Goodman v. State

• Decision Date: 27 September 2019
• Docket Number: Case No. 2D18-1632
• Parties: Marquese D. GOODMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

280 So.3d 537

Marquese D. GOODMAN, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-1632

District Court of Appeal of Florida, Second District.

Opinion filed September 27, 2019

Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa; and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.

ATKINSON, Judge.

Marquese Goodman appeals the judgment and sentences entered against him on four counts of drug possession and one count of resisting without violence.¹ The State failed to establish that the officer had probable cause to arrest Mr. Goodman for failing to comply with the officer's initial, nonverbal request to stop and failed to establish reasonable suspicion that Mr. Goodman was armed and dangerous to justify the subsequent frisk. As such, we must reverse the trial court's denial of Mr. Goodman's motion to suppress the contents of a pill bottle recovered during the encounter.

I.

On the night of October 8, 2017, Marquese Goodman, clothed in a t-shirt and athletic shorts, was riding his bicycle in the middle of the street. A law enforcement officer was outside his vehicle finishing another stop when he observed that Mr. Goodman's bicycle did not have a light.² Intending to stop Mr. Goodman for that traffic infraction, the officer entered his patrol vehicle, followed Mr. Goodman, and activated his lights. At that point, Mr. Goodman looked back but continued riding. The officer then used his siren, giving it a yelp, in an effort to get Mr. Goodman to stop. The officer admitted that there were other people in the area behind him and that he did not call out to Mr. Goodman. However, he believed that Mr. Goodman should have known that the officer was directing him to stop using his lights and siren because Mr. Goodman stopped, jumped off of his bicycle, and began walking away from the officer after first looking at the officer and "acknowledging that [his] lights were activated for a traffic stop."

At that point, the officer exited his patrol vehicle, began running after Mr. Goodman and, when he was approximately twenty-five feet away, ordered him to stop. Mr. Goodman immediately complied, and then he began walking towards the officer with his bicycle. It is from this point that the officer's body camera video begins and depicts the rest of the encounter.

As the officer approached, Mr. Goodman parked his bicycle in between himself and the officer. Without being instructed to do so, Mr. Goodman walked a few feet to the curb and sat down. This forced the officer to walk around the bicycle to approach Mr. Goodman, who was seated on the curb, leaning forward with his elbows resting on his knees and his hands positioned in front of his body.

To the officer, Mr. Goodman appeared very nervous. Understandably, the officer attested to being nervous himself, in light of Mr. Goodman's initial failure to stop, his unprompted decision to sit down on the curb, and the fact that Mr. Goodman was "hunching over and leaning onto his right side." The officer believed that Mr. Goodman was "trying to conceal something," given the "way he was sitting" and his abnormal demeanor. The officer described Mr. Goodman as "using his right arm with his right leg and ha[ving] it extended to a point where he was almost resting and trying to avoid me seeing the right side of his body."

The officer asked Mr. Goodman if he had any identification on him, and Mr. Goodman responded in the negative. He then asked Mr. Goodman if he had anything on him with his name on it. Mr. Goodman replied that he did and began rummaging through his pocket to comply with the officer's request. Before he could do so, the officer abruptly asked Mr. Goodman to stand up, at which point he began to frisk Mr. Goodman. The officer stated that he decided to conduct this pat-down for officer safety as another officer was approaching because Mr. Goodman was acting as if "he was hiding something which could possibly could be a weapon on his right side."

The officer began the pat-down by focusing on that right side. He immediately felt a large, hard object in Mr. Goodman's right pocket, which the officer recognized as a pill bottle. At that point, Mr. Goodman "braced and tensed" then attempted to flee but made it only six or eight steps before being taken down by the two officers, who handcuffed him and placed him under arrest. Officers located a prescription bottle approximately two or three feet away from Mr. Goodman. The bottle contained marijuana, pills imprinted "MDMA Ecstasy," eight white rocks appearing to be cocaine, and a few Adderall pills.

The trial court denied Mr. Goodman's motion to suppress. Acknowledging that it was not as clear on the video as it was from the officer's testimony, the trial court concluded that there was reasonable suspicion that Mr. Goodman was armed in light of the officer's description of Mr. Goodman's actions and the way he was hunching over.³ The court reasoned that because Mr. Goodman attempted to flee from a lawful pat-down, the arrest was justified and the search of the pill bottle was incident to that lawful arrest.

