text:
    Andrea Jo CORNWELL, Appellant, v. Sandra Sue KENNEDY, as Personal Representative of the Estate of Joseph G. Bush; SA-PG Sun City Center, LLC; SA-PG Operator Holdings, LLC f/k/a New Rochelle Administrators, LLC; New Surfside Administrators, LLC d/b/a Cypress Healthcare Management; SA-Master Operator Holdings, LLC; Harris Schwartzberg; Schwartzberg Descendent Trust; Steven Schwartzberg Trust; Harris Schwartzberg Trust; Judith Schwartzberg Trust; Maxwell Stolzberg; Sherill Cummings as to Palm Garden of Sun City, Appellees.
    No. 2D11-105.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.
    Amy L. Miles, E. Patrick Buntz and Kyleen A. Hudson of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Appellant.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee Sandra Sue Kennedy, as Personal Representative for the Estate of Joseph G. Bush.
    No appearance for remaining Appellees.
   CRENSHAW, Judge.

Andrea Jo Cornwell appeals the trial court’s nonfinal order denying a motion to compel arbitration of the claims brought against her by Sandra Kennedy, as personal representative of the Estate of Joseph G. Bush. Because the trial court’s factual findings are not supported by competent, substantial evidence and because it erred as a matter of law in concluding that the arbitration agreement was procedurally unconscionable, we reverse and remand for further proceedings.

Ms. Kennedy brought an action for negligence and wrongful death against several defendants including Ms. Cornwell, as the director of nursing at the nursing home where Ms. Kennedy’s father, Mr. Bush, resided. The defendants filed a motion to abate and compel arbitration, which the trial court denied because it concluded that the arbitration agreement was unconscionable. The trial court found that Fern Bush, who signed the arbitration agreement on behalf of Mr. Bush, “did not have the ability to know and understand the terms of the arbitration agreement.”

As we explain in greater detail in SA-PG Sun City Center, LLC v. Kennedy, 79 So.3d 916 (Fla. 2d DCA 2012), which arises from the same action, the trial court’s factual findings are not supported by the evidence that was presented to the trial court. We conclude based on the totality of the circumstances that Ms. Bush was afforded “a meaningful opportunity to review the arbitration agreement, to obtain guidance, and to accept or reject the terms of the arbitration agreement.” See Tampa HCP, LLC v. Bachor, 72 So.3d 323, 328 (Fla. 2d DCA 2011). Accordingly, the trial court erred as a matter of law in determining that the arbitration agreement was procedurally unconscionable. See Kennedy, 79 So.3d at 917-18 (Fla. 2d DCA 2012). And because we determine that the arbitration agreement was not procedurally unconscionable, we need not reach the issue of substantive unconscionability. See id.; see also Bachor, 72 So.3d at 328.

Reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM. WETHERELL, J.,

license: Public Domain

text:
    Joseph LOGALBO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Collier County BOCC, Appellees.
    No. 1D11-3441.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.

      Douglas L. Wilson of The Wilson Law Firm, Naples, for Appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Joseph Logalbo, claimant, appeals an order of the Unemployment Appeals Commission (UAC), denying him unemployment benefits. Claimant argues the UAC’s order should be reversed because he did not commit misconduct as defined by section 443.036(30), Florida Statutes (2011). The issue is whether claimant committed misconduct because of “excessive unauthorized absenteeism,” and whether claimant attempted to comply with the employer’s directives to supply documentation in accordance with the Family Medical Leave Act (FMLA). Because the appeals referee and the UAC failed specifically to address the reasonableness of claimant’s attempts to comply, we reverse and remand with directions to address this issue.

Misconduct is presumed when the employer establishes excessive unauthorized absenteeism by a claimant. See Mason v. Load King Mfg. Co., 758 So.2d 649, 654 (Fla.2000); Tallahassee Housing Auth. v. UAC, 483 So.2d 413, 414 (Fla.1986). The claimant has the burden to overcome the presumption. Id.

In Blodgett v. Florida Unemployment Appeals Commission, 880 So.2d 814 (Fla. 1st DCA 2004), we addressed a claimant’s attempt to overcome the presumption of misconduct by presenting evidence that she attempted to comply with the employer’s directive to provide documentation concerning the absences. We held where there were reasonable attempts to comply with the directives of the employer, the “conduct did not rise to the level of willful or deliberate disregard of her employer’s interests.” Id. at 815.

In Florida State University v. Florida Unemployment Appeals Commission, 548 So.2d 768, 770-71 (Fla. 1st DCA 1989), another case dealing with a claimant’s attempt to provide documentation concerning absences, we reversed and remanded the denial of benefits because there was no specific finding concerning the claimant’s “good faith effort to comply with the conditions of employment.”

In light of these cases, we find the appeals referee must make a specific factual determination concerning the reasonableness of a claimant’s effort to comply. Here, the focus of the appeals referee’s order was whether claimant was properly advised on how to comply with the FMLA and whether he actually complied. There is no specific determination concerning the reasonableness of claimant’s efforts to comply. In light of Blodgett and Florida State University, where a claimant presents evidence concerning an attempt to comply, such a specific finding is required. We, therefore, remand for the appeals referee to address this issue.

We also feel it is incumbent upon us to address the issue of attorney’s fees. Claimant’s attorney has moved for fees pursuant to section 443.041(2)(b), Florida Statutes (2011), which provides:

An attorney at law representing a claimant for benefits in any district court of appeal of this state or in the Supreme Court of Florida is entitled to counsel fees payable by the department as set by the court if the petition for review or appeal is initiated by the claimant and results in a decision awarding more benefits than provided in the decision from which appeal was taken. The amount of the fee may not exceed 50 percent of the total amount of regular benefits permitted under s. 443.111(5)(b) during the benefit year.

The UAC concedes that if claimant prevails and is awarded more benefits than he would have received under the decision below, attorney’s fees should be granted.

Although there appears to be no case from this court outlining the procedure for awarding attorney’s fees in unemployment cases, the Second and Third Districts have different methods by which they proceed. In Riveras v. Unemployment Appeals Commission, 884 So.2d 1143, 1146 (Fla. 2d DCA 2004), the court directed that if the parties could stipulate to an amount of fees, they should file their stipulation with the court. If not, the appeals referee would hold an evidentiary hearing and file a recommended order with the court consistent with the principles announced in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Id.

However, the Third District in Cheung v. Executive China Doral, Inc., 638 So.2d 82, 84-85 (Fla. 3d DCA 1994), noted the statute directs the court to set a fee. The court found it would, by a separate order, appoint a commissioner to hear evidence, make findings under Rowe, and render a recommendation regarding attorney’s fee orders. Id. We find in light of the fact that the appeals referee has already heard this case, the procedure adopted by the Second District in Riveras promotes judicial efficiency. Therefore, if claimant is ultimately successful in obtaining benefits, and the parties cannot reach an agreement as to fees, the appeals referee shall hold an evidentiary hearing and file a recommended order with this court regarding fees.

REVERSED and REMANDED.

WOLF and CLARK, JJ., concur; WETHERELL, J., dissents with opinion.

WETHERELL, J.,

dissenting.

