (D.C.Cir.1969) (ruling that "flight [is not] a reliable indicator of guilt without other circumstances to make its import less ambiguous"); People v. Thomas, 660 P.2d 1272, 1276 (Colo.1983) (en banc) (stating that "an effort to avoid police contact, by itself, is insufficient to support a…
discussed Cited as authority (rule) State v. Thill
S.D. · 1991 · confidence medium
No adverse inference may be drawn from such a desire."); McClain v. State, 408 So.2d 721, 722 (Fla.Dist.Ct.App.1982) (Defendant's "behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to a reasonable suspicion that he was engaged in criminal activity."); People v. Fox, 97 Ill.App.3d 58 , 52 Ill.Dec. 219, 223 , 421 N.E.2d 1082, 1086 (1981) ("[T]he mere fact that the vehicle drove away at the approach of a squad car does not serve as a justifiable basis for conducting a Terry stop."); ...
discussed Cited as authority (rule) State v. Talbot
Utah Ct. App. · 1990 · confidence medium
No adverse inference may be drawn from such a desire.”); McClain v. State, 408 So.2d 721, 722 (Fla.Dist.Ct.App.1982) (Defendant’s “behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to a reasonable suspicion that he was engaged in criminal activity.”); People v. Fox, 97 Ill.App.3d 58 , 52 Ill.Dec. 219, 223 , 421 N.E.2d 1082, 1086 (1981) (“[T]he mere fact that the vehicle drove away at the approach of a squad car does not serve as a justifiable basis for conducting a Terry stop.”); State v. Hathaway, 411 So.2…
discussed Cited as authority (rule) In re D.J.
D.C. · 1987 · confidence medium
See, e.g., Bennett, supra, 514 A.2d at 414-15 (in addition to flight, police observed what appeared to be drug transaction); Lawrence, supra, 509 A.2d at 615 (two men appeared to be casing a liquor store, and partially matched police lookout description); Johnson, supra, 496 A.2d at 594 (type of car, number of men in it, lateness of the hour, location were factors heightened by flight of driver); Tobias, supra, 375 A.2d at 494 (appellant seen selling objects to several persons on street, then fled at sight of police); see also Hinton, supra, 137 U.S.App.D.C. at 390, 424 F.2d at 878 (appellant,…
discussed Cited as authority (rule) In Re DJ
D.C. · 1987 · confidence medium
See Wong Sun v. United States, 371 U.S. 471 , 483 n. 10, 83 S.Ct. 407 , 415 n. 10, 9 L.Ed.2d 441 (1963); Alberty v. United States, 162 U.S. 499, 511 , 16 S.Ct. 864, 868 , 40 L.Ed. 1051 (1896). [5] See, e.g., Bennett, supra, 514 A.2d at 414-15 (in addition to flight, police observed what appeared to be drug transaction); Lawrence, supra, 509 A.2d at 615 (two men appeared to be casing a liquor store, and partially matched police lookout description); Johnson, supra, 496 A.2d at 594 (type of car, number of men in it, lateness of the hour, location were factors heightened by flight of driver); Tob…
discussed Cited as authority (rule) United States v. Johnson (2×)
D.C. · 1985 · confidence medium
And in Stephenson v. United States, 296 A.2d 606 (D.C.1972), cert. denied, 411 U.S. 907 , 93 S.Ct. 1535 , 36 L.Ed.2d 197 (1973), the defendants did not run at the arrival of the police, but were merely observed by the authorities running down a street at 4:30 in the morning, a sufficiently unusual hour to justify a stop for questioning. [8] See People v. Aldridge, 35 Cal.3d 473, 479 , 198 Cal.Rptr. 538, 541 , 674 P.2d 240, 243 (1984) ("The departure of defendant and others from an imminent intrusion [by the police] cannot bootstrap an illegal detention into one that is legal."); McClain v. Sta…
discussed Cited "see" Sinclair v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See McClain v. State, 408 So.2d 721, 722 (Fla. 1st DCA 1982) (defendant's conduct, "taken for its most insidious implications, indicated only that he wanted to avoid police," and did not provide reasonable suspicion of criminal activity).
discussed Cited "see" People v. Thomas (2×)
Colo. · 1983 · signal: see · confidence high
See McClain v. State, 408 So.2d 721 (Fla.App.1982) (where defendant’s behavior indicated only that he wanted to avoid the police, such conduct alone was insufficient for a stop); State v. Kupihea, 59 Hawaii 386 , 581 P.2d 765 (1978) (action of automobile passengers in looking toward police and crouching down not a justification for stop); People v. Fox, 97 Ill.App.3d 58 , 52 Ill.Dec. 219 , 421 N.E.2d 1082 (1981) (driving away at approach of marked police vehicle not a justification for stop); Commonwealth v. Barnett, 484 Pa. 211 , 398 A.2d 1019 (1979) (insufficient basis for stop where defen…
cited Cited "see" State v. Williams
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978), Coladonato v. State, 348 So.2d 326 (Fla.1977), and McClain v. State, 408 So.2d 721 (Fla. 1st DCA 1982).
discussed Cited "see, e.g." United States v. Bennett (2×)
D.C. · 1986 · signal: see also · confidence medium
See also McClain v. State, 408 So.2d 721, 722 (Fla.Dist.Ct.App.) (Defendant’s behavior, “taken for its most insidious implications, indicated only that he wanted to avoid police [and] could not give rise to reasonable suspicion that he was engaged in criminal activity.”), app. dism’d mem., 415 So.2d 1361 (Fla.1982); People v. Terrell, supra, 77 Mich.App. at 679 , 259 N.W.2d at 189 (“Defendant’s furtive gestures may have aroused police officer’s general suspicion, but without some additional specific knowledge of the past of the officer, they were insufficient to justify an intrus…
discussed Cited "see, e.g." Wright v. State
Fla. Dist. Ct. App. · 1982 · signal: see also · confidence medium
Cir.1982); see also McClain v. State, 408 So.2d 721, 722 (Fla. 1st DCA 1982) (referring to this concept as an "encounter"); Schlanger v. State, 397 So.2d 1028, 1029 (Fla. 3d DCA 1981), rev. denied, 407 So.2d 1105 (Fla.) ("cooperative encounter"); Login v. State, 394 So.2d 183, 187 (Fla. 3d DCA 1981) ("encounter"); and State v. Rawlings, 391 So.2d 269, 270 (Fla. 4th DCA 1980), rev. denied, 399 So.2d 1145 (Fla. 1981) ("temporary encounter").
Kelvin David McCLAIN, Appellant,
v.
STATE of Florida, Appellee.
YY-243.
District Court of Appeal of Florida, First District.
Jan 12, 1982.
408 So. 2d 721
Shivers.
Cited by 30 opinions  |  Published

