State v. Rand

• Decision Date: 10 February 2017
• Docket Number: CASE NO. 1D15–335
• Parties: STATE of Florida, Appellant, v. Ricky Alphonso RAND, Appellee.
• Court: Florida District Court of Appeals

209 So.3d 660

STATE of Florida, Appellant,

v.Ricky Alphonso RAND, Appellee.

CASE NO. 1D15–335

District Court of Appeal of Florida, First District.

Opinion filed February 10, 2017.

Rehearing Denied February 13, 2017

Pamela Jo Bondi, Attorney General, Matthew Pavese, Assistant Attorney General, for Appellant.

Janet E. Johnson and Andrew B. Greenlee of Andrew B. Greenlee, P.A., Tallahassee, for Appellee.

ON MOTION FOR REHEARING

OSTERHAUS, J.

Ricky Rand seeks rehearing on the basis that we incorrectly relied on objected-to, hearsay testimony of a police officer in reversing the trial court's decision to suppress evidence in his case. We agree and grant his motion for rehearing, vacate the previous panel opinion, and replace it with this opinion affirming the trial court's decision.

I.

A Duval County middle school invited the public to use its campus track anytime except for during school hours. It posted signs on the fence saying as much in all capital letters. And it left the gate open to the public at night. When, late one night in March 2014, Mr. Rand began exercising at the track, a school district law enforcement officer saw him and immediately arrested him for trespassing at the track. During the post-arrest search of Mr. Rand's pockets, the officer found a handgun. The State then charged Mr. Rand for crimes related to carrying the firearm.

The officer didn't know the school's open-track policy when he arrested Mr. Rand. He disregarded the signs on the track's fence authorizing public use of the track after 4 p.m. and before 7 a.m. And he had not before noticed that the school kept the gate open at the track all night long. Mr. Rand moved to suppress the gun evidence, arguing that he wasn't trespassing and that the school board officer lacked probable cause to arrest him. At the suppression hearing, the State made three substantial concessions. The State conceded first that Mr. Rand wasn't trespassing, but that the signs on the track's fence invited and authorized public use of the track at night. The State next conceded that Mr. Rand wasn't doing anything wrong at the track, but was "in actuality, and in retrospect, ... walking the track." Finally, the officer conceded that he'd arrested Mr. Rand immediately without any investigation. The officer handcuffed Mr. Rand even as he attempted to explain his legitimate reason for being at the track, and even though the signs inviting public access hung on the fence just feet from where the officer arrested Mr. Rand.

In spite of its various concessions, the State argued under Heien v. North Carolina , ––– U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014), that probable cause remained to arrest and search Mr. Rand because the officer had made a reasonable mistake about the school's track access policy. Heien excuses "objectively reasonable" legal mistakes by officers that lead to an arrest. But the trial court rejected the State's argument. While the trial court accepted that the officer didn't know the track policy, it nevertheless faulted the officer's ignorance of the obvious posted policy: "There was absolutely no investigation done to determine whether or not the defendant had a lawful reason to be on the property." The trial court concluded that there was "no competent and substantial evidence [supporting] the arrest."

We now affirm because the law and evidence support the trial court's decision. Although probable cause can exist notwithstanding a "reasonable" mistake of law, the school officer's ignorance and disregard of the school's posted trespassing policy wasn't objectively reasonable under these circumstances, where: (1) the school hung conspicuous signs on the fence inviting the public to use its track at night; (2) the school left the gate at the track open at night while locking down access to other parts of the campus; (3) other school officers knew the open-track policy and had confirmed it personally to Mr. Rand; and (4) the evidence indicated that the public used the track after school hours. A reasonable person would not have mistaken the policy, nor believed that a crime was being committed. The school district officer, no different than other officers, must pay attention to the laws he is responsible for enforcing. And "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." Heien , 135 S.Ct. at 539–40.

II.

A.

A trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. Conn o r v. State , 803 So.2d 598, 608 (Fla. 2001) ; Robinson v. State , 885 So.2d 951, 953 (Fla. 1st DCA 2004). The standard of review for factual findings is whether competent, substantial evidence supports the trial court's findings. State v. Young , 974 So.2d 601, 608 (Fla. 1st DCA 2008). We review interpretations of law de novo. Id. ; Ornelas v. United States , 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). On appeal, a motion to suppress reaches the appellate court "clothed with the presumption of correctness." McNamara v. State , 357 So.2d 410, 412 (Fla. 1978). The court must review all evidence and make reasonable inferences and deductions from mixed evidence "in a manner most favorable to sustaining [a trial court's] ruling." Van Teamer v. State , 108 So.3d 664, 666 (Fla. 1st DCA 2013) (quoting State v. Gandy , 766 So.2d 1234, 1235–36 (Fla. 1st DCA 2000) ).

The Florida Constitution further requires that we resolve search and seizure issues "under the requirements of the Federal Constitution, as interpreted by the United States Supreme Court." Young , 974 So.2d at 608 (citing Art. I, § 12, Fla. Const.; State v. Butler , 655 So.2d 1123, 1125 (Fla. 1995) ). Arrests are the most intrusive of Fourth Amendment seizures and require probable cause. An officer has probable cause if "the totality of the facts known to the officer at the time would cause a reasonable person to believe that an offense has been committed." Van Teamer , 108 So.3d at 666 (quotation omitted). This standard doesn't foreclose law enforcement officers from approaching and asking questions of suspected trespassers. But it does preclude an officer from immediately arresting and searching individuals in the absence of "specific and articulable facts" indicative of a crime. See Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court-fashioned "exclusionary rule" requires suppressing evidence that is seized when officers arrest someone without a warrant or probable cause, which is a means of deterring Fourth Amendment violations by government officials who carry out unlawful searches and seizures. See Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; Arizona v. Evans , 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).

B.

A district school board officer arrested Ricky Rand while he exercised at night at the school track just a block from his house. As the officer drove by the school track, he noticed "a black male and dark clothing" across a "very poorly lit" field at the other end of the track. After shining a light on Mr. Rand, Mr. Rand walked over to the police car, where the officer immediately arrested him for being at the track.

But Mr. Rand did not violate any law or school policy by using the school track at night. State trespassing laws gives substantial leeway to schools to invite people onto their campuses. And Mr. Rand did not act unlawfully by accepting the school's invitation to use its track. See § 810.097(1)(a), Fla. Stat. (defining unlawful trespassing on campus as lacking "legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon the school property"). In fact, the school kept the track open at night and posted signs inviting the public to access the track after school hours. Mr. Rand also had a legitimate reason for being there; he was walking the track. The State conceded during the hearing that it was "not disputing the fact that Mr. Rand ... was walking the track." This came after the officer had already agreed that no evidence supported the arrest except for his initially seeing Mr. Rand off the track: "all the evidence was consistent with Mr. Rand being there to walk the track, other than ... his location [when the officer] first saw him."

For the State's part, it conceded below that the officer made a legal mistake. It acknowledged that the signs on the fence "admittedly would give someone license to use the track during those hours." The school officer testified that he'd patrolled the school for years and was "very familiar with this property," but he'd never noticed the signs inviting public to use the track before. The officer admitted that the signs were "essentially an invitation to the public to enter that track on hours that do not conflict with [school]."¹ The officer, however, had failed to read the signs on the fence, or investigate why Mr. Rand was there before arresting him.²

In addition to its concessions about the school's invitation to use the track, Mr. Rand's exercise, and the lack of an investigation, the State acknowledged that the school left a track-access gate open at night. The open gate gave the public easy access to the track. In Mr. Rand's case, for instance, he testified to simply walking down the sidewalk from his house and entering the open gate about 60 feet away from the track surface itself. But only after Mr. Rand's arrest, did the officer bother to confirm that Mr. Rand had entered an open gate at the track.³ And it wasn't an anomaly. Pictures and testimony in the record demonstrate that the gates were routinely left open. There were pictures of open gates in the record, taken both during the day and at night, next to signs inviting after hours track use. Mr. Rand wasn't the only one using the track after school hours; other pictures in the record showed unidentified adults using the track. Other school district officers confirmed to Mr. Rand "that as long as ... the...