I respectfully dissent from the decision to remand this case to the appeals referee for additional fact-finding. I would affirm the denial of Claimant’s request for unemployment compensation benefits because the referee’s decision includes more than enough findings to support the conclusion that Claimant was discharged for misconduct connected with work and, thus, is disqualified from receiving unemployment compensation benefits.

Claimant was absent from work for six weeks on the basis of an undocumented medical condition that allegedly precluded him from working. The employer did not believe that Claimant was medically unable to work, nor, it appears, did the appeals referee because she resolved all conflicts in the evidence in favor of the employer. The referee found that that Claimant failed to document his alleged medical inability to work even though he was familiar with the requirements of the employer’s FMLA policy, as evidenced by his past compliance with the policy. The record fully supports these findings, which in turn, support the referee’s conclusions that Claimant’s actions “were not in the best interest of the employer” and “arose to the level of misconduct.”

There is no need to remand for additional fact-finding; the omitted finding deemed necessary by the majority is subsumed in the affirmative determination of misconduct and in the ultimate determination that Claimant was disqualified from receiving unemployment compensation benefits. Indeed, under the Mason and Tallahassee Housing Authority cases cited by the majority, the only way the referee could have found Claimant eligible for benefits after rejecting the claim that his extended absence was implicitly authorized by his employer was if the referee affirmatively found that Claimant rebutted the presumption of misconduct arising from his excessive unauthorized absenteeism. Because the referee’s decision contains no such finding, it follows that Claimant did not rebut the presumption that he was discharged for misconduct.

The other cases cited by the majority do not support reversal here. The Florida State University case is distinguishable because it was a “voluntary quit” case, not a “misconduct” case based on excessive unauthorized absenteeism. Blodgett was an excessive unauthorized absenteeism case, but it is factually distinguishable from this case.

In Blodgett, the employee’s extended absence was expected due to her pregnancy and, thus, her failure to submit the required leave forms was merely an “inconvenience” to the employer, see 880 So.2d at 816; by contrast, in this case, there was no evidence that Claimant’s extended absence was expected by the employer when he left his supervisor a voicemail stating that he intended to take FMLA leave without giving any indication of how long the leave might last, and the referee found that Claimant’s actions “were not in the best interest of the employer.” Also, in Blod-gett, the court noted that there was no evidence of dishonesty or malingering by the employee, see id.; by contrast, in this case there was no evidence other than Claimant’s self-serving testimony (which was rejected by the referee) that Claimant was actually medically unable to work or under the care of a physician at any point during his absence.

In sum, because the record fully supports the findings made by the appeals referee and because those findings support the referee’s legal conclusions and ultimate determination that Claimant is disqualified from receiving unemployment compensation benefits, I would affirm the order on appeal. Moreover, because the remand mandated by the majority will serve no meaningful purpose except to give Claimant a second opportunity to establish entitlement to benefits that he is clearly disqualified from receiving due to his excessive unauthorized absenteeism, I respectfully dissent.

      . On December 8, 2010 (the day after he failed a drug test required as part of his employment), Claimant left his supervisor a voicemail stating that he was not coming into work and that he intended to take FMLA leave. Claimant did not return to work until January 21, 2011. The record reflects that had Claimant not been fired for his extended unauthorized absence, he would have been suspended for two weeks upon his return to work based on the failed drug test.

      . Claimant claimed that at least a portion of his absence was based on a "flare-up” of his multiple sclerosis (MS), for which he had previously taken FMLA leave. In support of this claim, Claimant referred to an undated document from Dr. Novak stating that Claimant's MS is a "lifelong” condition and that significant flare-ups of the condition "may” require Claimant to miss work or affect his ability to perform his job. However, as the employer's witness explained at the hearing, there is nothing in this document indicating that any portion of Claimant's six-week absence from work was, in fact, related to a flare-up of his MS. Moreover, Claimant testi-fled that another physician determined that his condition was actually the result of panic attacks, and not a flare up of his MS. However, none of the documentation presented to support this claim stated that the panic attacks required the extended leave from work taken by Claimant.

      . This is not the first time Claimant failed to document his alleged inability to work due to a medical condition. The record reflects that Claimant was disciplined in 2008 for failing to provide a doctor's note for a day that he claimed to be sick.

      . Although I disagree with the majority’s disposition of this case on the merits, I agree based on this disposition that Claimant’s motion for appellate attorney’s fees should be granted. I also agree that the motion should be remanded to the referee for consideration in accordance with the procedure set forth in Riveras. It should be noted that the motion is only provisionally granted because it is possible that on remand the referee and the UAC may again determine that Claimant is not entitled to unemployment compensation benefits, and under those circumstances, Claimant will not be entitled to any attorney’s fees for this appeal. See § 443.041(2)(b), Fla. Stat. (providing for an award of fees only if the appeal "results in a decision awarding more benefits than provided in the decision from which appeal was taken”).


author: BENTON, C.J.

text:
    Joseph Anthony CORRAO, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4781.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Joseph Corrao appeals his convictions for leaving the scene of a crash involving personal injury and for two counts of driving under the influence involving damage to person or property. He contends that the trial court abused its discretion when it denied the motion for mistrial he made on grounds the prosecutor asked him, in the jury’s presence, whether he had offered to plead guilty in exchange for reduced charges. We agree and reverse.

Certain basic facts were not in dispute at trial: On the night of January 4, 2009, a white van, registered to Mr. Corrao, swerved into oncoming traffic and hit a small white car head on. As a result, the driver of the white car ended up with broken teeth and a skull fracture, and his passenger suffered collapsed lungs, a fractured sternum, and seven broken ribs. Pictures of the crash scene showed the passenger door of the van open. Mr. Cor-rao was found lying on the ground in the woods about 100 feet away, wearing blue shorts and a shirt, unresponsive and smelling of alcohol. Tests of samples taken from Mr. Corrao at the scene revealed blood alcohol levels of .366 and .364 grams per 100 milliliters.

Mr. Corrao’s defense at trial was that he was not driving the van at the time of the accident. There was ample evidence the other way, and there is no contention on appeal that the evidence is insufficient to support the convictions. But the evidence at trial was in conflict as to the number of the white van’s occupants — whether one or two — and as to who was driving the van.

Mr. Corrao testified that, on the day of the accident, after drinking beer and watching football at his mother’s house, he went to Michael Case’s house at about four-thirty to work on a trampoline; that Billy Mitchell drove him back to his mother’s house after an hour and a half, where they drank more beer and rum; that, about an hour later, his friend Will Biell-ings drove him to Troy Baxter’s house, with Billy Mitchell following behind in his own truck; and that they left Troy Baxter’s house at about eight-fifteen or eight-thirty to go to a convenience store.

On the trip to the convenience store, Mr. Corrao testified, Mr. Biellings was driving his van and he sat in the passenger’s seat, while Billy Mitchell again followed in his own truck. He testified he did not remember leaving the convenience store, and that the next thing he remembered was Mr. Biellings screaming at him, unlocking the passenger door, throwing him onto the ground, and running off. Later Donald Neilson helped him move away from the road and into the trees for safety reasons, he testified.

