Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TAMAR R. FIELDS, ) ) Appellant, ) ) v. ) Case No. 2D18-5067 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed March 25, 2020. Appeal from the Circuit Court for Lee County; J. Frank Porter, Judge. Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Tamar R. Fields appeals his convictions and sentences for (1) trafficking in cocaine, (2) resisting an officer without violence, and (3) loitering or prowling. Fields entered into a negotiated plea agreement and reserved for appeal the denial of his dispositive motion to suppress. He contends that a deputy did not have reasonable suspicion to detain him or probable cause to arrest him. We agree and reverse his convictions and sentences and remand for discharge. This case arose from a 911 call made on November 21, 2017, at approximately 10:00 p.m. by a resident (the caller) in the Linda Loma Drive subdivision in Fort Myers. The 911 call was admitted into evidence at the suppression hearing. In addition, the caller and a deputy testified for the State. A cousin of Fields who lived nearby testified for the defense. In the 911 call, the caller said that she saw a black man on her elderly neighbors' doorstep at the corner of Luanne Lane and Juanita Avenue and wanted a police cruiser to come by. She was walking her dog when she saw the man on their doorstep, and "he was trying to turn the doorknob." She knew the man did not live there. At another point she said the man was "standing at the door turning the knob." She went home to get her phone and came back and called 911. She had seen the man on the doorstep about fifteen minutes before she called.1 When she returned, the man was standing in front of the neighbors' house and started walking towards her, and then she turned away. She described the man as tall, black, and in his twenties. He was wearing a white t-shirt, knit cap, hoodie, and blue jeans. She did not think she was in danger but expressed fear of him seeing her walk back to her house. She lived one street over. She stood on the street and watched the man. A car stopped by him, the man talked to the person in the vehicle briefly, and then the car left. She could see the 1At the suppression hearing, the caller testified that she went to get her phone and arrived back at the neighbors' property about two minutes later and that it did not take her fifteen minutes. -2- man on and off, and she stayed on the line with 911 until she saw the police lights down the street. The caller testified at the suppression hearing that she saw a black man standing at her neighbors' front door. The caller was asked if she observed anything else when the man was standing at the neighbors' door, and she said no. Then she stated, "I said [in the 911 call] I saw him jiggle the knob, but I don't recall saying that, so I'm not gonna sit here and say that I saw that." The deputy testified that he received information that a black male was attempting to make entry into a home and that the man was last seen at the intersection of Luanne and Juanita. The deputy responded to the call at around 10:00 p.m. and saw a man matching the description "a block or two past that intersection in the roadway, walking." The deputy did not recall seeing anyone else out, and he considered the area to be a high crime area but did not specify any particular type of crime. The deputy activated his lights and got the man's attention. The man, who turned out to be Fields, turned around to face the deputy and continued "his slow walk." However, instead of walking toward the deputy, Fields "was kind of, like, trying to walk around." As the deputy asked Fields questions about where he was coming from and if he lived in the area, Fields gave no verbal response. The deputy needed to determine if Fields "was involved in any criminal activity or if there was a crime that occurred." The deputy was walking towards Fields who was putting his hands in and out of his pockets or his pants. Fields did not comply with the deputy's demands to not put his hands in his pockets and to not walk away. As the deputy tried to close the gap between them, Fields tried to walk around another way to make the gap greater. The deputy testified: -3- So, when I finally get to him, we, kind of, both walk in the direction of where my vehicle was and we ended up, like, right there at the vehicle. So, using that as, kind of, like, a place where he wouldn't be able to walk further away, that's when I grabbed his arm, to say we need to stop reaching in our pants because I don't know what's going on. At that point the deputy detained Fields and later arrested him for resisting an officer without violence and loitering or prowling.2 When the deputy initially saw the man walking in the roadway, the deputy did not see him