Calhoun v. State, No. 1D19-524

CourtCourt of Appeal of Florida (US)
Writing for the CourtRay, C.J.
Citation308 So.3d 1110
Parties Kenneth CALHOUN, Jr., Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 1D19-524
Decision Date30 December 2020

308 So.3d 1110

Kenneth CALHOUN, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 1D19-524

District Court of Appeal of Florida, First District.

December 30, 2020


Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.

Ray, C.J.

Kenneth Calhoun, Jr. pleaded no contest to possession of a firearm by a convicted felon, resisting an officer without violence, and possession of a controlled substance, while reserving the right to appeal the trial court's denial of his dispositive motion to suppress. He argues on appeal, as he did below, that law enforcement lacked reasonable suspicion of criminal activity to justify the investigative stop that led to the charges against him. Because Calhoun has not met his burden to show reversible error, we affirm.

Background

Two deputies with the Escambia County Sheriff's Office responded to a 911 call from a convenience store clerk who reported a possible drug deal taking place at the car wash behind his store. The clerk provided his name and phone number and asked the operator if there were any officers nearby; he said he "wanted to get another one tonight since they already got one here today." The car wash is part of the store's business along with a gas station out front. Just before 5:30 in the morning, he told the 911 operator that a Porsche sports utility vehicle ("SUV") had parked in the last of four car wash stalls located behind the store. A second car then parked in front of the store and while the driver (whom the clerk described as a white female) stayed in the car, the passenger (whom the clerk described as a black male) got out and walked around to meet with the individual in the SUV. The passenger was later identified as Calhoun. The clerk also described what Calhoun was wearing and confirmed that the car and its driver, but not Calhoun, were still in front of his store while the 911 operator sent officers to investigate.

When they arrived at the scene, the deputies saw the SUV in the car wash stall, but no one was washing it and the ground was dry. Calhoun was leaning next to the front passenger window. The deputies parked at a distance and concealed their approach so that Calhoun and the driver of the vehicle would not see them until the deputies were right in front of them. As they walked up to Calhoun, one of the deputies saw a bulge in Calhoun's pocket. Calhoun kept putting his hand over it. He appeared nervous and seemed to be looking for a way out. One deputy stopped at the front of the vehicle and stood on the right side of Calhoun, while the other deputy walked behind Calhoun and stood to his left. The female inside the SUV immediately tried to drive away but then stopped as a third deputy pulled up, though that deputy's cruiser did not block the SUV's exit. Calhoun did not try to leave. But as the deputies questioned him about weapons, he appeared increasingly nervous and was looking for a way out while repeatedly patting a bulge in his pocket. At that point, one of the officers could see the shape of a gun in Calhoun's pocket. The deputies told him to put his hands on the hood of the car, which he did,

308 So.3d 1113

although he moved his hand to his pocket when a deputy tried to pat him down. He also resisted when the deputy tried to put his hand back on the hood, so they handcuffed him. After a limited search of his person, the deputies found a gun in his pocket and a small clear baggie containing Fentanyl.

Both deputies described the location as a high-crime area based on their experience patrolling their assigned districts. One deputy testified about robberies, home invasions, and burglaries within the past year, along with heroin overdoses at many of the convenience stores and a domestic violence call at that particular store. The other deputy testified about drug activity in the area along with ongoing problems with drugs at the same store and loitering at the car wash behind it.

The trial court denied Calhoun's motion to suppress. It reasoned that what began as a consensual encounter turned into an investigative stop when the deputies saw a bulge in Calhoun's pocket, giving them reasonable suspicion to frisk him. Calhoun pleaded no contest to the charges against him and reserved the right to appeal the denial of his motion to suppress, which the State and court agreed was dispositive. This timely appeal follows.

Analysis

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." McCloud v. State , 208 So. 3d 668, 675 (Fla. 2016) (quoting Rolling v. State , 695 So. 2d 278, 291 (Fla. 1997) ). We defer to the trial court's factual findings if they are supported by competent, substantial evidence, but review its legal conclusions de novo. Rodriguez v. State , 187 So. 3d 841, 845 (Fla. 2015).

"The ultimate standard set forth in the Fourth Amendment is reasonableness." Hilliard v. State , 285 So. 3d 1022, 1024 (Fla. 1st DCA 2019) (quoting Cady v. Dombrowski , 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ). "An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ " State v. Johnson , 208 So. 3d 843, 845 n.2 (Fla. 1st DCA 2017) (alteration in original) (quoting Brigham City v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). "During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked." Popple v. State , 626 So. 2d 185, 186 (Fla. 1993). Under the Fourth Amendment, "a seizure or stop occurs ‘when one's freedom of movement has been restrained, either by physical force or a showing of authority, so that the surrounding circumstances demonstrate a reasonable person would not have felt free to leave.’ " June v. State , 131 So. 3d 2, 7 (Fla. 1st DCA 2012) (quoting Johnson v. State , 610 So. 2d 581, 583 (Fla. 1st DCA 1992) ).

To justify an investigative stop, an officer must have reasonable suspicion that criminal activity has occurred or is about to occur, based on the totality of the circumstances at the time of the stop. C.E.L. v. State , 24 So. 3d 1181, 1186 (Fla. 2009) ; Baptiste v. State , 995 So. 2d 285, 294 (Fla. 2008) (reaffirming that whether an officer's suspicion was reasonable must be measured by what the officer knew before the suspect was seized). Factors that may be considered when determining whether an officer had reasonable suspicion include the time of day, the suspect's behavior, the manner of a vehicle's operation, and anything

308 So.3d 1114

unusual about the situation based on the officer's experience. Huffman v. State , 937 So. 2d 202, 206 (Fla. 1st DCA 2006). Seemingly innocent behavior can provide the basis for reasonable suspicion:

Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion. We said in Reid v. Georgia [448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)], "there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot." Indeed, Terry itself involved "a series of acts, each of them perhaps innocent" if viewed separately, "but which taken together warranted further investigation." We noted in Gates , that "innocent behavior will frequently provide the basis for a showing of probable cause," and that "[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts." That principle applies equally well to the reasonable suspicion inquiry.

United States v. Sokolow , 490 U.S. 1, 9–10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations omitted). In fact, "conduct does not need to be illegal (or acted upon if so) to be suspicious." Weakley v. State , 273 So. 3d 283, 286 (Fla. 1st DCA 2019) (observing that in District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 588, 199 L.Ed.2d 453 (2018), the Supreme Court explained that "the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation" and that the "totality-of-the-circumstances test ‘precludes this sort of divide-and-conquer analysis’ ").

"In analyzing whether third-party information can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided." Tobin v. State , 146 So. 3d 159, 161–62 (Fla. 1st DCA 2014) (quoting Berry v. State , 86 So. 3d 595, 598 (Fla. 1st DCA 2012) ). "A citizen informant ... is presumed highly reliable because his or her ‘motivation in reporting illegality...

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