Corroborating this version of events in important particulars, Billy Mitchell testified that in the early afternoon on January 4, he was at Mr. Case’s house with Mr. Corrao and a person named Will, until they left (in two vehicles) for Mr. Baxter’s house. When they later left Mr. Baxter’s house, Will drove Mr. Corrao’s van with Mr. Corrao in the passenger seat to Mr. Corrao’s mother’s house, and then to a convenience store. There, he testified, Mr. Corrao did not go into the convenience store, and, when he came out, he saw Mr. Corrao slumped over in the passenger seat of the van.

Troy Baxter testified that Mr. Corrao came to his house the day of the accident with Billy Mitchell and a person he did not know. They stayed for about thirty minutes, and it was dark when they left. He testified that he saw Mr. Corrao in the passenger seat of the van as they left.

Donald Neilson testified that he was not a friend of Mr. Corrao but knew him and his business. He testified that when he came upon the accident, he saw the passenger door open and saw Mr. Corrao get out of the van, and then he saw another person get out of the van. He testified that he told Mr. Corrao, who was wearing a light-colored button-up shirt and brown or black pants, to sit down in the grass out of the road.

In the state’s rebuttal case, Trooper Birchard testified that Mr. Corrao telephoned after the accident and that, when he returned the calls, Mr. Corrao said “that he wasn’t driving, that — he had an excuse for everything. Just it wasn’t him, it was somebody else driving, but he couldn’t tell me who it was.”

Against a background of conflicting evidence, we review the trial court’s ruling on the defense motions for mistrial for abuse of discretion. See Dessaure v. State, 891 So.2d 455, 464-65 (Fla.2004) (“An order granting mistrial is required only when the error upon which it rests is so prejudicial as to vitiate the entire trial, making a mistrial necessary to ensure that the defendant receives a fair trial.” (citing Cole v. State, 701 So.2d 845, 853 (Fla.1997))).

When Mr. Corrao testified that he told the investigating officers that Mr. Biellings was driving his van, the prosecutor asked: “Do you recall calling Trooper Birchard and telling him, look, I’ll plead to the DUI as long [as] it’s a misdemeanor?” Defense counsel objected, and approached the bench where the following exchange occurred:

MR. PAYNE: Your Honor, I’m going to move for a mistrial. This prosecutor has brought into play in front of the jury an offer to plea[d] by the defendant. That is clearly grounds for a mistrial.
MR. DURRETT: Judge, he was not formally charged at that time. He just kept calling and calling FHP talking to them and trying to figure out what—
THE COURT: He called them.
MR. DURRETT: Correct.
THE COURT: And he wasn’t in custody.
MR. DURRETT: Correct.
THE COURT: Talking to them about how he would plea[d] to something.
MR. DURRETT: Correct.
MR. PAYNE: He knew he was under investigation.
THE COURT: He wasn’t in custody.
MR. PAYNE: This is not a Miranda issue, this is an issue of an offer to plea[d].
THE COURT: Straight from the defendant, nobody talking him into it, him calling and asking. Overruled.

Once more in front of the jury, the prosecutor asked again “you called Trooper Birchard, didn’t you, and tell him — and told him that you would plea to this so long as it was a misdemeanor DUI, didn’t you?” and Mr. Corrao responded, “No, I did not.” The defense renewed its motion for mistrial before closing arguments, and the trial court denied the renewed motion.

Under section 90.410, Florida Statutes (2010), “[e]vidence of ... an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.” See also Fla. R.Crim. P. 3.172(i). These rules “were ‘adopted to promote plea bargaining by allowing a defendant to negotiate without waiving fifth amendment protection,’ ” and “were intended to promote ‘free and open discussion’ between the defense and the State ‘during attempts to reach a compromise.’ ” Calabro v. State, 995 So.2d 307, 313 (Fla.2008) (quoting Groover v. State, 458 So.2d 226, 228 (Fla.1984)).

If the prosecutor’s question to Mr. Cor-rao concerning his offering to “plead to the DUI as long [as] it’s a misdemeanor” is viewed as communicating evidence of an offer to the jury, it was clearly inadmissible under section 90.410 as an offer to plead guilty. See Russell v. State, 614 So.2d 605, 609 (Fla. 1st DCA 1993) (contrasting the statements allegedly made in connection with plea negotiations in United States v. Robertson, 582 F.2d 1356 (5th Cir.1978), with “Russell’s only statement [which] was his offer not to go to trial in return for sentencing concessions .... [that] was plainly inadmissible under the Robertson analysis.”).

Admitting evidence of an offer to plead guilty over objection is grounds for reversal. We reversed in Russell, because the trial court admitted an unsolicited letter from the defendant the prosecutor received the day before trial that read: “If I could be sentenced under the regular offense and you agree to give me three years and all my county time I will take it and won’t go to trial. If you agree to do this. I look forward to hearing from you soon.” 614 So.2d at 606. The Second District ruled similarly in McCray v. State, 760 So.2d 988, 988-89 (Fla. 2d DCA 2000), where the trial court let in evidence a letter McCray sent the state attorney shortly before trial in which he offered to plead guilty to both counts against him in exchange for time to see his dying mother before going to prison.

Viewed as merely insinuating that the appellant had offered to plead guilty, the prosecutor’s question posed the same threat to a fair trial. “It is axiomatic that counsel cannot ask questions of a witness that have no basis in fact and are merely intended to insinuate the existence of facts to a jury.” Del Monte Banana Co. v. Chacon, 466 So.2d 1167, 1172 (Fla. 3d DCA 1985). See also Duncan v. State, 776 So.2d 287, 288-89 (Fla. 2d DCA 2000) (“ ‘[T]he predicate questions to impeachment must be asked in good faith, that is, with the intent and ability to later prove (if it is not admitted) that the witness gave some statement inconsistent with his or her present testimony. The reason that such proof must be forthcoming is because the predicate question — e.g., “Didn’t you tell me ... ?” or “Didn’t you say to so-and-so” — is itself testimonial, that is, the question suggests that there is a witness who can testify that such a statement was made. When this suggested witness is not actually called to give the impeaching testimony under oath, all that remains before the jury is the suggestion — from the question — that the statement was made. When that occurs, the conclusion that must be drawn is that the question was not asked in good faith, and that the attorney’s purpose was to bring before the jury inadmissible and unsworn evidence in the form of his questions to a witness.’ ” (quoting Tobey v. State, 486 So.2d 54, 55 (Fla. 2d DCA 1986))).

A prosecutor’s question not supported by the evidence can be highly prejudicial. See Hunter v. State, 973 So.2d 1174, 1176 (Fla. 1st DCA 2007) (holding trial court should have granted Hunter’s motion for mistrial where prosecutor asked a question that “implied that he was directly involved in a similar crime”); Holmes v. State, 757 So.2d 620, 621-22 (Fla. 3d DCA 2000) (deeming prosecutor’s “tell[ing an inadmissible fact to] the jury through a leading question” improper and highly prejudicial); Gonzalez v. State, 572 So.2d 999, 1000 (Fla. 3d DCA 1990) (reversing because the prosecutor asked the defendant “whether it was a fact that he was hired to ‘get rid of the alleged [abduction] victim”). But cf. Straight v. State, 397 So.2d 903, 908-09 (Fla.1981) (“inconceivable” that prosecutor’s improper question to defendant about unrelated criminal activity affected the verdict, in light of “overwhelming evidence against appellant” and fact that improper comment did not undermine any particular theory of the defense); Carpenter v. State, 664 So.2d 1167, 1169 (Fla. 4th DCA 1995) (“We cannot agree with defendant that the court should have granted defendant’s motion for mistrial ... because the fact insinuated by the question was not so prejudicial as to require a mistrial.”).

