State v. J.C.

• Decision Date: 04 March 2020
• Docket Number: Case No. 2D19-712
• Citation: 292 So.3d 30
• Parties: STATE of Florida, Appellant, v. J.C., Appellee.
• Court: Florida District Court of Appeals

292 So.3d 30

STATE of Florida, Appellant,

v.J.C., Appellee.

Case No. 2D19-712

District Court of Appeal of Florida, Second District.

Opinion filed March 4, 2020

Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

LaROSE, Judge.

The State appeals an order granting J.C.'s motion to suppress evidence. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). We reverse.

I. Background

The State filed a delinquency petition against J.C. for possession of marijuana, less than twenty grams, a first-degree misdemeanor. See § 893.13(6)(b), Fla. Stat. (2018). J.C. moved to suppress evidence obtained during what he claims was an unlawful arrest and subsequent search.

The arresting officer, Deputy Blake, was the only witness at the suppression hearing. He testified that J.C. was on probation and subject to a 7:00 p.m. to 5:30 a.m. curfew. Deputy Blake together with another deputy visited J.C.'s home to conduct a curfew check one night, after midnight.

J.C. and his mother were sitting on the front porch. Deputy Blake saw open alcohol containers and a marijuana "blunt roach" cigarette within inches of J.C. Deputy Blake asked J.C.'s mother: "What's this? What are we doing?" The mother responded: "Oh, nothing. That's not his." Deputy Blake then asked her: "What's not his?" She answered: "Oh, all of that." He asked her who it belonged to and she said: "Oh, it's his cousin. She's inside." Deputy Blake testified that it appeared J.C. and his mother were drinking together as the drinks were in front of each individual. Deputy Blake never saw any cousin.

Deputy Blake testified that, "based on the totality of everything -- [J.C.] being outside of his residence after curfew, having open alcohol and the blunt -- [Deputy Blake] was going to place him under arrest for violating his probation." Deputy Blake told J.C.: "All right. Stand up." Before Deputy Blake made any physical contact with J.C., he asked: "You got anything else on you I need to know about?" J.C. replied: "Yeah. I got a couple baggies on me." J.C., without prompting, "reached into his pocket, [and] pulled out a couple of clear plastic baggies with some green stuff in it." Deputy Blake recognized the green substance as marijuana. Field testing confirmed his observation.

Deputy Blake took the bags, "and then proceeded to grab [J.C.'s] hands to place him in cuffs." J.C. told the deputy, "You can't do that" and took his hands away. Deputy Blake had "to get a hold of him a little bit better," and told J.C., "Don't -- don't do that. Just go to the ground." "[J.C.] got down on his knees and [Deputy Blake] put him in cuffs without any issue."

At the suppression hearing, defense counsel conceded that the deputies "were perfectly fine to be where they were" when they came to the house for a curfew check. However, defense counsel asserted that Deputy Blake actually arrested J.C. when he ordered him to stand up. Counsel also maintained that J.C.'s production of the contraband from his pocket was a search. Defense counsel argued that Deputy Blake lacked probable cause to arrest or search J.C. because the marijuana cigarette and alcohol were in a jointly occupied area and J.C. exerted no dominion or control over these items. Defense counsel further argued that a curfew violation did not justify the arrest because being on the front porch was not a probation violation.

The State countered that J.C. voluntarily pulled the bags of marijuana from his pocket; thus, the deputies did not conduct a search. The State also asserted that the encounter at that time was an investigatory stop and that Deputy Blake had reasonable suspicion to perform the stop based on his observations of the curfew violation, alcohol, and marijuana cigarette. Once J.C. displayed the bags, Deputy Blake had probable cause to arrest him.

The trial court declined to rule definitively on whether being outside on the porch was a curfew violation. However, the trial court found that Deputy Blake "was well within his right to go up to the house and – and arrest [J.C.] for a curfew violation based on what he was observing there." The trial court then stated:

But I don't think that that's what this motion turns on. I think this motion more turns on -- on whether or not there was reasonable suspicion for the officer to seize the -- to get the -- elicit the statements and seize the marijuana because of the proximity issue that has been laid out in Hatcher[ v. State, 15 So. 3d 929 (Fla. 1st DCA 2009) ].