A determination as to whether a reasonable suspicion exists under a given set of facts is a question of law that is reviewed de novo. Beahan v. State, 41 So. 3d 1000, 1002 (Fla. 1st DCA 2010). The trial court's factual findings, however, are presumed correct and reviewed to determine if they are supported by competent, substantial evidence. See Dawson v. State, 58 So. 3d 419, 421 (Fla. 2d DCA 2011).

II.

Although not argued in the trial court, the State contends on appeal that the search of Mr. Goodman was valid because the officer had probable cause to arrest him for resisting an officer without violence before the pat-down occurred. However, the State failed to adduce sufficient evidence at the suppression hearing to permit affirmance on this basis.⁴

Law enforcement officers "must have probable cause to arrest and search a person without a warrant." State v. Zachery, 255 So. 3d 957, 961 (Fla. 2d DCA 2018) (citing Gomez v. State, 155 So. 3d 1184, 1187 (Fla. 4th DCA 2014) ). Probable cause to justify an arrest requires facts and circumstances that "allow a reasonable officer to conclude that an offense has been committed." Mathis v. Coats, 24 So. 3d 1284, 1288 (Fla. 2d DCA 2010). The crime of resisting an officer without violence occurs when a suspect (1) knowingly (2) resists, obstructs, or opposes a law enforcement officer (3) who is in the lawful execution of any legal duty. See § 843.02, Fla. Stat. (2017) ; Brown v. State, 199 So. 3d 1010, 1012 (Fla. 4th DCA 2016) ("[T]he state's evidence was insufficient to prove that the defendant knew of the police's intent to detain him.").

Generally, "flight, standing alone, is insufficient to form the basis of a resisting without violence charge." C.E.L. v. State, 24 So. 3d 1181, 1186 (Fla. 2009). "[A]n individual who flees must know of the officer's intent to detain him." Id.; accord McClain v. State, 202 So. 3d 140, 141, 143 (Fla. 2d DCA 2016) (concluding that the defendant's conviction could not stand where he ran into his grandmother's duplex before the officer could order him to stop); S.B. v. State, 31 So. 3d 968, 970 (Fla. 4th DCA 2010) ("[A]lthough the evidence may reflect that S.B. was aware that he had caught the officers' attention when he began to flee, it does not prove that he had knowledge that the officers intended to detain him.").

Where there is a command to stop, there must be evidence that the individual actually heard it (or perceived it, if it was nonverbal) and that the individual understood that the command was directed at him. Compare O.B. v. State, 36 So. 3d 784, 788 (Fla. 3d DCA 2010) ("[T]here is no evidence that O.B. heard any order to stop; in fact, he testified that when he ‘took off running,’ he did not hear the officers issue a command, and he was unaware whether an officer was after him in particular."), with Montanez v. City of Orlando, 678 Fed. Appx. 905, 909 (11th Cir. 2017) (finding that an officer had probable cause to arrest the defendant for resisting an officer without violence where, after the officer commanded the two bicyclists to stop, one complied while the other continued to peddle away, making it reasonable for the officer to conclude that the defendant heard the command but deliberately refused to obey), and United States v. Merricks, 572 Fed. Appx. 753, 757 (11th Cir. 2014) (finding probable cause to arrest for resisting or opposing the police without violence where defendant had pedaled faster after realizing officers were following him with police lights activated before walking away after failing to heed the officers' verbal commands to stop).

Here, there is insufficient evidence to justify the arrest of Mr. Goodman for intentionally fleeing from the officer before the pat-down. The officer's initial command to stop—the activation of lights and the yelp of a siren—was nonverbal. Knowledge of an officer's intention to detain a pedestrian or bicyclist can be established by nonverbal communication under the appropriate facts. However, in this case the defendant actually obeyed the subsequent verbal command, strongly suggesting that the preceding, ambiguous law enforcement activity could have been perceived by a reasonable cyclist as unrelated to himself. Without testimony about how closely the officer followed behind Mr. Goodman with his lights activated or for how long, we cannot surmise whether Mr. Goodman knew that the officer was directing him to stop. Cf. State v. Kirer, 120 So. 3d 60, 61, 64 (Fla. 4th DCA 2013) (finding probable cause that the driver fled or eluded the deputy by making five turns after the deputy followed two car lengths behind the driver for almost five minutes with lights and siren activated and ordered the...