doing anything that caused immediate concern and did not observe any criminal activity. The deputy testified that he was investigating "[a] possible burglary or an attempted burglary" that evening. Fields was never arrested for burglary or attempted burglary. Harvey Andrew Cherry, who is Fields' second cousin, testified for the defense. Cherry lives on Char Ann Drive in Fort Myers. Fields is from New York and came to visit Cherry a little before Thanksgiving of 2017. Cherry testified that Fields "was only there for a couple hours. He went to the store and never came back." Cherry's residence is around the corner from Juanita Avenue. The defense argued that the deputy did not have probable cause to arrest Fields for loitering or prowling and did not have reasonable suspicion to detain him. Defense counsel requested that any evidence found on Fields should be suppressed. The trial court ruled as follows: THE COURT: I have a citizen who observes the defendant jiggling the lock or the door handle of a neighbor. She identifies—she calls 911. She identifies the clothing that he was wearing, the person that did this. The person doesn't leave the neighborhood. The citizen stays on the phone with 2A later search revealed that Fields had a bag of cocaine on his person. -4- the 911 operator giving details, watching this individual until the sheriff's deputy or law enforcement arrives. I think there was a basis for the Terry stop when I factor all of that in and not just bits and pieces. So, there was reasonable suspicion by the officer. I deny the motion. MS. CALDERONE: Just so that I can have a clear record, are you saying that there was probable cause for the officer to arrest him for loitering and prowling? THE COURT: I am. At the suppression hearing, the trial court had stated that the motion was dispositive. Fields subsequently entered a negotiated plea and reserved the right to appeal the denial of the motion to suppress. In accordance with the plea agreement, the trial court sentenced Fields to forty-eight months in prison with a three-year minimum mandatory on the trafficking charge and to time served on the two misdemeanors. Fields contends on appeal that the deputy did not have reasonable suspicion to stop him for an attempted unlawful entry into a home or probable cause to arrest him for loitering or prowling. On appellate review of the denial of a motion to suppress, this court reviews the trial court's factual findings for competent, substantial evidence and conducts a de novo review of the trial court's application of the law to the facts. J.C. v. State, 15 So. 3d 870, 872 (Fla. 2d DCA 2009). 1. Reasonable Suspicion for Investigatory Detention It is undisputed that when the deputy told Fields to stop, cornered him at the patrol vehicle, and then grabbed his arm, a Fourth Amendment seizure occurred. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16 (1968). To support an investigatory detention, an officer "must have a well-founded, articulable suspicion that -5- a person has committed, is committing, or is about to commit a crime." Thomasset v. State, 761 So. 2d 383, 385 (Fla. 2d DCA 2000) (citing § 901.151, Fla. Stat. (1997)). To determine whether an officer had reasonable suspicion to make an investigatory stop, we consider the totality of the circumstances. Peterson v. State, 264 So. 3d 1183, 1189 (Fla. 2d DCA 2019). A "mere suspicion" of criminal activity is insufficient. Id. "Thus, where a person's conduct is consistent with both criminal and noncriminal activity, such facts do not give rise to a reasonable suspicion of a crime." Id. The caller in this case was not an anonymous tipster but a citizen informant. She obviously gave sufficient identifying information because she testified at the suppression hearing. "A citizen informant is one who 'by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty.' " State v. Woldridge, 958 So. 2d 455, 459 (Fla. 2d DCA 2007) (quoting State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997)). A tip from a citizen informant usually "falls at a higher end of the reliability scale." Peterson, 264 So. 3d at 1189 (quoting Baptiste v. State, 995 So. 2d 285, 291 (Fla. 2008)). But the reasonable suspicion needed to support an investigatory stop depends "upon both the content of information possessed by police and its degree of reliability." Id. (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). Even when a tip is from a citizen informant, the tip must be reliable "in its assertion of illegality." Cooks v. State, 28 So. 3d 147, 149 (Fla. 1st DCA 2010) (quoting Florida v. J.L., 529 U.S. 266, 272 (2000)). In Cooks, the appellate court determined that a hotel clerk's report that a black man tried to open the back door of the hotel and then left in a maroon Lincoln with two other black men