In the present case, the prosecutor’s question had no support in any evidence offered at trial. Mr. Corrao testified that he had not offered to plead guilty to a lesser included offense. Trooper Birch-ard’s rebuttal testimony actually supported Mr. Corrao’s version of events: He testified that Mr. Corrao told him that he was not driving at the time of the accident. The “facts” insinuated by the question — a purported offer to admit he was guilty of a lesser included driving offense — went directly to the heart of Mr. Corrao’s defense — that he was not even driving at the time of the crash. We cannot say that the error was harmless beyond a reasonable doubt, or that denial of the motions for mistrial was not an abuse of discretion.

Reversed and remanded.

VAN NORTWICK and SWANSON, JJ., concur.

      . For the state, Phillip Black testified that he had to swerve to keep the white van from hitting him, then saw the accident in his rear-view mirror. He only saw one person inside the van, the driver, whom he described as a white male, "stocky, short, military cut.” He continued driving down the road to get help, and by the time he returned to the scene, the driver of the van was gone. Tammy Lans-ford, Mr. Corrao’s ex-wife, testified that she had seen Mr. Corrao driving his van around four-thirty or five o'clock on the day of the accident. Christopher Glenn, the driver of the white car, testified that after the accident, he saw only one person inside the van, whom he saw climb out of the driver’s side window and step onto the hood of his car. He described the person as short and stocky, with short hair. The person had a phone in his hand, but he did not say anything.
      Cheryl Stokes testified that she came across the accident shortly after it occurred, and pulled over to help. She testified that she saw only one person in the van, a man sitting behind the wheel, who locked eyes with her but did not respond to her questioning. She described him as "on the heavy side,” with hair to his ears, and identified Mr. Corrao as the person she saw behind the wheel. Ms. Stokes testified that she saw the man climb out of the passenger side window, climb across the hood of the white car, and stand in front of the van. She did not notice if the passenger door to the van was open when she arrived on the scene. She was later called back to the scene after Mr. Corrao was found in the woods, and she identified him as the man she saw behind the wheel of the van. Trooper Mark Birchard testified that he was called out to the scene to investigate the crash. While he was on the scene, a friend of Mr. Corrao, Michael Case, came to the scene and started yelling for Mr. Corrao. Trooper Birchard testified that Mr. Case came to the scene of the accident and told him that he was worried about Mr. Corrao because he had been drinking and was driving by himself. Trooper Jim Taylor testified that when Mr. Case came to the scene of the accident, he told him that Mr. Corrao had just left his house driving the van. He testified that Ms. Stokes told him that she saw the driver of the van get out of the passenger door.

      . Michael Case testified that, on the afternoon of January 4, Mr. Corrao was at his house with Billy Mitchell helping put together a trampoline and that, when the two men left his house in Mr. Corrao's van, he did not see who was driving. Later, when he came upon the scene of the accident, he called appellant's cell phone, Mr. Case testified, and heard it ringing in the van.

      . In United States v. Robertson, 582 F.2d 1356 (5th Cir.1978), the Fifth Circuit rejected Robertson’s argument that certain admissions he and a co-defendant made to Drug Enforcement Administration agents after being arrested — they admitted their involvement in hopes of securing leniency for the women with them — should have been excluded as statements connected with plea negotiations.
      The court held that, in determining whether a discussion should be deemed a plea negotiation, “[t]he trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.” Id. at 1366.


author: THOMAS, J.

text:
    FALCON FARMS and Travelers Casualty & Surety Co., Appellants/Cross-Appellees, v. Maria ESPINOZA, Appellee/Cross-Appellant.
    No. 1D11-2721.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Dinah S. Stein, Steven H. Preston, Erik P. Bartenhagen and Michael S. Hirsch-kowitz of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellants/Cross-Appel-lees.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee/Cross-Appellant.
   THOMAS, J.

In this workers’ compensation case, Claimant alleged that on December 20, 2009, she developed a bump on her finger from using a hand-held “gun” to put dates on flower bouquets for her Employer. Employer, under a managed care arrangement, provided treatment with a doctor who opined the condition was not work related. Claimant filed a petition for benefits seeking a change in primary care physician. The Judge of Compensation Claims (JCC) awarded the change of physician and simultaneously denied compens-ability of the accident. The Employer/Carrier (E/C) argues on appeal that Claimant is not entitled to a change of physician because her condition is nonoccupational. Claimant cross-appeals, arguing the JCC’s finding of noncompensa-bility is legally inconsistent with his award of a change of physician. For the reasons below, we reverse the order on appeal and affirm the cross-appeal.

Addressing the cross-appeal first, Claimant has not shown the JCC erred in ruling the accident not compensable. The sole basis of Claimant’s challenge on compensa-bility is that the order is incongruous with the award of a change of physician. Claimant did not present this argument to the JCC — not even on rehearing, once the basis of the JCC’s ruling was clear; therefore, Claimant did not preserve such an error for appellate review. See Jellison v. Dixie S. Indus., Inc., 857 So.2d 365, 366 (Fla. 1st DCA 2003) (holding arguments not raised before JCC are not preserved for review); Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234 (Fla. 1st DCA 2008) (holding if error is one that first appears in final order, aggrieved party must bring it to judge’s attention by filing motion for rehearing).

Given that the accident is not compensa-ble, the E/C’s argument on appeal has merit. Section 440.13(2)(f), Florida Statutes (2009), provides that “[u]pon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident.” Section 440.134(10)(c), Florida Statutes (2009), likewise provides that a managed care arrangement must grant the right to “one change to another provider within the provider network as the authorized treating physician during the course of treatment for a work-related injury, in accordance with the procedures provided in s. 440.13(2)®.” The plain language of section 440.134(10)(c) requires the injury to be a “work-related injury.” The JCC here found Claimant presented no “persuasive medical evidence” that an injury arose out of employment, and Claimant does not challenge that finding. It follows that the JCC erred in awarding a change of physician.

AFFIRMED in part and REVERSED in part.

DAVIS and RAY, JJ., concur.


author: PER CURIAM.

text:
    Michelle WADE, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES; Our Kids, Inc., Respondents.
    No. 1D11-6034.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Bernard Perlmutter and Robert A. La-tham, Coral Gables; and Angela Vigil of Baker & McKenzie, LLP, Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlyne Patterson, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied without prejudice to presenting the argument set forth therein in the pending appeal of the agency’s final order. See Noack v. Blue Cross and Blue Shield of Florida, Inc., 872 So.2d 370 (Fla. 1st DCA 2004) (where an adequate remedy can be afforded on plenary appeal, mandamus relief is unwarranted).