Michael Allen, Public Defender, and Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, and Todd Foster, Legal Intern, for appellee.

SHIVERS, Judge.

McClain pled no contest to a charge of possession of a firearm by a convicted felon, preserving his right to appeal the trial court's denial of his motion to suppress the weapon. Because McClain is correct that the firearm was unlawfully seized, we reverse his conviction.

A Jacksonville sheriff's detective was patrolling in his unmarked car through the west side of the city in the early afternoon when he noticed McClain and a companion. The pair had walked out of a store but then turned around and entered it again. The detective later said he thought he might have "spooked them," so he radioed for assistance and two officers in another car responded. Meanwhile, McClain and his companion emerged from the store and started walking down the sidewalk on the detective's side of the street, approaching him. But before they reached him, they crossed the street and continued on the other sidewalk. The officer said this action "gave me the impression they were avoiding me," and that "at this time I really thought they were up to something."

The detective maneuvered his car behind them, and the backup police car fell in behind him. By this time, the officer said, the pair was walking "briskly ... at a[*722] pretty good pace." When they rounded a corner, the detective sped ahead and pulled up in front of them. The two reversed direction and re-rounded the corner, where they were met by the backup officers. An eventual search of McClain revealed the gun on which his conviction was based.

In this appeal, McClain urges that the weapon should have been suppressed because the initial stop was improper or because the subsequent detainment and search were improper. We find reversible error was committed on the first point, so we will not address the remaining issues.

Initially the state argues that the incident did not amount to a "police stop" but was merely an "encounter" which does not call up the protection of the Fourth Amendment. See United States v. Wylie, 569 F.2d 62 (D.C. Cir.1977); State v. Cahill, 388 So.2d 354 (Fla.2d DCA 1980). The detention of a citizen does not take on constitutional dimension unless "in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, in view of the fact that the officers stalked these suspects, headed them off at the pass and rounded them up, the state's argument is without merit. It is clear that the officers' action "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." 446 U.S. at 552, 100 S.Ct. at 1876, quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). In short, there was a seizure here.

To sustain their stop of McClain the officers were required to have a reasonable suspicion — well founded, articulable and based on objective facts — that he was involved in criminal activity. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). See generally Robinson v. State, 388 So.2d 286 (Fla. 1st DCA 1980). However, the detective here said he stopped McClain and his companion only because they seemed to be avoiding him. We hold that under the circumstances of this case, McClain's behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to a reasonable suspicion that he was engaged in criminal activity. Although we know of no case in which a court has been asked to decide if "pure police avoidance behavior" may justify stop, our decision today is in accord with other opinions which hold that more than a "bare suspicion" of criminal activity is required. See Coladonato v. State, 348 So.2d 326 (Fla. 1976); Stanley v. State, 327 So.2d 243 (Fla. 2nd DCA 1976); Vollmer v. State, 337 So.2d 1024 (Fla. 2nd DCA 1976); Parker v. State, 363 So.2d 383 (Fla. 3rd DCA 1978).

Accordingly, judgment and sentence are REVERSED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.