in the car was insufficient to raise a -6- reasonable suspicion of a trespass or attempted burglary. Id. at 150. The opinion does not state whether the back door to the hotel was one used by the public. In addition, although the hotel clerk was afraid that the men may have been checking to see if she was alone in order to rob her, that "hunch" was insufficient to provide reasonable suspicion to justify a stop. Id. In Peterson, a jail visitation clerk's tip did not provide reasonable suspicion for an investigatory stop. 264 So. 3d at 1190. Although the clerk was a citizen informant, she related to law enforcement vague portions of a phone conversation she listened to between Peterson and her boyfriend who was an inmate. Id. at 1189-90. Thus, the problem was not the informant's reliability but that the information that she relayed about the conversation was vague as to criminal activity. Id. On the phone call, the clerk heard the boyfriend ask Peterson if another woman did what the boyfriend asked her to do. Id. at 1185. He told Peterson that it had to be done at night. The boyfriend wanted Peterson "to bring it and put it at the spot where [he] told [Peterson]." Id. In a visitation call, the boyfriend asked Peterson if she brought "gold" with her, and she responded affirmatively. Id. She also responded in the affirmative when asked if she knew the spot that he told her. Id. at 1186. The boyfriend again told her that it had to be done at night, and Peterson said, "[O]kay, well, I'll have to drop back over here." Id. When Peterson walked past, the clerk saw "that Peterson's eyes were dilated and that 'she was visibly high.' " Id. The clerk construed the statements between Peterson and her boyfriend as "arranging a drug drop at the jail." Id. at 1190. This court concluded that "such -7- generalized statements did not evince that a crime had been committed, was being committed, or was about to occur." Id. The State argues that the fact the caller saw Fields turn the doorknob in addition to standing at the doorstep of the home provided a reasonable suspicion of criminal activity, specifically "attempted trespass or burglary," relying on Kalnas v. State, 862 So. 2d 860, 862 (Fla. 4th DCA 2003). In Kalnas, the court determined that the anonymous tip was not sufficiently corroborated to support an investigatory detention but suggested that the same tip by a citizen informant "would itself raise the level of reliability of the tip." Id. at 863 n.1. The State also relies on State v. K.N., 66 So. 3d 380 (Fla. 5th DCA 2011). Both those cases are distinguishable in an important respect. In each case, the defendant was seen trying to open multiple doors in the neighborhood. See K.N., 66 So. 3d at 382 (describing a 911 call in which a known resident saw "a tall, white male with long hair and a thin build running from house to house, peering into vehicles and checking door handles" in a neighborhood with "an increased number of burglaries involving unlocked vehicles"); Kalnas, 862 So. 2d at 862 (stating that an anonymous tipster reported that "the defendant was 'trying' various doors in the neighborhood"); see also I.G. v. State, 245 So. 3d 897, 900 (Fla. 3d DCA 2018) (determining that there was reasonable suspicion of criminal activity when after 11:00 p.m. the detective saw a juvenile looking into vehicles and pulling on their door handles in the parking lot of a gated community where there had been "a high rate of car burglaries"). Here, defense counsel argued that, at best, the deputy had a mere suspicion when someone attempted to turn a doorknob and walked away. Further, the -8- trial court found that the man was "jiggling" the door handle, which has a slightly different connotation than turning the door handle. The 911 caller only stated that she saw him "trying to turn the doorknob" or "turning the knob." At the suppression hearing, the caller said that she did not recall saying that the man was jiggling the handle. Thus, to the extent the trial court relied on "jiggling" the handle, competent, substantial evidence does not support that finding. There was also no mention that Fields was looking in windows or "skulking" about. And when the caller returned with her phone, Fields did not run away when she encountered him on the street or act in a stealthy manner. He also did not run away from the deputy. Although the deputy referred to the neighborhood as a high crime area, he did not specify that any particular crime, such as burglary, had been a problem in the area. With respect to the fact that Fields was out in the neighborhood at somewhere between 9:45 and 10:00 p.m. when the caller observed him, she too was out in the neighborhood at that time of night walking her dog. As for Fields' unwillingness to answer questions or stop for the deputy, if