The trial court ultimately concluded that there was "not reasonable suspicion to make the arrest and seize the marijuana [cigarette] just because it was, like, right in front of [J.C.]."¹ The trial court granted the motion to suppress the marijuana cigarette, the bags, and J.C.'s statements. The trial court repeated that "the curfew violation ... was fine to do," but it believed the two things were "separate and apart from one another." In a written order, the trial court found there was no probable cause to arrest J.C. for the marijuana cigarette and suppressed "[a]ny evidence discovered as a result of the detention and subsequent search."

II. Analysis

Because "the facts are undisputed, we review the court's application of law de novo." See Villanueva v. State, 189 So. 3d 982, 985 (Fla. 2d DCA 2016) ; see generally State v. Roman, 103 So. 3d 922, 924 (Fla. 2d DCA 2012) ("[I]n reviewing a trial court's ruling on a motion to suppress, this court must give deference to the trial court's factual findings if those findings are supported by competent, substantial evidence, but this court must review the trial court's ruling of law de novo."). We first address the nature of the encounter between the deputies and J.C., and then the "search" of J.C.

A. The Encounter

The parties agree that the initial encounter on the porch was lawful. They dispute the level of the encounter at the point where Deputy Blake ordered J.C. to "stand up."

1. The Level of the Encounter

We recognize three levels of police-citizen encounters: (1) a consensual encounter, (2) an investigatory stop, and (3) an arrest. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). In a consensual encounter, the citizen is free to leave. Id.; see also Blake v. State, 939 So. 2d 192, 195 (Fla. 5th DCA 2006) ("Encounters are usually consensual where the officer does not display a weapon, touch the defendant without consent, use language that might indicate compliance was compelled, intimidate the defendant, or restrict the defendant's freedom to walk away.").

An investigatory stop, on the other hand, occurs when, "under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart." See Popple, 626 So. 2d at 188 (citing Jacobson v. State, 476 So. 2d 1282 (Fla. 1985) ); see, e.g., Thomasset v. State, 761 So. 2d 383, 386 (Fla. 2d DCA 2000) ("Here, an episode that began as a consensual encounter became an investigatory detention when the deputy requested Thomasset to step out of his vehicle."). An investigatory stop "amount[s] to a mere ‘minor inconvenience and petty indignity,’ which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer's suspicion." Terry v. Ohio, 392 U.S. 1, 10-11, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (footnote omitted) (quoting People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32, 36 (N.Y. 1964) ). "An arrest involves a higher level of police intrusion than does an investigatory stop." State v. Hendrex, 865 So. 2d 531, 534 (Fla. 2d DCA 2003).

Deputy Blake directed J.C., a juvenile probationer, to "stand up." This was but a minor inconvenience. See generally Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (stating that ordering a driver to stand outside the vehicle—instead of sitting in the driver's seat—"can only be described as de minimis ," is "not a serious intrusion upon the sanctity of the person," and "hardly rises to the level of a petty indignity" (internal quotations marks omitted) (quoting Terry, 392 U.S. at 17, 88 S.Ct. 1868 )). Under the totality of the circumstances, Deputy Blake conducted, at most, an investigatory stop when he commanded J.C. to stand. See J.C. v. State, 15 So. 3d 870, 872 (Fla. 2d DCA 2009) ("Considering the totality of the circumstances—that two officers wearing range vests and badges pulled over, exited their car, and while approaching J.C., told him to ‘hang on’—such statement amounts to an order and a show of authority.... We conclude that a reasonable person would not feel free to walk away but rather would feel compelled to comply with a police officer's command, ‘I've got to talk to you for a minute. Hang on.’ As such, we conclude that this was an investigatory stop for which reasonable suspicion of the commission of a crime is necessary.").

J.C.'s arguments to the contrary do not persuade us. That J.C. was not free to leave did not render the encounter an arrest. See Popple, 626 So. 2d at 188 (stating defendant was not free to leave during investigatory stop). Nor did Deputy Blake's intent to arrest or belief that probable cause existed transform the investigatory stop into an arrest. See Hendrex, 865 So. 2d at 536 ("Our view [that the police conduct constituted an investigative stop] is not changed simply because some of the officers may have had the intent to arrest appellees prior to stopping them. Actions taken by a law enforcement officer must be examined objectively as to how they affect a suspect and not from the standpoint of what the officer's intent was." (alteration in original) (quoting State v. Perera, 412 So. 2d 867, 871 (Fla. 2d DCA 1982) )). Deputy Blake did not communicate his intent to arrest J.C. until he attempted to place J.C. in handcuffs.

Further, Deputy Blake's question, "You got anything...