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 ERIK CONAN VONLYDICK, ) ) Appellant, ) ) v. ) Case No. 2D18-4227 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed February 26, 2021. Appeal from the Circuit Court for Charlotte County; George C. Richards, Judge. Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Reserving his right to appeal the denial of his dispositive motion to suppress statements and evidence, Erik Conan Vonlydick pled no contest to charges of giving a false name by a person detained/under arrest, resisting an officer without violence, and multiple drug-related offenses. On this direct appeal of the judgment and sentence, Vonlydick argues that reasonable suspicion had not supported the detective's investigatory stop. We agree that the investigatory stop was unlawful and that the court erred in declining to suppress Vonlydick's statements to the detective, including his statement that there were drugs in the SUV, but we do not agree that the court erred in declining to suppress the drugs that were actually found in the SUV during the subsequent inventory. We therefore reverse and remand for the court to grant in part and deny in part the suppression motion, for discharge on the charges of giving a false name and resisting an officer, and for vacatur of Vonlydick's no-contest pleas and for further proceedings on the drug charges. Between 12:30 a.m. and 1:00 a.m. on December 28, 2017, a Charlotte County Sheriff's detective was patrolling a strip mall that housed businesses and a Salvation Army donation center. The detective had never observed any no-trespassing signs in the area, and it was common for homeless individuals to congregate behind the strip mall and go through the dumpsters, where the Salvation Army put discarded items. As he drove behind the closed businesses, the detective saw a small SUV parked with its headlights on and driver's side door open. He saw a woman standing near the back doors of the Salvation Army; she was looking at a couch that was sitting in the area where items to be discarded are typically stacked. Seeing the detective, she quickly returned to the SUV, got into the driver's seat, and tried to back up and leave. The detective pulled behind the SUV and activated his lights. At the suppression hearing, he testified that he did not initiate the stop based on any traffic violation but based solely on his suspicion that a crime was occurring given "the time of night, the business being closed, [and the driver's] reaction" to seeing a law enforcement officer. -2- Approaching the SUV on foot, the detective observed a man, later identified as Vonlydick, sitting in the passenger seat. The detective asked the driver to step out of the SUV. She complied and explained that she had been looking at a couch that she was interested in having. Although claiming that she had already spoken to someone about the couch and had gotten permission to look at it, she could not provide the detective with more than the first name of the person with whom she claimed to have spoken. By this point, another officer had arrived, and the detective asked Vonlydick to step out of the SUV. Vonlydick complied, and the detective maneuvered himself so that Vonlydick "was not free to leave." The detective then asked Vonlydick to identify himself. Vonlydick answered that his name was "John Holland," and he provided a date of birth. Vonlydick corroborated the driver's explanation that they were there for the couch. The detective ran the name and birthdate that Vonlydick had supplied through various databases, but no record came up. The detective told Vonlydick that he could find no matching records, but Vonlydick insisted that that was his name and birthdate. At this point, the detective believed that a crime had occurred or was occurring, and he began to read Vonlydick the Miranda1 warnings. As he was doing so, however, Vonlydick fled on foot. The detective caught up with Vonlydick and deployed his taser after Vonlydick ignored his commands to stop. After his arrest, Vonlydick was very cooperative. He told the detective his real name and date of birth, that he had outstanding warrants, and that there was a 1Miranda v. Arizona, 384 U.S. 436 (1966). -3- container of drugs under the front passenger seat of the SUV. The detective told Vonlydick that the driver had also been arrested and that the SUV was going to be impounded and inventoried. At the suppression hearing, the detective testified that the SUV would have been impounded and inventoried regardless of the arrests because neither the driver nor Vonlydick had a valid driver's license. Subsequently, the detective confirmed that Vonlydick had outstanding warrants, and officers recovered the container of drugs from the SUV during their inventory of its contents. In denying Vonlydick's suppression motion, the trial court determined that the detective's "observations . . . of [the driver] were sufficient to support detention and further investigation of loitering and prowling. The subsequent search of the vehicle and statements of [Vonlydick] were lawful [sic] obtained pursuant to an inventory search of the vehicle." We review the court's factual findings for competent substantial evidence and review its application of the law to those facts de novo. P.R. v. State, 97 So. 3d 980, 982 (Fla. 4th DCA 2012). As an initial matter, we conclude that Vonlydick had been seized in conjunction with an investigatory Terry2 stop at the moment the detective blocked the SUV from leaving. See Popple v. State, 626 So. 2d 185, 187–88 (Fla. 1993) ("[A] significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person's freedom to leave . . . . This Court has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart." (first citing State v. 2Terry v. Ohio, 392 U.S. 1 (1968). -4- Simons, 549 So. 2d 785 (Fla. 2d DCA 1989); and then citing Jacobson v. State, 476 So. 2d 1282 (Fla. 1985))); cf. Brendlin v. California, 551 U.S. 249, 255–57 (2007) (holding that, like the driver, a passenger in a vehicle is also seized during