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 STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D19-712 ) J.C., ) ) Appellee. ) ) Opinion filed March 4, 2020. Appeal from the Circuit Court for Pinellas County; Myriam Irizarry, Acting Circuit Judge. 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." -2- 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 -3- 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 1We note that reasonable suspicion is the level of justification required for an investigatory stop, not an arrest. See generally Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). An arrest requires probable cause, which is "a higher level of justification than that required for an investigatory stop." State v. Hendrex, 865 So. 2d 531, 534 (Fla. 2d DCA 2003). -4- 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 (1968) (footnote omitted) (quoting People v. Rivera, 201 N.E.2d 32, 36 (N.Y. 1964)). -5- "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 (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)). 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 -6- 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 else on you I need to know about?" is permissible and does not amount to an arrest. Cf. Young v. State, 270 So. 3d 471, 474 (Fla. 1st DCA 2019) ("[A] traffic stop or investigatory stop is not transformed into a custodial interrogation or formal arrest when police ask the person if he or she has any weapons or drugs—such inquiry is permissible."); State v. Stone, 889 So. 2d 999, 1000 (Fla. 5th DCA 2004) ("It cannot be said that the stop of Stone was prolonged in any meaningful sense merely because the police officer asked a single question about whether Stone was in possession of weapons or drugs."). Consequently, up to the time that J.C. displayed the bags of marijuana on his person, the encounter was, at most, an investigatory stop. 2. Justification for the Encounter Deputy Blake's investigatory stop was valid if he had a well-founded "reasonable suspicion supported by articulable facts that criminal activity may [have been] afoot." See Peterson v. State, 264 So. 3d 1183, 1189 (Fla. 2d DCA 2019) (quoting State v. Teamer, 151 So. 3d 421, 425 (Fla. 2014)); see also § 901.151(2) Fla. Stat. (2018) (providing that an officer may temporarily detain a person to determine the person's identity and ascertain the circumstances that "led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense"). The stop remained valid "as long as a reasonable and articulable suspicion continue[d] to exist." See Ikner v. State, 756 So. 2d 1116, 1119 (Fla. 1st DCA 2000) ("The suspect -7- must be released if the investigation dispels the concern that initially justified the detention and if the officers have not acquired any other basis to continue the detention."). Reasonable suspicion is "assessed based on 'the totality of the circumstances—the whole picture,' and 'from the standpoint of an objectively reasonable police officer.' " Teamer, 151 So. 3d at 426 (first quoting United States v. Cortez, 449 U.S. 411, 417 (1981); and then quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). "[T]he officer's subjective intentions are not involved in the determination of reasonableness." Peterson, 264 So. 3d at 1189 (quoting Teamer, 151 So. 3d at 426). "A mere suspicion of a crime is not enough." Id. (citing Teamer, 151 So. 3d at 426). Yet, an innocent explanation does not necessarily dispel reasonable suspicion that arises from what are obviously incriminating circumstances. See State v. Lopez, 29 So. 3d 399, 401 (Fla. 3d DCA 2010) (explaining that reasonable suspicion determinations "do not 'turn on whether an innocent explanation can possibly be conjured up from what are obviously incriminating circumstances' " (quoting State v. Maya, 529 So. 2d 1282, 1287 n.7 (Fla. 3d DCA 1988))). In this case, both parties agreed that the deputies justifiably approached J.C. on the porch to conduct the curfew check. Upon doing so, Deputy Blake observed at least two suspect circumstances afoot: underage drinking and possession of a marijuana cigarette. Indeed, Deputy Blake observed alcohol and a marijuana cigarette within inches of J.C. These facts support a reasonable suspicion of criminal activity. Cf. Thompson v. State, 551 So. 2d 1248, 1249-50 (Fla. 1st DCA 1989) (finding that the officer "had a reasonable founded suspicion and could temporarily detain appellant -8- when he saw rock cocaine in plain view" within a foot of where appellant was standing, in a pool hall surrounded by others).2 J.C.'s mother's claim that the contraband belonged to an unseen cousin fell far short of dispelling suspicion. Cf. State v. Bullock, 460 So. 2d 517, 518 (Fla. 3d DCA 1984) (holding that there was reasonable suspicion to justify the investigatory stop where "the defendant claimed that someone else present nearby owned the luggage, although no one else was in the lobby area of the station"). Her claim lacked corroboration and the criminality of the activity