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Olimpia Boveda DEPENA, individually and as representative of Depena & Depena, P.A., and Olimpia Boveda Depena, L.L.C., Appellants, v. Serafin MOLINA, Advanced Masonry Systems and PMA Group, Appellees.
    No. 1D11-6445.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Bill McCabe, Longwood, for Appellants.
    Michael E. McCabe, Fort Myers, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s December 19, 2011, order to show cause, we conclude the order on appeal is a non-appealable, nonfinal order. See Fla. R.App. P. 9.180(b)(1). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

VAN NORTWICK, THOMAS and ROWE, JJ., concur.


text:
    William M. CLARK, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Bed Bath & Beyond, Inc., Appellee.
    No. 1D12-0087.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    William M. Clark, pro se, Appellant.
    A. Robert WOraley, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

To invoke the Court’s jurisdiction in a timely manner, the appellant must file a notice of appeal within 30 days (not 30 business days) of rendition of the order on appeal. Fla. R.App. P. 9.110(b). Here, the appellant’s notice was filed more than 30 days after rendition. The filing of a notice of appeal is jurisdictional. Florida courts are required to dismiss an appellate proceeding if it was not initiated within the applicable time limit. See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003). Therefore, the Court’s jurisdiction was not timely invoked and the appeal must be dismissed as untimely.

DISMISSED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


author: PALMER, J.

text:
    Ryan TROUT, Appellant, v. James APICELLA, Donald Medlar, et al., Appellees.
    No. 5D10-2015.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.

      Henry G. Gyden and Lisha Bowen of Swope, Rodante P.A., Tampa, and Ronald K. Zimmet, Jr., of Zimmet & Quarles, P.L., Daytona Beach, for Appellant.
    Caryn L. Bellus of Kubicki Draper, P.A., Miami, for Appellee GEICO General Insurance Company.
    No Appearance for James Apicella and Donald Medlar.
   PALMER, J.

Ryan Trout appeals the trial court’s order entering summary judgment in favor of GEICO General Insurance Company. Determining that the trial court incorrectly interpreted the insurance policy at issue, we reverse.

Trout was injured while riding in a truck driven by his uncle and owned by a third person. The truck was pulling a trailer owned by yet another person. As the truck and trailer were travelling down I-95, the trailer began to sway. Ultimately, the driver lost control of the truck and trailer. They went into a spin, the trailer disconnected, and the truck impacted a guardrail. No other vehicles were involved in the accident.

The truck was insured by GEICO, but the trailer was not listed on any insurance policy. Trout sought uninsured motorist (UM) benefits under the GEICO policy, asserting that the trailer was uninsured. GEICO denied the claim, stating that UM coverage did not apply because the accident involved a single vehicle. Trout then filed suit against GEICO, and both parties moved for summary judgment. The trial court concluded that, under the GEICO policy, the trailer was part of an insured auto (the truck) and, thus, was not uninsured for purposes of UM coverage. This conclusion was incorrect in light of the plain language of the GEICO policy.

The standard of review for a trial court’s interpretation of an insurance policy is de novo. State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So.2d 547, 549 (Fla. 5th DCA 2004). Insurance policies must be construed according to their plain language. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003); Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). To determine whether the trailer was uninsured for purposes of UM coverage, we must analyze (1) whether the trailer was a separate auto, and if so, (2) whether the trailer came within the definition of “uninsured auto.”

First, the GEICO policy treats a trailer as a separate auto for purposes of UM coverage. The policy’s liability section defines “non-owned auto” and “owned auto” to include a trailer, and the UM section incorporates these definitions by reference.

GEICO argues that the policy treats a trailer as part of the vehicle to which it is attached. GEICO relies on the following provision in the policy’s liability section: CONDITIONS

2. TWO OR MORE AUTOS
If this policy covers two or more autos, the limit of coverage applies separately to each. An auto and an attached trailer are considered to be one auto.

However, the structure of the policy makes clear that this “two or more autos” condition in the liability section does not apply to the UM coverage. Sections I through IV of the policy each addresses a different type of coverage (liability, personal injury protection, physical damage, and UM), and each contains its own “Conditions” subsection. Language in these subsections makes clear that the conditions apply only to their respective coverages. Section V then sets forth general conditions applicable to all coverages. See Anderson, 756 So.2d at 33 (“[I]f [the insurer] had intended to treat the two separately covered vehicles as a single covered automobile when operated in tandem, it could have drafted the policy to achieve that result. By failing to do so, [the insurer] cannot now take the position that the tractor-trailer rig should be treated as one automobile.”)

Second, the trader came within the definition of “uninsured auto.” The UM section provides:

LOSSES WE PAY
Under the Uninsured Motorists coverage we will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured auto arising out of the ownership, maintenance or use of that auto.

(Emphasis added.) The UM section defines “uninsured auto” by stating, in relevant part, “The term ‘uninsured auto’ does not include ... an insured auto.... ” In turn, the section defines “insured auto” as “an auto ... described in the declarations and covered by the Bodily Injury Liability coverage of this policy....” (Emphasis added.) This use of “and” means that an “insured auto” is one that is both described in the policy’s declarations and covered by the policy’s liability section. The trailer was not described in the declarations because it was owned by an unrelated third party. Thus, since the trailer did not meet the definition of “insured auto,” it was an “uninsured auto.”

Therefore, under the plain language of the policy, the trailer was uninsured for purposes of UM coverage. Accordingly, we reverse and remand for entry of a partial summary judgment for Trout on the issue of whether the trailer was an “uninsured auto.”

REVERSED and REMANDED.

SAWAYA, J., and BLACKWELL, A.L., Associate Judge, concur.


author: JACOBUS, J.

text:
    Edward C. HODGE, Oliver W. Cowart, et al., Appellants, v. Scott W. CICHON, Andrew C. Grant, et al., Appellees.
    No. 5D11-819.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.
    Terence J. Kann of Terence J. Kann, P.A., Gainesville, for Appellants, Edward C. Hodge, Oliver W. Cowart and Merrill M. Henry.
    Michael R. D’Lugo and Richard E. Ramsey of Wicker, Smith, O’Hai'a, McCoy & Ford, P.A., Orlando, for Appellees, Scott W. Cichon, Andrew C. Grant, J. Lester Kaney and Cobb & Cole, P.A.
   JACOBUS, J.

Appellants, the plaintiffs below, appeal the lower court’s orders awarding attorney’s fees and costs to Appellees, the defendants below, pursuant to section 768.79, Florida Statutes. The attorney’s fees award was based on the lower court’s order entering final summary judgment in favor of Appellees. We have since reversed the final summary judgment and remanded for further proceedings. See Hodge v. Cichon, 78 So.3d 719 (Fla. 5th DCA 2012). Under these circumstances, we must also reverse the fee award entered in Appellees’ favor. See Hickman v. Barclay’s Int'l Realty, Inc., 12 So.3d 327 (Fla. 4th DCA 2009) (reversing order granting attorney’s fees pursuant to section 768.79 where appellate court reversed trial court’s order granting final summary judgment in favor of appellees); City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006) (“[Wjhere an award of attorney’s fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award.”).

