State v. Maxwell

• Decision Date: 09 May 2018
• Docket Number: No. 3D17–1597,3D17–1597
• Citation: 245 So.3d 994
• Parties: The STATE of Florida, Appellant, v. Curtis MAXWELL, Appellee.
• Court: Florida District Court of Appeals

245 So.3d 994

The STATE of Florida, Appellant,

v.Curtis MAXWELL, Appellee.

No. 3D17–1597

District Court of Appeal of Florida, Third District.

Opinion filed May 9, 2018

Pamela Jo Bondi, Attorney General and David Llanes, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender and Howard K. Blumberg, Special Assistant Public Defender, and Yamila Lorenzo and Shannon McGee, Certified Legal Interns, for appellee.

Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

SALTER, J.

The State of Florida appeals a circuit court order (the "Suppression Order") granting a motion to suppress physical evidence on the basis of an unlawful pat-down search of the appellee, Curtis Maxwell. We reverse.

I. The Record—Detention, Pat–Down Search, and Arrest

On December 26, 2016, at around midnight, officers Lee Clair and Kraig Bryan of the Miami Beach Police Department responded, within twenty to thirty seconds, to a dispatch call regarding a large fight at the TGI Fridays at 500 Ocean Drive. The dispatch call had advised "that it was a very large fight involving many people with tables and chairs being thrown."

Upon arrival to the scene, the officers were flagged down by a TGI Fridays waiter, who pointed to a nearby group of people who were walking northbound on Ocean Drive. The waiter said that the group was involved in the fight, but did not tell the officers whether the group was involved as perpetrators or victims. The group consisted of eight to ten people, including Mr. Maxwell, at least three young men, and four or five young women. There were no other persons between the waiter and the group.

Responding to the tip, officers Clair and Bryan approached the group on their Department all-terrain vehicles (ATVs). Both officers were in uniform. Neither had activated their Department-issued body cameras at that time.

Officer Clair testified Mr. Maxwell and a woman accompanying him made eye contact with the officers and one of the women in the group grabbed Maxwell in an attempt to run northbound on Ocean Drive. Officer Bryan, however, testified only that the persons in the group were walking fast when the officers approached; he told them to stop, and they did.

Officer Clair testified that his attention was quickly drawn to Mr. Maxwell, because he was one of the two persons in the group "trying to move quick at the time just prior to being stopped," and after that because he "began to act nervous. He was looking around, avoiding eye contact, and then he began to touch his jacket pocket." Officer Clair said that Mr. Maxwell was dressed in a "big heavy jacket" and he touched it with his right hand and then he would touch the same side with his left hand, "which is across his body which seemed out of context."

After observing Mr. Maxwell repeat these touches to his jacket, Officer Clair suspected that Mr. Maxwell was carrying a weapon and "had him walk over so I could conduct a pat down for weapons." Officer Clair testified that his suspicions were raised because Mr. Maxwell's repeated touches to his jacket were "not a natural behavior that people do," and because he had been trained "when people carry a firearm they subconsciously touch the firearm whether it be with their arm or their hands."

Officer Clair asked Mr. Maxwell to step over to his ATV, "and he hesitated he kept his arms at his side" when asked three times to put his arms on the officer's ATV so his hands would be on it. Officer Clair finally placed Mr. Maxwell's hands on the ATV and conducted the pat search. When he touched the right side of Mr. Maxwell's jacket, "I immediately felt the firearm."

Officer Bryan then came over to remove the firearm from Mr. Maxwell's jacket. During a further pat down of Mr. Maxwell, a bag of marijuana was recovered. Mr. Maxwell was arrested and ultimately charged with carrying a concealed firearm and unlawful possession of cannabis.

II. The Suppression Order

The defense filed a motion to suppress the firearm and marijuana.¹ The trial court heard the testimony of the two officers, heard argument of counsel, and considered legal memoranda on the issues.

In the detailed ten-page Suppression Order, the trial court granted the motion to suppress as to both the firearm and the marijuana, though acknowledging (appropriately) that Mr. Maxwell's detention "was in conformity with the requirements of law," based on information reported to the officers that a "melee had broken out" at TGI Fridays. The trial court found "a sufficient basis for the officers to detain the group and make brief, reasonable inquiries," and "nothing objectionable about the detention itself."

