DBP v. State

• Decision Date: 19 March 2010
• Docket Number: No. 5D09-2877.,5D09-2877.
• Citation: 31 So.3d 883
• Parties: D.B.P., A Child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

31 So.3d 883

D.B.P., A Child, Appellant,
v.
STATE of Florida, Appellee.

No. 5D09-2877.

District Court of Appeal of Florida, Fifth District.

March 19, 2010.

31 So.3d 884

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, C.J.

The appellant, D.B.P., a minor, argues that the trial court erred in denying his motion to suppress evidence, and that his judgment and sentence should be reversed. Because we agree that under the prevailing case law the search lacked constitutional validity, we reverse.

The critical facts are uncomplicated. A sheriff's deputy sought to make a "consensual encounter" about mid-day near a bus stop in what the officer described as a "high crime" area. Other officers had advised the arresting officer that a person had committed pedestrian violations. The officer approached D.B.P. and said "Hey. What's up man," to which the minor responded, "Who me?" According to the officer, when he approached D.B.P., the minor put both hands in his pockets and looked nervous. The officer told him to take his hands out of his pockets, and when D.B.P. did not do so, the officer physically assisted the minor in removing his hands. D.B.P. was then told to place his hands above his head. The officer noted that the minor was wearing baggy pants, so the officer could not visually see what was in them. He then patted D.B.P. down and felt the handle of a handgun. The officer subsequently took D.B.P. into custody.

The State conceded in closing argument at the suppression hearing that the stop was an investigatory stop, and not a consensual encounter. The trial court agreed that the stop was "nonconsensual," but then concluded that it was neither a consensual, nor an investigatory stop. Eventually the trial court opted to apply a Terry¹ analysis in determining whether the arresting officer had reasonable suspicion to search D.B.P. The trial court concluded that under the totality of circumstances, the actions of the officer were reasonable. After the court issued that ruling, D.B.P. pled nolo contendere, reserving the ruling on the search for appellate consideration. This appeal followed.

A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness

31 So.3d 885

and a reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain a trial court's ruling. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); San Martin v. State, 717 So.2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999); Davis v. State, 922 So.2d 438, 443 (Fla. 5th DCA 2006). While the standard of review to be applied to factual findings of the trial court is whether competent, substantial evidence supports the findings, the trial court's application of the law to the facts is reviewed de novo. See Bevard v. State, 976 So.2d 1163 (Fla. 5th DCA 2008); Utu v. State, 929 So.2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So.2d 404 (Fla. 5th DCA), review denied, 935 So.2d 1220 (Fla.2006); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); McMaster v. State, 780 So.2d 1026, 1027 (Fla. 5th DCA 2001)

The Florida stop and frisk law, as interpreted by J.L. v. State, 727 So.2d 204 (Fla.1998), affirmed, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and State v. Webb, 398 So.2d 820 (Fla.1981), allows an officer who has validly stopped an individual to pat down and search the person if the officer has reasonable suspicion to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person. § 901.151(5), Fla. Stat. (2009). In J.L., however, the Florida Supreme Court declined to create a firearm or weapons exception to the limitations on searches and seizures set out in the Fourth...