REVERSED.

EVANDER and COHEN, JJ., concur.


author: CLARK, Justice.

text:
    STATE of Louisiana v. Terrance A. MARTIN.
    No. 2011-K-0082.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      James D. Caldwell, Atty. Gen., John F. DeRosier, Dist. Atty., Carla Sue Sigler, Asst. Dist. Atty., for Applicant.
    Louisiana Appellate Project, Paula Cor-ley Marx, William Jarred Franklin, Sr., for Respondent.
   CLARK, Justice.

hWe granted a writ to consider whether the defendant was seized when a police officer asked for his identification in order to check for outstanding warrants, and then asked the defendant if he had anything illegal on his person while retaining the defendant’s identification. Under the scant facts presented here, we find there was nothing in the conduct of the officer which decisively changed the consensual nature of the officer’s brief encounter with the defendant such that Fourth Amendment protections were implicated. Thus, we find the district court did not abuse its discretion in denying the defendant’s motion to suppress the drugs which the defendant voluntarily admitted having on his person.

FACTS AND PROCEDURAL BACKGROUND

The facts of this encounter were adduced at a suppression hearing held in this matter, during which Cpl. Matthew Gibbs of the Calcasieu Parish Sheriffs Office described his encounter with the defendant, Terrance A. Martin, on August 16, 2009. On that date, the officer saw the defendant in the parking lot of the Five Star convenience store in Moss Bluff, Louisiana, as the officer was walking in, and the defendant was walking out. The officer was in uniform. The two men knew each other and Cpl. Gibbs asked the defendant how he was doing. Because he knew that the defendant “had been in some trouble in Lake Charles,” the officer asked the | defendant for his identification to check for outstanding warrants. The two men talked for a little while. Cpl. Gibbs noticed the defendant was nervous and sweating profusely, unusual behavior not characteristic of their previous encounters at football games and other civic functions when their paths would cross and they would “laugh, joke, cutup.” Presumably while retaining the defendant’s identification, and based on his observations of Martin’s uncharacteristic behavior, Cpl. Gibbs inquired whether the defendant had anything illegal on him. The defendant replied he had four Soma pills in his pocket. The officer retrieved the pills from the defendant’s pocket and placed him under arrest for possession of Carisoprodol, a Schedule IV controlled dangerous substance. At some point in the encounter, which is not further described, the officer ran a warrant check on the defendant which proved negative.

On October 21, 2009, the defendant was charged by bill of information with possession of Carisoprodol (Soma), a violation of La. R.S. 40:969(C). The defense filed a motion to suppress, combined with a request for a preliminary examination, as to this charge and other charges pending against the defendant. The motions in these cases, as well as a probation revocation, were combined for hearing. After a hearing held on February 10, 2010, the district court found probable cause for the instant charge and denied the defendant’s motion to suppress. The district court also revoked the defendant’s probation for prior convictions and imposed the previously suspended sentence.

Immediately following this ruling, the defendant pleaded guilty to the instant charge, reserving his right to contest the district court’s ruling on the suppression motion pursuant to State v. Crosby, 338 So.2d 584 (La.1976). As part of the plea agreement, the state dismissed the charges pending in the unrelated docket number and agreed not to file a habitual offender bill against the defendant. The district court |3then sentenced Martin to five years imprisonment at hard labor, to run concurrently with the sentences imposed after the probation revocation.

On appeal, Martin argued the district court erred in denying his motion to suppress and in imposing an excessive sentence. As to the suppression motion, the defendant contended Cpl. Gibbs did not have reasonable suspicion a crime had been, was being, or was about to be committed at the time the officer asked for his identification, ran the warrant check or continued to ask him questions. Because the officer had no reason to detain Martin or to question him, the defendant argued on appeal that any evidence seized as a result of the illegal detention should have been suppressed as fruit of the poisonous tree pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

A majority of the court of appeal panel agreed with Martin. See State v. Martin, 2010-0588 (La.App. 3 Cir. 12/8/10); 54 So.3d 111. The appellate panel majority and the dissent had no disagreement that Cpl. Gibbs did not initially “seize” Martin by stopping at the threshold of the Five Star to engage him in conversation. However, for the majority of the panel, the crux of the case was the officer’s decision to retain Martin’s identification for purposes of running a warrant check. Because the officer had gone “a step further and detained defendant to check for outstanding arrest warrants,” the majority concluded the casual conversation ended “because the Defendant was no longer free to disregard Corporal Gibbs’ questions and walk away.” Id., 2010-0588, p. 5; 54 So.3d at 115. The appellate majority thus held, at that point, “[t]he stop became forcible, an intrusion upon the Defendant’s liberty and/or privacy, when Corporal Gibbs asked the Defendant for his identification to check for outstanding warrants.” Id. Finding the officer’s testimony “did not include any articulable facts or particularized suspicions about the Defendant’s involvement |4in criminal conduct prior to detaining him,” the appellate majority held the officer had an insufficient basis under La.C.Cr.P. art. 215.1(A) for detaining Martin. Id., 2010-0588, p. 7; 54 So.3d at 116. “[Vjiewing the picture as a whole,” the court of appeal majority found the district court erred in denying the defendant’s motion to suppress, and reversed and set aside the defendant’s conviction and sentence. Id.

The dissenting appellate judge found nothing in the encounter between the officer and the defendant which implicated Fourth Amendment concerns. The dissent emphasized both men knew each other “from previous encounters around town such as football games and other civic functions.” Id., 2010-0588, p. 2; 54 So.3d at 118 (Amy, J., dissenting). According to the dissent, the acquaintanceship underscored that defendant “voluntarily complied with the officer’s request for identification,” and voluntarily “offered a response to the officer’s potentially incriminating question.” Id,., 2010-0588, p. 2; 54 So.3d at 117 (Amy, J., dissenting). The dissent thus concluded that there was “no evidence that the defendant’s response to the officer was coerced.” Id.

This court granted the state’s writ application to consider the correctness of the ruling of the court of appeal majority. State v. Martin, 2011-0082 (La.6/17/11); 63 So.3d 1042.

LAW AND DISCUSSION

This matter is before us for a determination of whether the court of appeal erred in reversing a trial court ruling which denied defendant’s motion to suppress physical 1 .¡¡evidence. The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La.C.Cr.P. art. 703(D). A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there has been an abuse of that discretion. State v. Wells, 2008-2262, p. 5 (La.7/6/10); 45 So.3d 577, 581.

The Fourth Amendment to the United States Constitution and La. Const, art. 1, § 5 guarantee citizens the right to be free from unreasonable searches and seizures. The Fourth Amendment provides that the people shall “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” La. Const, art. 1, § 5 provides in pertinent part: “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable, searches, seizures, or invasions of privacy.”