a traffic stop and thus may challenge the constitutionality of the stop). Where Vonlydick and the State disagree, however, is whether the detective had a "well-founded, articulable suspicion of criminal activity" to conduct the investigatory stop. See Popple, 626 So. 2d at 186 ("In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop." (citing Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984))). We agree with Vonlydick that at the time of the stop, the detective had only a "mere suspicion" of criminal activity based on the time of night, the location, the fact that the businesses were closed, and the driver's attempt to leave upon seeing a law enforcement officer. The detective testified that he suspected the two of loitering and prowling, which requires that the suspects "loiter or prowl in a manner not usual for a law-abiding citizen," and in such a way as to "suggest that a breach of the peace is imminent." Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011) (quoting Ferguson v. State, 39 So. 3d 551, 553 (Fla. 2d DCA 2010)). It further requires that the suspects' behavior be "alarming in nature, creating an imminent threat to public safety." Id. (quoting Ferguson, 39 So. 3d at 553). Here, setting aside the unusual hour, the driver was simply standing behind a closed shopping center in an area known for "dumpster diving," looking at a piece of apparently discarded furniture in the light of the headlights of her SUV while Vonlydick sat inside the SUV. Although, upon spotting the detective, the driver hurried -5- back to the SUV and attempted to leave, we conclude in light of our precedent that these facts were insufficient to give rise to a reasonable, articulable suspicion of loitering and prowling, or of any other criminal activity, so as to support the investigatory stop. See Riley v. State, 737 So. 2d 1111, 1112 (Fla. 2d DCA 1999) (concluding that the officer had lacked reasonable suspicion to conduct an investigatory stop despite observing the defendant, at 3:00 a.m., exit his car, walk toward a dumpster behind a closed shopping center, and then quickly return to his car and drive away upon seeing the officer because "the only suspicion articulated about his behavior was noncriminal in nature—that he might be one of those persons who comb the dumpsters for valuables at night"); see also Peterson v. State, 264 So. 3d 1183, 1189 (Fla. 2d DCA 2019) ("[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." (citing Carter, 454 So. 2d at 742)); Baker v. State, 754 So. 2d 154, 155 (Fla. 5th DCA 2000) ("There is no indication in this record as to what Baker was doing, other than merely sitting in his van at 3:00 in the morning near a closed business. . . . If Baker's actions are sufficient to warrant a Terry stop, then anyone who parks in a business area late at night would be subject to a Terry stop. Both the loitering statute and common sense require more than this."); cf. Popple, 626 So. 2d at 186 (holding that the deputy had lacked a well-founded suspicion to conduct an investigatory stop of Popple, who had been sitting in a legally parked car on a desolate street near a high-crime area, even though Popple had "act[ed] in a nervous manner, reaching under the seat and 'flipping' about in the car," upon noticing the deputy's approach). Consequently, the statements that Vonlydick made during the course of that unlawful stop and ensuing unlawful arrest should have -6- been suppressed, and his convictions for giving a false name and for resisting an officer must be reversed. See Lobb v. State, 290 So. 3d 591, 594 (Fla. 2d DCA 2020) ("Notably, '[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.' " (alteration in original) (quoting C.W. v. State, 76 So. 3d 1093, 1096 (Fla. 3d DCA 2011))); D.T. v. State, 87 So. 3d 1235, 1238 (Fla. 4th DCA 2012) ("Lawful detention is . . . a condition precedent to the crime of giving a false name to a police officer."). Vonlydick argues further that because the investigatory stop and ensuing arrest were unlawful, the trial court erred in declining to suppress the drugs found in the SUV because officers had discovered them during an unlawful search incident to that arrest. But the court did not determine that officers had discovered the drugs during a lawful search incident to arrest; rather, the court expressly found that officers had discovered the drugs during an inventory of the SUV. Moreover, the detective testified that the drugs had been discovered during an inventory of the SUV, and he also testified that the SUV would have been impounded and inventoried "no matter what" because neither the driver nor Vonlydick had a valid driver's license. Vonlydick wholly fails to challenge the court's finding, the detective's testimony, or the independent validity of the inventory, and we may not reverse based on a challenge that an appellant has not raised.3 See Bass v. State, 304 So. 3d 786, 792 (Fla. 1st DCA 2018) ("We 3Instead, Vonlydick argues that the detective's intervening confirmation of Vonlydick's outstanding arrest warrant could not validate an otherwise unlawful search incident to arrest. -7- cannot reverse a judgment based on an argument the appellant never made." (citing Williams v. State, 845 So. 2d 987, 989 (Fla. 1st DCA 2003))). Accordingly, Vonlydick has failed to establish that the trial court erred in declining to suppress the drugs found in the SUV. Because reasonable suspicion did not support the detective's initial investigatory stop, however, the trial court erred in denying Vonlydick's motion to suppress statements obtained pursuant to that initial stop and ensuing unlawful arrest, including Vonlydick's statement concerning the drugs. We therefore reverse and remand for the court to grant in part and deny in part Vonlydick's suppression motion, for discharge on the charges of giving a false name and resisting an officer, and for vacatur of Vonlydick's no-contest pleas and for further proceedings on the drug charges. Reversed; remanded with directions. KHOUZAM, C.J., and NORTHCUTT, J., Concur. -8-