PETERSON, Judge, dissenting.

I respectfully dissent. The majority has leap-frogged the most important analytical step by ignoring the issue whether Hosey was unlawfully seized before she "consented" to the search. In Florida v. Bostick, ___ U.S. ___, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the case upon which the majority relies, even the United States Supreme Court considered the issue of seizure to be one of such importance that the case was remanded for a determination whether a fourth amendment seizure had occurred. The issue whether a seizure occurred must be analyzed before the question of consent can be considered. Here the majority dispenses with the seizure issue merely by stating, "[i]t is not unlawful to knock on the door of even a private residence."

In Bostick the Supreme Court reiterated that consensual encounters in public places do not implicate a fourth amendment interest. Further, even when police have no basis for suspecting an individual they may generally question the individual, ask to examine the individual's identification and request consent to search the individual's luggage — "as long as the officers do not convey a message that compliance with their requests is required." Id., ___ U.S. at ___, 111 S.Ct. at 2388 (emphasis added). A seizure has taken place if 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. See, Id., ___ U.S. at ___, 111 S.Ct. at 2389. In Bostick, as in the instant case, the police lacked the probable cause or the reasonable suspicion required to justify a seizure.

In Bostick, uniformed police officers, one of whom carried an encased weapon, boarded a bus at an intermediate station. Standing between the defendant and the exit, and partially blocking the aisle, they asked to inspect the defendant's ticket and identification. The papers were returned to him as unremarkable. The police then explained that they were narcotics agents on the lookout for drugs and asked to search the defendant's luggage. The defendant was informed of his right to refuse consent. The Florida Supreme Court held that the circumstances amounted to an illegal seizure and noted the comments of a trial court in a similar case:

"`[T]he evidence in this cause has evoked images of other days, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the government. The spectre of American citizens being asked, by badge-wielding police for identification, travel papers — in short a raison d'etre — is foreign to any fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains ("that time permits") and check identification [and] tickets, [and] asked to search luggage — all in the name of "voluntary cooperation" with law enforcement. . . .'" 554 So.2d at 1158, quoting State v. Kerwick supra, at 348-349 (quoting trial court order).

A divided United States Supreme Court reversed in Bostick based on the perceived rigidity of our supreme court's holding that "an impermissible seizure result[s] when police mount a drug search during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage." Id., ___ U.S. at ___, 111 S.Ct. at 2385 quoting 554 So.2d at 1157. The Court perceived the Florida court's holding to be a per se rule that, although police may approach persons at random in most public places, ask them questions, and seek consent to search, they may not engage in the same behavior on buses. Id. The Supreme Court noted that the place where the encounter takes place is not dispositive; all of the circumstances surrounding the encounter must be taken into account. Id., ___ U.S. at ___, 111 S.Ct. at 2387.

In the instant case, the majority mischaracterizes the encounter when it states that the officers "did nothing more than knock on the door of [Hosey's] compartment and ask to speak to her." Hosey was travelling alone in a tiny sleeping compartment approximately three feet by six feet in dimension. When the train stopped in DeLand, three deputies boarded the train. Hosey, partially undressed, was lying abed when the deputies knocked on her door. When she opened it, she was confronted by three officers standing in the narrow passageway outside the door. One of the officers was a six foot two inch male weighing 260 pounds, and another officer was a five foot nine inch female weighing 155 pounds. The third deputy had to leave his dog in a patrol car because of the crowded conditions of the passageway. It would have been impossible for the deputies to enter the room because most of the area was occupied by the bed. One of the officers identified himself to Hosey as a narcotics officer and told her that he had information that she might be in possession of narcotics. He asked her for and received an identity paper. He then asked to search the compartment and her luggage. One of the officers testified that Hosey responded, "Sure." The officer testified that Hosey appeared to be nervous; she was looking around, she spoke softly, and her hands were shaking.

The facts of the instant case are thus more extreme than the facts in Bostick. Hosey, unlike the defendant in Bostick, was not told of her right to refuse consent. The Bostick court felt it "particularly worth noting" that the defendant was advised that he had the right to refuse consent. Id., ___ U.S. at ___, 111 S.Ct. at 2385. Unlike the defendant in Bostick who was surrounded by other passengers, Hosey was held in isolation in partial dress in the middle of the night by the three officers crowding her doorway. Unlike the defendant in Bostick who was told that police were "on the lookout for drugs", Hosey was told that she was a suspect in a criminal investigation, to wit: possession of drugs. Finally, unlike the defendant in Bostick, who was at least seated in a public area, Hosey was in bed in a private sleeping compartment — a home away from home — and had a heightened expectation of privacy resulting in a heightened degree of intrusion.

I would hold that the circumstances surrounding this encounter — the fact that it took place in a private sleeping compartment of a train, the accusatory statement, the request for identity papers, the presence of the three officers in the small, isolated and confined area in the doorway, and the lateness of the hour — were so coercive and intimidating that Hosey was "not at liberty to ignore the police presence and go about [her] business." Bostick, ___ U.S. ___, ___, 111 S.Ct. 2382, 2387. I would hold that this encounter constituted a seizure because, considering all of the circumstances, "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., ___ U.S. at ___, 111 S.Ct. at 2389.

