D.H. v. State

• Decision Date: 04 September 2013
• Docket Number: No. 3D12–2520.,3D12–2520.
• Citation: 121 So.3d 76
• Parties: D.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

121 So.3d 76

D.H., a juvenile, Appellant,

v.The STATE of Florida, Appellee.

No. 3D12–2520.

District Court of Appeal of Florida,

Third District.

Sept. 4, 2013.

Carlos J. Martinez, Public Defender, and Vyacheslav Borshchukov and Brian Ellison, Assistant Public Defenders, for appellant.

Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.

Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

ROTHENBERG, J.

D.H. appeals the trial court's order denying his motion to suppress a firearm and marijuana found in his possession after a pat-down search conducted during an investigatory stop. Because there was no reasonable suspicion to believe D.H. was armed with a dangerous weapon, or probable cause for an arrest when the pat-down was conducted, we reverse and remand with directions that D.H. be discharged.

BACKGROUND

Based on several recent gang-related shootings in the Cloverleaf area of Miami Gardens, a “high crime area,” the Miami Gardens Police Department began covertly monitoring the area to prevent criminal activity, particularly violent crime. At approximately eleven o'clock on the night D.H. was arrested, Officer Rosado was in a parking lot in the Cloverleaf area in an unmarked patrol car when he observed three or four juvenile males in the parking lot only a few feet from where Officer Rosado's patrol car was located.

After observing the group for a while, Officer Rosado exited his vehicle, and immediately smelled what he recognized as burnt marijuana emanating from the area near the group of juveniles. Officer Rosado testified that he was familiar with the smell based on his years of training and experience in law enforcement. He did not see anyone smoking marijuana, passing marijuana, concealing baggies, or using a lighter, although he did notice a “puff of smoke” hanging in the air near the juveniles. As he approached the group, the smell of marijuana became stronger.

Without asking any questions or investigating the marijuana smell further, Officer Rosado requested back-up assistance and conducted a pat-down search of the individuals to check for weapons due to his safety concerns, which were primarily motivated by the area's history of gun-related violence. During the pat-down, Officer Rosado felt a hard bulge in D.H.'s left front jacket pocket. Because Officer Rosado believed the object he felt was a firearm, he placed D.H. on the ground and detained D.H. and two other juveniles at gunpoint until backup arrived. When backup arrived, Officer Rosado continued the search, handcuffed D.H., and verified that the bulge in D.H.'s jacket pocket was in fact a .38 caliber revolver-style pistol. D.H. was arrested, and a search incident to the arrest revealed a small baggie of marijuana in D.H.'s pocket as well. D.H. was charged with (1) carrying a concealed firearm, (2) being a minor in possession of a firearm, and (3) possession of cannabis.

After conducting a hearing on D.H.'s motion to suppress the evidence, the trial court found that although the pat-down was not supported by reasonable suspicion that D.H. was armed, the search was lawful because Officer Rosado possessed probable cause to arrest D.H. for possession of marijuana. The parties stipulated that the motion to suppress was dispositive, and D.H. pled nolo contendere to the charges, reserving his right to appeal the trial court's ruling denying his motion to suppress the evidence.

DISCUSSION

Although we agree with the trial court that there was insufficient evidence to justify a pat-down search of D.H. based on a reasonable suspicion that D.H. was armed and dangerous, we disagree that the search was otherwise lawful based on probable cause that D.H. was in possession of marijuana.

I. Standard of Review

“[A] trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002) (citing Murray v. State, 692 So.2d 157 (Fla.1997)). The appellate court should review findings of historical fact only for clear error and give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Jenkins v. State, 978 So.2d 116, 122 (Fla.2008) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Applying those facts to determinations of reasonable suspicion and probable cause, however, are reviewed de novo on appeal. Id.