Clearly, not all encounters between law enforcement and individual citizens constitute “seizures.” See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Federal jurisprudence has concluded that a “seizure” occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. This court has held, “[ujnder Louisiana’s slightly broader definition of the term, a seizure may also occur ‘when the police come upon an individual with such force that, regardless of the individual’s attempt to flee or elude the encounter, an actual stop of the individual is virtually certain [to occur].’ ” State v. Sylvester, 2001-0607, p. 3 (La.9/20/02); 826 So.2d 1106, 1108, quoting State v. Tucker, 626 So.2d 707, 712 (La.1993).

| fiThe Supreme Court has recognized three distinct types of police-citizen interactions with accompanying levels of justification to establish that the government action was reasonable or necessary: (1) arrest, which must be supported by probable cause, see Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 799, 157 L.Ed.2d 769 (2003); (2) brief investigatory stops, which must be supported by reasonable articulable suspicion, see Terry, 392 U.S. at 21, 88 S.Ct. at 1880; and (3) brief encounters between police and citizens, which require no objective justification, see Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Under Louisiana law, the same levels of justification are needed to find reasonable each of these three types of police/citizen interactions. See State v. Anthony, 1998-0406, p. 19 (La.4/11/00); 776 So.2d 376, 389 (probable cause needed for arrest); La. C.Cr.P. art. 215.1(A) (reasonable suspicion needed for temporary investigatory stop); and State v. Sherman, 2005-0779, p. 7 (La.4/4/06); 931 So.2d 286, 291 (mere communication implicates no Fourth Amendment concerns).

In this case, the state contends the facts show a consensual encounter between a law enforcement officer and a pedestrian. According to the state, no Fourth Amendment protections, or protections under the state constitution, were implicated or violated by any of Cpl. Gibbs’ actions. The defense disagrees, arguing the officer’s retention of his identification in order to check for outstanding warrants, as well as the retention of his identification while asking potentially incriminating questions, changed the nature of the police/citizen contact from initially consensual to a detention requiring reasonable articulable suspicion of criminal activity.

We have held that a law enforcement officer may approach any person and ask simple questions without a requirement of reasonable suspicion of criminal activity. See State v. Herrera, 2009-1783, p. 1-2 (La.12/18/09); 23 So.3d 896, 897; Sherman, 2005-0779, p. 7; 931 So.2d at 291 (“The officers did not need either reasonable suspicion for an investigatory stop or probable cause for an arrest to approach the defendant, inquire why he was parked at the side of the road, and ask for some identification ... [m]ere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.”). This third level of police/citizen encounter is less formal than that of an “investigatory stop,” and is, essentially, a “consensual encounter” involving minimal police contact which does not invoke constitutional safeguards. See Bostick, 501 U.S. at 439, 111 S.Ct. at 2388 (“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times.”) (citations omitted); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”); Sylvester, 2001-0607, p. 4; 826 So.2d at 1108 (quoting Bostick); State v. Lewis, 2000-3136, p. 3 (La.4/26/02); 815 So.2d 818, 820, cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002) (quoting Royer).

In addition, “an officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave.” Sherman, 2005-0779, p. 7; 931 So.2d at 291; Lewis, 2000-3136, p. 3; 815 So.2d at 820 (same); State v. McDaniels, 2001-0305, p. 1 (La.12/7/01); 803 So.2d 966, 967 (same); see I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).

The legal question presented in this matter is whether Martin was seized at any point for purposes of the Fourth Amendment or state constitutional protections considering the totality of circumstances of the encounter. Applying the law to the present case, Cpl. Gibb’s request to see the defendant’s identification (presumably his driver’s license but not clearly indicated in the record) did not by itself turn the otherwise consensual encounter into a forcible detention. Police remain free to approach an individual on the street to engage him in conversation, which may include questions which invite an incriminating response, and may also ask for some identification without implicating the Fourth Amendment. See Lewis, 2000-3136, p. 3; 815 So.2d at 820.

What we must next determine is whether the officer’s decision to retain the defendant’s identification, after inspecting it briefly, for however long it takes to conduct a warrant check, transformed his consensual encounter with a pedestrian into a Fourth Amendment event requiring at least reasonable suspicion for a forcible detention.

We are aware that some jurisdictions subscribe to a per se rule in the context of pedestrian stops. In other words, those courts have held that an officer’s retention of an individual’s identification in the course of continued questioning, or to check for outstanding warrants, creates an atmosphere in which an individual, as a general rule, will not reasonably feel free to terminate the encounter. Thus, these courts have held that a detention or seizure has occurred, necessitating at least reasonable suspicion in order to justify a restraint on the individual’s liberty. See United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.1995) (“[w]hen law enforcement officials | ¡¡retain an individual’s driver’s license in the course of questioning him, that individual, as a general rule, will not reasonably feel free to terminate the encounter,” and a seizure for Fourth Amendment purposes thus occurs); United States v. Jordan, 958 F.2d 1085, 1087 (D.C.Cir.1992) (“[O]nce the identification is handed over to police and they have had a reasonable opportunity to review it, if the identification is not returned to the detainee [it is] difficult to imagine that any reasonable person would feel free to leave without it.”) (internal quotation marks and citations omitted); State v. Page, 140 Idaho 841, 845, 103 P.3d 454, 458 (2004) (“This Court is concerned about the implications of a rule allowing law enforcement officers the ability to initiate consensual encounters with pedestrians in order to seize identification and run a warrants check.”).

The per se rule draws heavily on the Supreme Court’s decision in Royer, which in the context of the detention of an airline passenger in an airport concourse, stated:

Asking for and examining Royer’s ticket and his driver’s license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that a reasonable person would have believed he was not free to leave.

Id., 460 U.S. at 501-502, 103 S.Ct. at 1326 (citation omitted). Courts relying on Royer for the per se rule have noted the impractical and unrealistic option of a reasonable person in modern society to abandon one’s identification, as an individual is practically immobilized without adequate identification. See State v. Daniel, 12 S.W.3d 420, 427 (Tenn.2000); Lambert, 46 F.3d at 1068; Jordan, 958 F.2d at 1087.

After due consideration, we reject a per se rule under these facts. Instead, we believe the determination of whether a seizure has occurred is a fact-intensive l10analysis in which a reviewing court must consider the totality of the circumstances. As stated by the Supreme Court in Bostick:

We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

Id., 501 U.S. at 439, 111 S.Ct. at 2389. We note “police-citizen encounters do not become ‘seizures’ simply because citizens may feel an inherent social pressure to cooperate with police.” Daniel, 12 S.W.3d at 425, citing People v. Paynter, 955 P.2d 68, 72 (Colo.1998). Yet, “[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” Delgado, 466 U.S. at 216, 104 S.Ct. at 1762. Courts must pay attention to the facts of each encounter, while keeping in mind the realities of every day life and the importance of an individual’s identification. As noted by the Florida Supreme Court,

[c]ertainly, the dangers posed by crimes such as identity theft and the ever-present threats to our national security makes the act of identifying oneself through presentation of valid, government-issued identification a necessary part of a panoply of human endeavors, from cashing a check to boarding an airplane.

Golphin v. State, 945 So.2d 1174, 1189-1190 (Fla.2006), cert. denied, 552 U.S. 810, 128 S.Ct. 40, 169 L.Ed.2d 11 (2007). In examining the totality of the circumstances, a court must look to “numerous factors, including the time, place and purpose of the encounter, the words used by the officer, the officer’s tone of voice and general demeanor, the officer’s statements to others present during the encounter, the threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.” United States v. Weaver, 282 F.3d 302, 310 (4th Cir.2002), cert. denied, 537 U.S. 847, 123 S.Ct. 186, 11154 L.Ed.2d 75 (2002).