Although the facts of the instant case are far afield of those in Bostick, they are very similar to those in Alvarez v. State, 515 So.2d 286 (Fla. 4th DCA 1987). There the court held that an illegal seizure occurred when three officers boarded the sleeping cars of a train to conduct a drug sweep. The officers knocked on the door of the private compartment occupied by Alvarez, who was lying in bed in his stocking feet. After Alvarez opened the door, the officers positioned themselves in the doorway, partially blocking the exit, and identified themselves. They requested Alvarez's train ticket and identification, explained that they were looking for persons who were illegally transporting drugs, and requested permission to search his luggage. Consent was given and a package of cocaine was found. The Alvarez court held that the encounter was an unconstitutional seizure, noting the closeted circumstances, the coerciveness of a request for identification, and the fact that a person who reserves a private berth in a sleeping car has the right to expect to be free from police intrusion. Id. at 290. In the instant case, as in Alvarez, the encounter was a fourth amendment seizure without probable cause or reasonable suspicion and the denial of Hosey's motion to suppress was correct only if the taint of the illegal seizure had been dissipated by the time she gave her "consent."

With respect to consent, the Alvarez court observed that the state has the burden to prove legal justification for any search conducted without a warrant and that, when consent is relied upon for justification, the state must prove that the consent was freely and voluntarily given as an independent act of free will and not mere acquiescence to police authority. Id. at 288. The court further noted where there is antecedent police misconduct the state must prove the consent by clear and convincing evidence. Id. The purpose of this rule, the court continued, is to place the burden on the state to demonstrate an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official action. Id. Because the court found a lack of such clear and convincing evidence the court held that the motion to suppress should have been granted. In the instant case there is nothing in the record showing a removal of the taint of the illegal seizure. Because the encounter was a fourth amendment seizure without probable cause or a reasonable suspicion, and because the taint of the illegal seizure had not been removed, Hosey's motion to suppress should have been granted.

In Bostick, the Court focused myopically when it said, "If [the war on drugs] is to be fought, those who fight it must respect the rights of individuals, whether or not those individually are accused of having committed a crime." Id., ___ U.S. at ___, 111 S.Ct. at 2389. It is easy to lose focus in cases like this where an apparently guilty person will likely go free if it is determined that "the constable blundered." See People v. Defore, 242 N.Y. 13, 150 N.E. 585, cert. denied, 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784 (1926); Cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, reh. denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961). It is especially easy to lose focus when the contraband seized is so destructive of individuals and society, and when the amount seized suggests that the poison was intended to be spread.

Nevertheless, the focus must remain on the Constitution. United States citizens are guaranteed the right to be "secure in their persons, houses, papers and effects, against unreasonable searches and seizures." Art. IV, U.S. Const. "[I]t was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of [the] method." Bostick, ___ U.S. at ___, 111 S.Ct. at 2389 (Marshall, J., dissenting). The purpose of the exclusionary rule — the rule requiring suppression of illegally obtained evidence — is to preserve these rights for all United States citizens. "The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp, 367 U.S. at 659, 81 S.Ct. at 1694, 6 L.Ed.2d 1081 (1961). If the police can violate the rights of a person later determined to be guilty, they can violate the rights of any citizen. The decisions of appellate courts are applied broadly and the rights of our citizenry should not be diminished in order to convict Hosey of drugs found in violation of constitutional guaranties. Law enforcement officers fight at the front line of the war against drugs, but police misconduct, no matter the degree to which it arises out of zeal and dedication, cannot be countenanced.

With this opinion, based upon the defendant's so-called consent, the majority countenances misconduct that was highly intrusive and highly coercive. If the majority is correct in extending Bostick to the circumstances of this case, then Bostick can be extended to an investigative contact in any setting including a private residence. Anywhere, anytime, day or night, without even a reasonable suspicion, courtesy of the majority opinion, the citizens of Florida can be roused by a group of police officers on a fishing expedition for contraband and asking for "voluntary" consent to a search of the home. By its opinion, the majority places the final nail in the coffin of a citizen's expectation of privacy and brings to reality the fear expressed in U.S. v. Lewis, 728 F. Supp. 784, 788-89, reversed, 287 U.S.App.D.C. 306, 921 F.2d 1294 (1990):

In this "anything goes" war on drugs, random knocks on the doors of our citizens' homes seeking "consent" to search for drugs cannot be far away. This is not America.

If the citizens of this state, and others who travel in it, must endure suspicionless drug sweeps, random or otherwise, that are conducted in their homes and other places in which they have a heightened expectation of privacy, then I would follow the lead of the dissent in Bostick. I would hold that, in circumstances like the instant case, the taint of the illegal seizure cannot be dissipated without the individual being informed of the right to decline to be questioned "to dispel the aura of coercion and intimidation that pervades such encounters." Bostick, ___ U.S. at ___, 111 S.Ct. at 2394-95 (Marshall, J., dissenting). Surely, advising an individual of his right to refuse consent and terminate the encounter would not place an unreasonable burden on the government. The exercise of the right to refuse to cooperate would simply place on the police the time-honored requirement that the police obtain a search warrant upon probable cause. It would also tend to lessen the burden on the courts to conduct lengthy hearings in order to determine whether voluntary consent was given.

I would hold that Hosey was illegally seized as a matter of law and that no dissipation of the taint existed which could have justified the subsequent "consent." Accordingly, I would hold that the trial court erred in denying the motion to suppress.