D.O. v. State

• Decision Date: 21 December 2011
• Docket Number: No. 3D10–3001.,3D10–3001.
• Citation: 77 So.3d 787
• Parties: D.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

77 So.3d 787

D.O., a juvenile, Appellant,

v.The STATE of Florida, Appellee.

No. 3D10–3001.

District Court of Appeal of Florida, Third District.

Dec. 21, 2011.

An Appeal from the Circuit Court for Miami–Dade County, Orlando A. Prescott, Judge.Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.

Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.

WELLS, Chief Judge.

Affirmed. See E.P. v. State, 997 So.2d 1240 (Fla. 3d DCA 2008) (citing Jackson v. State, 791 P.2d 1023 (Alaska Ct.App.1990)(“in the case of transportation in a police vehicle, however, or in the analogous circumstances here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person”), In re Kelsey, 243 Wis.2d 422, 626 N.W.2d 777 (2001), and State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993)).

EMAS, J. specially concurring.

I concur in affirming the trial court's order denying the motion to suppress, but write to explain my reasons for doing so.

The relevant facts are not in dispute: A patrol officer in a marked police car observed D.O. walking with a group of five other juveniles. It was a school day, during school hours, and the juveniles were not walking in the vicinity of a school, carrying any books or book bags, or wearing any clothing that would readily identify them as students.

The officer approached the group and began to question them about their age and why they were not in school. After determining that D.O. was sixteen years old and should have been in school, the officer prepared to take D.O. back to school (or to his home, if he was suspended from school). Before placing D.O. in the back of the patrol car, the officer conducted a pat-down search of D.O.'s outer clothing. The officer did not have D.O.'s consent to do so, and the officer acknowledged that he had no reasonable suspicion to believe that D.O. was armed. The officer testified that he conducted a pat-down search because it is department policy to pat down any person before placing them in a patrol car, for officer safety. Upon conducting the pat down, the officer felt a “bulge,” which D.O. told the officer was a firearm. The officer retrieved the firearm and D.O. was charged with carrying a concealed firearm.

D.O. filed a motion to suppress, arguing that the existence of a departmental policy does not provide the necessary basis to justify a pat-down search of a juvenile who is being transported based on truancy, which is not a criminal offense. D.O. argues that, because the officer had no reasonable suspicion that D.O. was armed, the pat-down search violated D.O.'s Fourth Amendment rights, and the firearm must be suppressed.

The trial court denied the motion to suppress, and D.O. entered a plea reserving the right to appeal the denial of this dispositive motion.

Thus, the issue presented is this: upon lawfully taking a juvenile truant into custody pursuant to its duty under section 984.13, Florida Statutes, may a police officer conduct a limited pat-down search for weapons, even in the absence of reasonable suspicion to believe the juvenile is armed, before placing the juvenile in a police vehicle for the purpose of delivering the juvenile without unreasonable delay to the appropriate school system site?

In order to properly analyze this particular search, we must first review the relevant statutory scheme. Chapter 984 (entitled “Children and Families in Need of Services”) creates a broad array of services available to children and families in need of services and imposes a variety of duties upon state agencies to achieve several important goals. This chapter includes providing services for child runaways, children locked out of their home, children beyond the control of their parents, and habitual truants. See § 984.03(9), (25), and (27), Fla. Stat. (2011).

Section 984.13 was created to authorize and obligate law enforcement officers to serve as the initial contact point for children who may be in need of these services. That section provides:

(1) A child may be taken into custody ¹:

(a) By a law enforcement officer when the officer has reasonable grounds to believe that the child has run away from his or her parents, guardian, or other legal custodian.

(b) By a law enforcement officer when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his or her parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site. For the purpose of this paragraph, “school system site” includes, but is not limited to, a center approved by the superintendent of schools for the purpose of counseling students and referring them back to the school system or an approved alternative to a suspension or expulsion program. If a student is suspended or expelled from school without assignment to an alternative school placement, the law enforcement officer shall deliver the child to the parent or legal guardian, to a location determined by the parent or guardian, or to a designated truancy interdiction site until the parent or guardian can be located.

(c) Pursuant to an order of the circuit court based upon sworn testimony before or after a petition is filed under s. 984.15.

(d) By a law enforcement officer when the child voluntarily agrees to or requests services pursuant to this chapter or placement in a shelter.

(2) The person taking the child into custody shall:

(a) Release the child to a parent, guardian, legal custodian, or responsible adult relative or to a department-approved family-in-need-of-services and child-in-need-of-services provider if the person taking the child into custody has reasonable grounds to believe the child has run away from a parent, guardian, or legal custodian; is truant; or is beyond the control of the parent, guardian, or legal custodian; following such release, the person taking the child into custody shall make a full written report to the intake office of the department within 3 days; or

(b) Deliver the child to the department, stating the facts by reason of which the child was taken into custody and sufficient information to establish probable cause that the child is from a family in need of services.

(3) If the child is taken into custody by, or is delivered to, the department, the appropriate representative of the department shall review the facts and make such further inquiry as necessary to determine whether the child shall remain in custody or be released. Unless shelter is required as provided in s. 984.14(1), the department shall:

(a) Release the child to his or her parent, guardian, or legal custodian, to a responsible adult relative, to a responsible adult approved by the department, or to a department-approved family-in-need-of-services and child-in-need-of-services provider; or

(b) Authorize temporary services and treatment that would allow the child alleged to be from a family in need of services to remain at home.

§ 984.13 Fla. Stat. (2011).

A reading of the entire section places into proper context the purpose and intent of this statutory provision, as well as the role of law enforcement officers in carrying out its mandates. As can be seen, law enforcement's role is not to investigate criminal activity or apprehend suspects. Rather, it is to promote the safety and protection of children and families in need of services, and to ensure that individuals in need are provided with these services as expeditiously as possible. The Florida Legislature expressed this intent in section 984.02(1), Florida Statutes:

(1) GENERAL PROTECTIONS FOR CHILDREN.

It is a purpose of the Legislature that the children of this state be provided with the following protections:

(a) Protection from abuse, neglect, and exploitation.

(b) A permanent and stable home.

(c) A safe and nurturing environment which will preserve a sense of personal dignity and integrity.

(d) Adequate nutrition, shelter, and clothing.

(e) Effective treatment to address physical, social, and emotional needs, regardless of geographical location.

(f) Equal opportunity and access to quality and effective education which will meet the individual needs of each child, and to recreation and other community resources to develop individual abilities.

(g) Access to preventive services.

(h) An independent, trained advocate when intervention is necessary and a skilled guardian or caretaker in a safe environment when alternative placement is necessary.

Law enforcement officers serve as the eyes and ears of our community and are often the first to encounter individuals in the very situations addressed in Chapter 984. Law enforcement, in a very real sense, fulfills a role as a “community caretaker” when they encounter truants, child runaways, children locked out of their home, and children beyond the control of their parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian, or return the child to school or the appropriate agency that can provide the services needed in light of the individual circumstances.

The United States Supreme Court first recognized the community caretaker doctrine in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Cady, police officers found an unoccupied and disabled car that had been involved in an accident and left on the highway, posing a potential traffic hazard. The officers learned that the person who had been driving the vehicle was a police officer, that the officer was intoxicated and that his service revolver was still in the vehicle. Following a standard police procedure, and in order “to protect the public from the possibility that a revolver would fall into untrained or...