Rios v. State

• Decision Date: 25 July 2007
• Docket Number: No. 2D06-4381.,2D06-4381.
• Citation: 975 So.2d 488
• Parties: Richard RIOS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

975 So.2d 488

Richard RIOS, Appellant, v. STATE of Florida, Appellee.

No. 2D06-4381.

District Court of Appeal of Florida, Second District.

July 25, 2007.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Richard Rios was charged with possession of cocaine. After the trial court denied his motion to suppress the contraband, Rios pleaded guilty, reserving the right to appeal the dispositive issue underlying the denial of the motion. We reverse.

Two officers with the Pinellas County Sheriff's Office had an arrest warrant for Robert Rios. They carried with them a jail mugshot of this person, which contained a listing of physical characteristics — black male¹ with black hair and brown eyes; 5'8" tall; 150 pounds. The officers had also done some computer research on Robert Rios and determined that he had a tattoo on his neck saying "Saneta."

When the officers arrived at the address listed on the warrant, they saw in front of the house a "light-skinned black male or Hispanic-looking male" with black hair and dark eyes. The officer responsible for executing the arrest warrant, who provided most of the testimony at the suppression hearing, thought the man was 5'8" to 5'10" tall or maybe a little taller.² The officers announced that they were looking for Robert Rios. The man said he was Richard, not Robert. The officers asked for identification. The man said his wife had his driver's license in the house. The backup officer testified that when the officers initially approached the man, he tried to back away toward the house. The backup officer "stood behind him." The warrants officer knocked on the door, but no one answered.

In her testimony, the warrants officer explained that for about fifteen to twenty minutes, she went back and forth between the man and the house, alternating between interacting with the man and trying to get someone's attention inside. The officer finally noticed that the man had a tattoo saying "Saneta" on his neck, whereupon she attempted to place the man in custody. The officers searched him as part of this process and found cocaine. Only after the man was in custody did his wife come out and produce his identification, which demonstrated that he was indeed Richard Rios, the defendant-appellant, not Robert Rios.³

In denying Rios's motion to suppress the evidence seized from him, the trial court found that "under all the circumstances within their knowledge at the time of [Richard Rios's] arrest, the officers had probable cause to reasonably believe that [Richard Rios] was in fact the person for whom they had a warrant" and that the search of Rios and the seizure of the cocaine were incident to the lawful arrest.

Our review of the trial court's ruling on a motion to suppress concerns "a mixed question of law and fact. The standard for reviewing facts is whether competent, substantial evidence supports the trial court's factual findings. The historical facts should be reviewed only for clear error. The trial court's application of law is reviewed de novo." E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001)).

The first step in our inquiry is to identify the level of the initial contact between the officers and Rios, whether a consensual encounter or an investigatory stop as described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).⁴ A "consensual encounter ... involves only minimal police contact. 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) (citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). In contrast, a "citizen encounter becomes an investigatory ... stop[ ] once an officer shows authority in a manner that restrains the defendant's freedom of movement such that a reasonable person would feel compelled to comply." Parsons v. State, 825 So.2d 406, 408 (Fla. 2d DCA 2002). In short, an investigatory stop occurs when a "reasonable person would not feel free to leave." Hrezo v. State, 780 So.2d 194, 195 (Fla. 2d DCA 2001).

The evidence presented at the motion hearing indicates that the initial contact with Rios was an investigatory stop, not a mere consensual encounter. The backup officer testified that when the warrants officer approached Rios and began talking to him, Rios began backing toward the house. The backup officer then moved behind Rios. The officer testified that his role was to "stand[ ] behind him to cut off any escape route if he tried to run" and to prevent him from going into the house. The warrants officer testified that the process of talking with Rios and knocking on the door lasted fifteen to twenty minutes.

Blocking a person's path or otherwise restraining movement is one indication that a stop has occurred. See, e.g., Alvarez v. State, 515 So.2d 286, 290 (Fla. 4th DCA 1987) (partially blocking suspect's sole exit from train compartment was one factor indicating that a detention had occurred); United States v. Bowles, 625 F.2d 526, 532 (5th Cir.1980) (Fourth Amendment seizure occurred when officer ran past suspect, held out credentials, and turned to face him, thus blocking his path); cf. State v. Livingston, 681 So.2d 762, 763-64 (Fla. 2d DCA 1996) (that officers did not block suspect's path was one factor in court's conclusion that the contact was a consensual encounter); State v. Mitchell, 638 So.2d 1015, 1016 (Fla. 2d DCA 1994) ("An officer may address questions to anyone on the street, and unless the officer attempts to prevent the citizen from exercising his right to walk away, such questioning will usually constitute a consensual encounter rather than a stop."). Because the uncontradicted evidence indicates that Rios was, at the outset of the encounter, prevented by the officers from entering his own house or otherwise leaving the scene, we conclude that the contact between Rios and the officers was a stop from its inception.

The next step in the analysis is to determine whether the officers had reasonable suspicion to support their investigatory stop of Rios. The principle of Terry is that the officers would have been permitted to detain Rios "briefly for an investigatory stop if they ha[d] a reasonable, articulable suspicion based on objective facts that [he] ha[d] engaged in, or [was] about to engage in, criminal activity." United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000); see also Popple, 626 So.2d at 186 ("a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime"); § 901.151(2), Fla. Stat. (2006). Furthermore, the reasonable suspicion must exist at the beginning of the investigatory stop. See Terry, 392 U.S. at 19-20, 88 S.Ct. 1868 ("[I]n determining whether the seizure and search were `unreasonable' our inquiry is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."); S.V.J. v. State, 891 So.2d 1221, 1223 (Fla. 2d DCA 2005) ("For reasonable suspicion to exist, the search must be justified at its inception...." (Citation and internal quotation marks omitted.)); cf. Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ("It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.").

Here, there was no testimony as to present criminal activity in which Rios might have been engaged or potential future criminal activity; indeed, criminal activity during these timeframes was not an issue at all. Moreover, the only potential source of reasonable suspicion as to past criminal acts in which Rios might have engaged was the activity for which his half-brother Robert Rios was to be arrested pursuant to the arrest warrant. However,

"[t]he existence of an arrest warrant is of no moment on the question whether a particular person police officers come across is in fact the subject of the warrant. The warrant supplies the officers with probable cause to arrest the person it names and describes, not a license to duck the reasonable suspicion requirement and stop someone they only have a subjective hunch is that person." United States v. Hudson, 405 F.3d 425, 439 n. 9 (6th Cir.2005).

Dennis v. State, 927 So.2d 173, 175 (Fla. 2d DCA 2006); see also Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004) ("To justify an investigative detention, a law enforcement officer must have a reasonable suspicion that a person has committed or is about to commit a crime. A hunch or a mere suspicion is...