Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-1108 _____________________________ STATE OF FLORIDA, Appellant, v. K. F., Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Tiffany M. Baker-Carper, Judge. February 16, 2022 PER CURIAM. In this appeal from an order granting Appellee’s motion to suppress, the State claims that the trial court committed reversible error in concluding that the interaction between Appellee and Officer Hoover was not a consensual encounter, but an unlawful investigatory stop unsupported by founded suspicion. For the reasons that follow, we reverse and remand for further proceedings. Initially, the State asserts that the suppression order should be reversed because the trial court improperly applied a “race- conscious reasonable person standard” in violation of the Equal Protection Clause of the United States Constitution, citing United States v. Knights, 989 F.3d 1281, 1289 (11th Cir. 2021). To the extent the State argues that the trial court’s consideration of a constitutionally impermissible factor alone requires reversal of the suppression order, this is not preserved for appeal because the State voiced only a general objection to the trial court’s ruling. See Wheeler v. State, 4 So. 3d 599, 606 (Fla. 2009) (“It is well- established that for a claim ‘to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’”) (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982)). While it did respond to defense counsel’s argument at the suppression hearing by asserting that “societal pressures is not a factor to consider,” the State did not assert that application of a race-conscious reasonable person standard violated equal protection. See San Martin v. State, 705 So. 2d 1337, 1346 (Fla. 1997) (holding that defendant’s equal protection claim was never raised below and thus was not cognizable on appeal). Nevertheless, because the reasonable person standard is an objective one, it should be applied in a race-neutral manner. Therefore, we conclude that race was not a relevant factor in determining whether a reasonable person in Appellee’s situation would have felt free to leave or terminate the encounter. See Knights, 989 F.3d at 1288–89 (explaining that the court may not consider race in determining whether a seizure has occurred under the objective reasonable person standard). In addition, the State asserts that the suppression order should be reversed because the trial court made two factual findings not supported by competent substantial evidence: (1) Officer Hoover hindered Appellee’s ability to leave by walking to the front of Appellee’s vehicle; and (2) Officer Hoover told Appellee to roll down his window twice. The DVD video recording from Officer Hoover’s body camera clearly depicts what transpired during the encounter and contradicts both findings. Twenty-five seconds into the recording, Officer Hoover exited from his patrol car—which did not have its lights activated and was parked away from Appellee’s vehicle. Next, Hoover walked over to the driver’s door of Appellee’s vehicle with his flashlight and asked, “How you doing? Hey, can you roll this [window] down?” Hoover then briefly walked over to the front driver’s side corner of Appellee’s vehicle and gave the make of the car over the radio. After that, Hoover returned to the driver’s door, which Appellee opened without any prompt from Hoover. 2 In light of the above, there is no competent substantial evidence to support the trial court’s findings that Hoover hindered Appellee’s ability to leave or that Hoover twice ordered Appellee to roll down the window. Rather, Hoover simply asked Appellee—one time—to roll down his window. This was phrased as a request and not as a command. Finally, the State claims that the suppression order should be reversed because there were no additional circumstances to support the trial court’s conclusion that a reasonable person in Appellee’s situation would not have felt free to leave or terminate the encounter. “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). None of these circumstances were present during the encounter recorded by Officer Hoover’s body camera. In particular, Hoover did not touch Appellee until after Appellee opened the car door and Hoover saw a firearm on the floorboard underneath Appellee’s foot. Although the trial court emphasized Hoover’s use of a flashlight to look into the interior of Appellee’s vehicle, “a uniformed officer’s use of a spotlight or flashlight, without more, does not transform a consensual encounter into an investigatory stop.” State v. Goodwin, 36 So. 3d 925, 927 (Fla. 4th DCA 2010); accord R.F. v. State, 307 So. 3d 20, 24 (Fla. 4th DCA 2020) (holding that a deputy’s shining of his spotlight and flashlight into the vehicle did not transform the consensual encounter into an investigatory stop); State v. Hughes, 562 So. 2d 795, 797–98 (Fla. 1st DCA 1990) (holding that the action of officers in approaching defendant’s parked vehicle and shining a flashlight inside was not the functional equivalent of a stop). The trial court’s additional observations that Hoover was not investigating anything in particular and focused solely on Appellee—despite having no reason to speak to Appellee—were not relevant because Hoover did not need any reason to approach Appellee for a consensual encounter. To the extent the trial court rejected Hoover’s testimony that he would have allowed Appellee to leave if Appellee 3 had tried to do so, this could not serve as a basis to find an investigatory stop or seizure where the totality of the circumstances surrounding the encounter did not support the conclusion that a reasonable person would not have felt free to leave or terminate the encounter. Accordingly, we reverse the suppression order and remand for further proceedings. REVERSED and REMANDED. OSTERHAUS, KELSEY, and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellant. Luke Newman of Luke Newman, P.A., Tallahassee, for Appellee. 4