In addition, we generally reject the premise that among the totality of the circumstances some facts have more weight and relevance than others. Certainly, the retention of identification during the course of further interrogation or search factors into whether a seizure has occurred. See Weaver, 282 F.3d at 310, 312 (“We expressly refuse to adopt a brightline rule that when an officer retains an individual’s identification beyond its intended purpose, in this case checking for outstanding warrants, the individual whose identification is retained is effectively seized for purpose of the Fourth Amendment .... While it is without question that a driver’s license is one of the most valuable pieces of personal identification possessed by any citizen, it does not logically follow that any time an officer retains someone’s driver’s license that such retention blossoms into an unconstitutional seizure .... something more is required.”) (footnote omitted); United States v. Tavolacci, 895 F.2d 1423, 1425-1426 (D.C.Cir.1990) (“[T]he retention of papers under some circumstances may transform an interview into a seizure, where it is prolonged or is accompanied by some other act compounding an impression of restraint.”) (citations omitted); Golphin, 945 So.2d at 1188 (“[TJheoretically, retention of Golphin’s identification would not have constrained his ability to either request the return of the identification or simply end the encounter by walking into the apartment in which he was staying.”).

Reviewing the totality of the circumstances here, we are confronted with the reality that the scant record leaves many questions unanswered. Other than some few details elicited on cross-examination and re-direct examination, Cpl. Gibbs’ testimony about the entire encounter was spare. He testified:

|12I was walking into the Five Star in Moss Bluff. I saw Terrence, [sic] He was walking out. I knew Terrence from when he lived in Westlake. I lived in Westlake. I used to see him at football games, out and about town. I asked him how he was doing. I knew he had been in some trouble in Lake Charles, so I asked him for his ID, to check him for warrants. He said — he gave me his ID. We talked a little bit. He was nervous, sweating profusely. So I asked him, I said, you know, “Terrence [sic], you got anything illegal on you?” He said, “Yes, sir, I got four Somas in my pocket.” And from there, I had to pat him down, recover the Somas, arrested him and booked him in for possession. See R. Vol. 1, p. 77-78.

It is not clear exactly when Cpl. Gibbs ran the warrants check. Presumably, he did so before placing the defendant under arrest, as the officer would have had little need to check for outstanding warrants on the scene after taking the defendant into custody and transporting him to the station house for booking on the drug charge, at which time a warrant check would have been conducted as a routine matter. Nor is it clear how the officer ran the warrants check, ie. whether he stood next to the defendant while he communicated with the Sheriffs Office with a hand-held radio, or retreated to a patrol car. Nor is it clear exactly what identification Cpl. Gibbs obtained from the defendant. Presumably, the identification obtained was the defendant’s driver’s license reflecting his address and birth date, but the record is uncertain about this point.

Thus, the appellate panel majority had an uncertain basis for subscribing to a brightline per se rule in the present case. At the least, it seems clear that the encounter between Cpl. Gibbs and the defendant was relatively brief, even assuming the officer actually conducted the warrant check as he and defendant engaged in “a | islittle bit” of small talk outside the Five Star. Under the totality of the circumstances provided here, the dissenting judge appears correct that nothing in the conduct of the officer decisively changed the consensual nature of the officer’s brief encounter with the defendant.

We note the warrant check did not take so long that a reasonable person, having surrendered his identification in the first place to the police for inspection, would understand that he was no longer free to end the small talk and go about his business. By contrast, in Lambert, supra, the officers held the defendant’s identification for 20 to 25 minutes after approaching him in the airport parking lot before conducting the warrant check, which came back negative. Under those circumstances, the federal appellate court had no difficulty in concluding “the thirty minute retention of the license exceeded the permissible length of time to determine if Mr. Lambert was wanted for any crimes.” Id., 46 F.3d at 1068 n. 3.

Here, there was no abuse of the district court’s discretion in its denial of the defendant’s motion to suppress. The record fails to support a finding that there was an unmistakable show of official authority in the police/citizen encounter at issue which would have indicated to a reasonable person that he was not free to leave. We find, as did the dissenting appellate judge, that Martin voluntarily complied with the officer’s request for identification and voluntarily offered a response to the officer’s potentially incriminating question. Under the totality of the circumstances, we find the officer’s brief retention of Martin’s identification under these facts did not change the nature of this essentially consensual encounter and the officer lawfully retrieved the Soma pills from the defendant’s pocket.

1140ur ruling today underscores our commitment to the totality of the circumstances test in determining whether or not an unreasonable seizure or detention has occurred and our rejection of a brightline or per se rule. Consequently, our ruling in this particular matter is limited to the facts adduced in the record. We note approvingly the caution of the Florida Supreme Court and the possibility that different facts might produce a different outcome:

While we approve the decision of the district court below, our decision today does not stand for an absolute, expansive proposition that retaining identification for the purpose of conducting a warrants check could never implicate constitutional safeguards. Certainly, we can conceive of circumstances where the retention of identification for the purpose of running a warrants check or other purposes, when viewed in the totality of the circumstances, might implicate the Fourth Amendment.

Golphin, 945 So.2d at 1189.

DECREE

Based on the foregoing, we find the court of appeal erred in reversing the district court’s denial of the defendant’s motion to suppress. We reverse the ruling of the appellate court and remand the matter to the court of appeal for consideration of the defendant’s remaining assignment of error.

REVERSED AND REMANDED.

      . La.C.Cr.P. art. 215.1(A) states: "A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions." The right of law enforcement officers to stop and interrogate persons reasonably suspected of criminal conduct is recognized, as well, by both state and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Morgan, 2009-2352, p. 6 (La.3/15/11); 59 So.3d 403, 407-408.

      . The court of appeal did not reach the defendant's assignment of error regarding exces-siveness of sentence, finding its ruling on the suppression issue made this alleged error moot.

      . La. C. Cr.P. art. 703(D) provides in pertinent part: “On the trial of a motion to suppress filed under the provisions of this Article, ... the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.”

      . We can, of course, conceive of some instances in which a single fact would have conclusive relevance, such as when an officer demanded to see an individual’s identification or asked an individual questions at gunpoint.

      . The bill of information shows the defendant’s first name is spelled "Terrance.” R. Vol. l,p. 5.

      . Compare with Golphin, 945 So.2d at 1177 ("... we determine that the totality of the circumstances of Golphin's encounter with law enforcement indicates that he was not seized for purposes of the Fourth Amendment when the police officer held in her hand at that specific site the identification he had consensually and voluntarily provided and viewed it as she conducted a computerized check for warrants in his presence and without moving away from that location where the identification had been consensually and voluntarily produced.”).

      . Even one of the courts which has ascribed to the per se rule conceded "the temporary deprivation of [the defendant's] identification or travel documents might not significantly interfere with his intended movements, at least if that deprivation lasted only a few moments.” Jordan, 958 F.2d at 1088.