II. Searches

The Florida Supreme Court has identified three basic categories of police-citizen encounters, each having its own specific burden of proof to justify a search or seizure. Popple v. State, 626 So.2d 185, 186 (Fla.1993). The first, and least onerous type, is a consensual encounter. Id. Consensual encounters involve minimal police contact and the citizen is free to leave of his own volition. Id. Because there is no detention during such encounters, constitutional safeguards do not apply. Id.

The second type of encounter is an investigatory stop. Id. This category of search arises from the seminal United States Supreme Court case Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and was codified by the Florida legislature in section 901.151 of the Florida Statutes. See State v. Webb, 398 So.2d 820, 821–25 (Fla.1981) (discussing the history of Florida's stop and frisk statute, as well as its interpretation). Although investigatory stops are less intrusive than a full search incident to an arrest, they still require an officer to have reasonable suspicion that a suspect has committed, is committing, or is about to commit a crime before the stop can constitutionally occur. § 901.151(2), Fla. Stat. (2011); Popple, 626 So.2d at 186. An officer having reasonable suspicion “may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person's presence abroad which led the officer to believe that the person had committed,was committing, or was about to commit a criminal offense.” § 901.151(2).

During an investigatory stop, an officer may conduct a “stop and frisk” or pat-down of the suspect if the officer has a reasonable belief that the suspect “is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person....” § 901.151(5). A pat-down search conducted during an investigatory stop must be based specifically on the reasonable belief that the suspect is armed and dangerous, and not simply on the reasonable suspicion that justified the investigatory stop at the outset. Webb, 398 So.2d at 822.

The final category of encounter is an actual arrest, which requires probable cause that a crime has been or is being committed. Popple, 626 So.2d at 186. Officers may conduct a search of a suspect incident to a lawful arrest, which is per se constitutionally permissible and reasonable under the Fourth Amendment, because such searches are necessary to protect police officers and preserve evidence. Jenkins, 978 So.2d at 125 (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 494, 38 L.Ed.2d 427 (1973)). Searches incident to an arrest may be conducted contemporaneous with or prior to the actual arrest so long as probable cause for the arrest existed at the time of the search. Jenkins, 978 So.2d at 126 (citing Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)).

A. Whether the pat-down search of D.H. was supported by reasonable suspicion to believe he was armed and dangerous.

D.H. does not dispute, and we find, that the police encounter in this case was an investigatory stop supported by reasonable suspicion. Investigatory stops, however, are only for the limited purpose of discovering the suspect's identity and briefly investigating the circumstances supporting the reasonable suspicion. Id. Should the detainee's responses or actions during a limited investigatory stop give rise to heightened suspicion rising to the level of probable cause, the stop can blossom into an arrest and search based on that probable cause. § 901.151(3), (4); United States v. Sokolow, 490 U.S. 1, 12–13, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“The rationale for permitting brief, warrantless seizures is, after all, that it is impractical to demand strict compliance with the Fourth Amendment's ordinary probable-cause requirement in the face of ongoing or imminent criminal activity demanding ‘swift action predicated upon the on-the-spot observations of the officer on the beat.’ Observations raising suspicions of past criminality demand no such immediate action, but instead should appropriately trigger routine police investigation, which may ultimately generate sufficient information to blossom into probable cause.” (internal citations omitted)). Absent such exacerbating evidence though, the investigatory stop must terminate. § 901.151(4).

To justify a pat-down search during an investigatory stop, however, the officer must have reasonable belief that the suspect is armed. § 901.151(5). Such reasonable belief cannot be based on a mere suspicion or hunch, but must be supported by some objective basis such as aggressive activity or seeing a bulge prior to the pat-down. See Robinson v. State, 976 So.2d 1229, 1232–1233 (Fla. 2d DCA 2008) (finding no reasonable belief or probable cause based solely on the suspect's location in a “high-crime area”).

Here, Officer Rosado approached the young men based on the smell of marijuanain the air. Although this observation constituted reasonable suspicion that someone in the group possessed marijuana justifying the investigatory stop, Officer Rosado exceeded the scope of the investigatory stop when he conducted a pat-down search of D.H. because a pat-down search during an...