the deputy did not have a reasonable suspicion of criminal activity or probable cause to arrest, "the individual has a right to ignore the police and go about his business." T.P. v. State, 224 So. 3d 792, 794 (Fla. 2d DCA 2017) (quoting J.W. v. State, 95 So. 3d 372, 378 (Fla. 3d DCA 2012)). The State contends on appeal that the totality of circumstances warranted a reasonable suspicion that Fields was trying to commit a burglary. The State contends that standing in a doorway and turning the front doorknob is consistent with the action of attempted entry, apparently presuming an illegal entry. But those actions are also -9- consistent with an innocent explanation of a legal attempted entry. See Peterson, 264 So. 3d at 1189 ("[W]here a person's conduct is consistent with both criminal and noncriminal activity, such facts do not give rise to a reasonable suspicion of a crime."). For instance, if an invited guest knocked on the door, and the residents did not hear the knock, the guest may have checked the door with the intent to open it and call out to get the residents' attention. In addition, the defense suggests, based on Cherry's testimony, that Fields was an out-of-town visitor who got lost on a trip to the store and was trying to find his cousin's home. The caller's information was a mere hunch. Fields was not trying "various doors" in the neighborhood. The information the caller gave suggests that she did not witness a crime and simply wanted a police cruiser to come by because she saw a young black male turning the front doorknob at her neighbors' house. See Phillips v. State, 781 So. 2d 477, 479 (Fla. 3d DCA 2001) ("Racial incongruity, a person being allegedly 'out of place' in a particular area, cannot constitute a finding of reasonable suspicion of criminal behavior."). Because the conduct reported was consistent with both criminal and noncriminal activity, the deputy did not have a reasonable suspicion of criminal activity. Without an articulable suspicion of criminal activity, the investigatory detention and subsequent arrest and search of Fields was illegal, and thus the fruits of the search should have been suppressed. See Weaver v. State, 233 So. 3d 501, 504 (Fla. 2d DCA 2017); B.G. v. State, 213 So. 3d 1016, 1019 (Fla. 2d DCA 2017); Williams v. State, 769 So. 2d 404, 406-07 (Fla. 2d DCA 2000). Therefore, we reverse Fields' convictions and sentences and remand for discharge. - 10 - 2. Loitering or Prowling Because we conclude that the deputy did not have reasonable suspicion to detain Fields in the first place, we need not reach the loitering or prowling issue. However, we point out that the officer was not justified in arresting Fields for loitering or prowling, a misdemeanor. See § 856.021, Fla. Stat. (2017). Loitering or prowling under section 856.021(1) has "two elements: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law- abiding individuals; and (2) such loitering or prowling was under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." McClamma v. State, 138 So. 3d 578, 583 (Fla. 2d DCA 2014). "Both elements must occur in the officer's presence and be complete before the officer takes action." Ellis v. State, 157 So. 3d 467, 469 (Fla. 2d DCA 2015). Thus, we cannot consider the contents of the 911 call in our determination. See Wright v. State, 126 So. 3d 420, 424 (Fla. 4th DCA 2013). A "vaguely suspicious presence" is insufficient to establish the first element of the crime. J.S.B. v. State, 729 So. 2d 456, 457 (Fla. 2d DCA 1999). This court has stated that "[b]efore the stop is ordered, that officer must observe conduct that creates the requisite alarm in the officer's mind." McClamma, 138 So. 3d at 584. And "law enforcement officers invariably create problems when they try to justify a stop based on loitering or prowling because they are a little short of the reasonable suspicion needed for a Terry stop for some other offense." Id. at 585. The deputy's personal observations did not establish that Fields "loiter[ed] or prowl[ed] in a place, at a time or in a manner not usual for law-abiding individuals." § - 11 - 856.021(1). Fields was walking down the street at about 10:00 p.m. when the deputy encountered him. Nothing indicates that to be unusual for law-abiding citizens. There is no evidence that the deputy reasonably believed Fields "was about to commit immediate harm to person or property while" walking down the street. McClamma, 138 So. 3d at 587. Thus, there was no justification for a loitering or prowling arrest. In summary, because there was no reasonable suspicion for an investigatory detention and no probable cause for an arrest, we reverse the convictions and sentences and remand for discharge. Reversed and remanded for discharge. BADALAMENTI, J., Concurs. ATKINSON, J., Dissents without opinion. - 12 -