remained apparent. Because nothing dispelled his well-founded suspicion justifying the investigatory stop, Deputy Blake could continue his investigation and ask J.C. if he had anything on his person. See Ikner, 756 So. 2d at 1119; see also State v. Martissa, 18 So. 3d 49, 52 (Fla. 2d DCA 2009) ("During a traffic stop an officer may ask if a person is in possession of a weapon or drugs."). B. The "Search" "When a suspect empties his pockets in response to an officer's directive that he do so, the legal effect is the same as if the officer had himself searched the suspect's pockets." Sanders v. State, 732 So. 2d 20, 21 (Fla. 1st DCA 1999); see also R.A.S. v. State, 141 So. 3d 687, 689 (Fla. 2d DCA 2014) ("Ordering someone to remove 2Generally, the mere proximity to contraband found in a jointly occupied area does not amount to probable cause to arrest a person for possession. See Thompson, 551 So. 2d at 1250 (holding that the mere proximity to contraband found in a jointly occupied public place "did not rise to the level of probable cause to arrest appellant for possession"); see also Hatcher v. State, 15 So. 3d 929, 931 (Fla. 1st DCA 2009) (same). But this case involves an investigatory stop and reasonable suspicion, which "is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." See Baptiste v. State, 995 So. 2d 285, 291 (Fla. 2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). -9- items from his pockets has the same legal effect as an officer actually reaching into the pockets to search."). In contrast, when an officer simply asks a question and the suspect goes "beyond the officer's initial inquiry" and spontaneously empties his pockets, no search occurs. State v. Hicks, 415 So. 2d 878, 878 (Fla. 2d DCA 1982) (relying on Neely v. State, 402 So. 2d 477, 479 (Fla. 2d DCA 1981)). Deputy Blake simply asked J.C. a question, "You got anything else on you I need to know about?" He did not order J.C. to empty his pockets. After J.C. verbally responded, he voluntarily pulled the bags of marijuana from his pocket. See Hicks, 415 So. 2d at 878 (stating that the defendant went beyond the deputy's initial inquiry where the deputy asked, "What is that inside your shorts?" and the defendant "immediately pulled from his shorts two clear plastic bags of marijuana"); Neely, 402 So. 2d at 479 ("[A]ppellant went beyond the officers' inquiry about what caused the bulge and spontaneously pulled the methaqualone tablets out of his pocket."). The trial court heard no evidence that the deputies coerced J.C.'s action. Cf., e.g., Neely, 402 So. 2d at 479 ("Perhaps if he had not been drinking, he would not have [emptied his pockets], but the fact remains that he did it without coercion from the officers."); United States v. Robinson, 760 F. App'x 762, 764 (11th Cir. 2019) ("Robinson's probation term that required him to truthfully answer questions from his probation officer does not constitute coercion. This probation term is generally allowed, and there is no evidence in the record that any officer threatened to revoke Robinson's probation if he did not answer questions about the safe."). Under these circumstances, there was no search, and probable cause was not required. See Hicks, 415 So. 2d at 879; Neely, 402 So. 2d at 479; see also Lutz v. State, 354 So. 2d 141, 142 (Fla. 1st DCA 1978) ("Therefore - 10 - probable cause to frisk and consent to search are not viable issues in this case since there was no illegal search, indeed no search at all."). When J.C. brought the clear bags of marijuana into plain view, Deputy Blake properly seized them. Suppression was not warranted. See Hicks, 415 So. 2d at 879 (holding that, when no search occurred, "the marijuana was subject to proper seizure and should not have been suppressed below"); Neely, 402 So. 2d at 479 ("On these facts, we cannot say that a search took place. Therefore, the methaqualone was properly seized as contraband when appellant brought it into plain view." (citing Smith v. State, 333 So. 2d 91 (Fla. 1st DCA 1976))). Deputy Blake had probable cause to arrest J.C. for possession of that marijuana, regardless of whether he had probable cause based on the marijuana cigarette. See F.E.H. v. State, 28 So. 3d 213, 215 n.1 (Fla. 4th DCA 2010) ("Here, once appellant turned over the marijuana, there was probable cause to arrest."). III. Conclusion The trial court erred in concluding J.C. was arrested when Deputy Blake ordered him to "stand up." See J.C., 15 So. 3d at 872. The trial court also erred in determining that J.C.'s display of the bags in response to Deputy Blake's inquiry constituted a search. See Hicks, 415 So. 2d at 879; Neely, 402 So. 2d at 479. These errors accumulated into one final error: the suppression of "[a]ny evidence discovered as a result of the detention and subsequent search." We reverse the order granting J.C.'s motion to suppress evidence and remand to the trial court for further proceedings consistent with this opinion. - 11 - Reversed and remanded. CASANUEVA and VILLANTI, JJ., Concur. - 12 -