The trial court's assessment of the pat-down search, and its application of law to the historical facts, however, led it to conclude that the officers lacked an "articulable reasonable suspicion" or "probable cause" to support the pat-down search in conformance with applicable law. The trial court's rejection of case law provided by the State appears to have been grounded on several considerations:

• Neither Mr. Maxwell nor any of the members of his group "bore any indications of recent combat," and the initial report by the waiter did not mention any use of firearms or shots fired. The officers did not see "bruises, flowing blood, or fresh wounds

."

• Although Mr. Maxwell did not testify, his repeated movements of both hands to his jacket may have reflected "his own apprehension," because "he was a very young black man confronted by two armed and uniformed police officers. His hand movements might have been nothing more than a nervous habit. He might have been feeling for his wallet, to assure himself that if the police demanded identification he could produce it."

• The trial court's concern on this point was reiterated several paragraphs later in the Suppression Order as a basis for distinguishing the present case from one cited by the State: "[N]ervousness on the part of a citizen confronted by uniformed

and armed police officers is commonplace. Mr. Maxwell is a young black man. Reports of recent events in Ferguson, Missouri; or in Baltimore, Maryland; may weigh heavily on his mind and, rightly or wrongly, color his perception of police-citizen encounters."²

• The trial court concluded that the pat-down search "was not justified by a suspicion based on more than speculation that Mr. Maxwell was armed and presently dangerous." (Emphasis provided).

The trial court granted the motion to suppress the firearm and a bag of marijuana, and this appeal followed.

III. Analysis

A. Standard of Review

We review the Suppression Order to determine whether competent substantial evidence supports the trial court's findings of historical fact. State v. Roman, 983 So.2d 731, 734 (Fla. 3d DCA 2008). We review that evidence and any inferences from it in favor of supporting the trial court's ruling. Pagan v. State, 830 So.2d 792, 806 (Fla. 2002).

But we must "independently review mixed questions of law and fact that ultimately determine constitutional issues." Schoenwetter v. State, 931 So.2d 857, 866 (Fla. 2006). The trial court's application of law to the facts in finding reasonable suspicion is subject to de novo review. State v. Cruse, 121 So.3d 91, 95 (Fla. 3d DCA 2013) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ).

B. "Reasonable, Articulable Suspicion" and "Probable Cause"

Under the Fourth Amendment of the U.S. Constitution and Florida law, an officer may conduct an investigatory stop or temporary stop when there is a reasonable, articulable suspicion that an individual has committed, is committing, or is about to commit a crime. Mackey v. State, 124 So.3d 176, 183 (Fla. 2013) ; see also § 901.151(2), Fla. Stat. (2017) (the "Florida Stop and Frisk Law").

In addition to a lawful detention, a police officer may conduct a "pat-down of the suspect if the officer has a reasonable belief that the suspect ‘is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person....’ " D.H. v. State, 121 So.3d 76, 80 (Fla. 3d DCA 2013) (quoting § 901.151(5) ). More specifically, Florida's "Stop and Frisk Law" provides:

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

§ 901.151(5).

In the context of a stop and frisk, the term "probable cause" "has been construed to mean ‘articulable suspicion,’ ‘reasonable belief,’ or ‘founded suspicion.’ " Cole v. State, 190 So.3d 185, 188 (Fla. 3d DCA 2016). In the present case, Mr. Maxwell does not contest whether the stop was lawful, and as noted, the trial court found that Mr. Maxwell's detention was "in conformity with the requirements of law."

It is also worth noting that the pat-down or "frisk" was limited at its outset to Mr. Maxwell's jacket, where Officer Clair's training and observations of Mr. Maxwell's unusual hand movements had focused the officer's attention. The search, in short, was "only to the extent necessary to disclose, and for the purpose of disclosing" the presence of a dangerous weapon, as authorized by section 901.151(5).

The sole question, then, is whether the trial court followed applicable law in evaluating whether Officer Clair had probable cause to believe that Mr. Maxwell was armed with a dangerous weapon and offered a threat to the safety of the officer or any other person. We conclude that the trial court failed to follow the statute and applicable...