Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT K.W., Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-3927 June 23, 2021 Appeal from the Circuit Court for Pinellas County; James Pierce, Judge. Howard L. Dimmig, II, Public Defender, and Blair Allen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegel, Assistant Attorney General, Tampa, for Appellee. SLEET, Judge. K.W. challenges the disposition order in which the trial court withheld adjudication after finding him guilty of the delinquent act of possession of marijuana. K.W. entered a no contest plea and reserved the right to appeal the denial of his dispositive motion to suppress. Because the State failed to establish the necessary reasonable suspicion to detain K.W. and the necessary probable cause to arrest him, the trial court erred in denying K.W.'s motion to suppress, and we reverse. The State's delinquency petition alleged that K.W. possessed marijuana in violation of section 893.13(6)(b), Florida Statutes (2019). K.W. filed a motion seeking to suppress the contents of a cigar wrapper containing a green leafy substance that was found on his person and any admissions he made. At the hearing on the motion, Bonnie Anderson testified that on April 18, 2019, at around 1 a.m., an alarm went off inside her home. Because the alarm was attached to a front window, it could only go off on the inside if the screen was opened. She viewed video surveillance of her house and saw three juveniles on bicycles, but she did not recognize anyone in the video, nor did she articulate anything more than that they were sitting on their bicycles. The video did not capture anyone touching the screen that made the alarm go off. She then called the police, and when the sheriff's deputy arrived, she showed him the video. Although she did not 2 recognize anyone, she nonetheless provided the deputy with the address of a juvenile she suspected could be involved. She did not provide the name of the juvenile she suspected, nor did she state that any of the juveniles on the video resembled the juvenile whose address she provided. She did not even provide a detailed description of the individuals she saw. Rather, the information she relayed to law enforcement was that they were "young adults on bikes." The deputy testified that in the video, he observed three juveniles on bicycles at the end of Anderson's driveway. Based on his observation of the individuals in the video, he relayed a general physical description and general clothing description to other responding units. He could not gauge the height of the individuals from the video, nor could he make out any facial features. He recalled that prior to arriving at Anderson's residence, he observed a bicycle on the side of the road. He later learned it was in front of the house with the same address as the one provided by Anderson. He relayed this information to the responding units as well. The deputy did not observe any individuals near the bicycle when he initially saw it. He also did not testify as to whether it was the same 3 bicycle he observed in the video. The deputy admitted that he has previously seen other kids in the neighborhood at nighttime and that they were sometimes on bicycles. He responded to the suspect address after other deputies had already arrived. He testified that he was confident that the three juveniles the deputies encountered there were the same three juveniles he had observed in Anderson's security video. A second deputy was dispatched to the address provided by the responding deputy. She did not articulate how she made contact with K.W.; rather, she simply stated that she had responded to the suspect address to investigate the burglary and made contact with K.W., who was with two other individuals. When she spoke to K.W., he did not initially identify himself as K.W. and instead provided a different name and date of birth. At some point during the interaction, the deputy looked him up on her computer and determined that his name was actually K.W. K.W. admitted that was his name and told her that he provided a false name because he was on probation. She then took him into custody. She did not arrest him for trespassing or attempted burglary but rather 4 for providing a false name. She then searched him and found marijuana on his person. At the conclusion of the hearing, the trial court denied the dispositive motion to suppress. K.W. subsequently entered a no contest plea, reserving the right to appeal the denial of his motion to suppress. The trial court withheld adjudication and placed K.W. on twelve months' juvenile probation. On appeal, K.W. argues that law enforcement lacked both the reasonable suspicion necessary to detain him and the probable cause required to arrest him. We agree. There are essentially three levels of police-citizen encounters. The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. The second level of police-citizen encounters involves an investigatory stop . . . . At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. . . . . . . [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. Popple v. State, 626 So. 2d 185, 186 (Fla. 1983) (citations omitted). 5 It is the State's burden to establish that police had the necessary reasonable suspicion to detain and the necessary probable cause to arrest an individual. See Robinson v. State, 976 So. 2d 1229, 1233 (Fla. 2d DCA 2008) ("[T]he State has the burden to prove that the officer had probable cause, and the proof must be more than the 'naked subjective statement of a police officer who has a "feeling" based on "experience" that the accosted citizen is committing a crime.' " (quoting Coney v. State, 820 So. 2d 1012, 1014 (Fla. 2d DCA 2002))); cf. Florida v. Royer, 460 U.S. 491, 500 (1983) ("It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure."). Here, the State did not meet its burden with regard to either. As to reasonable suspicion, it is not clear from the arresting deputy's testimony when or if her "contact" with K.W. transformed from a consensual encounter into an investigatory stop during which K.W. was not free to walk away, but in any event, at no time during the encounter did the deputy have the required reasonable suspicion to detain him. 6 "To support an investigatory detention, an officer 'must have a well-founded, articulable suspicion that a person has committed, is committing, or is about to commit a crime.' " Fields v. State, 292 So. 3d 889, 893 (Fla. 2d DCA 2020) (quoting Thomasset v. State, 761 So. 2d 383, 385 (Fla. 2d DCA 2000)). Here, there were two potential bases for the arresting deputy's suspicion that K.W. might have engaged in criminal activity: (1) Anderson's statement to the police after her alarm went off and (2) the responding deputy's personal observation of the video surveillance. However, neither provided the reasonable suspicion necessary to justify conducting an investigatory stop. With regard to Anderson, the information she provided police was that of a citizen informant. See Fields, 292 So. 3d at 893 ("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.' " (quoting State v. Woldridge, 958 So. 2d 455, 459 (Fla. 2d DCA 2007))). While information from a citizen is considered more reliable than an anonymous tip, it still "must be reliable 'in its 7 assertion of illegality.' " Id. (quoting Cooks v. State, 28 So. 3d 147, 149 (Fla. 1st DCA 2010)). An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. K.W. v. State, 906 So. 2d 383, 385 (Fla. 2d DCA 2005) (quoting Florida v. J.L., 529 U.S. 266, 272 (2000)). Here, at most, Anderson's statement served only to identify K.W. and place him at a particular location. The video surveillance she reviewed did not show anyone, K.W. or otherwise, touching the window screen that allegedly triggered the alarm. She told the responding deputy that there were three juveniles on bicycles. However, there is nothing even remotely illegal about juveniles on bicycles. We also note that even Anderson's "description" is incredibly bareboned. She did not provide a description of the juveniles' gender, race, height, clothing, hairstyles, etc. She merely stated that she observed three juveniles on bicycles. Thus, there was no assertion of illegality in Anderson's statement to law enforcement and no reliable information upon 8 which they could have reasonably suspected that K.W. was engaged in illegal activity. Likewise, the responding deputy's testimony did not establish a reasonable suspicion of criminal activity. He testified only that "[o]n the video I saw at the end of the homeowner's driveway into the roadway there were three what appeared to be juveniles on bicycles." This testimony does not even affirmatively place the individuals on Anderson's property to provide reasonable suspicion of a trespass. Nor did anything in the deputy's testimony connect those individuals to any attempted burglary of Anderson's home. He saw them in one spot and never saw them near the window to which the alarm was attached. Additionally, although the deputy testified that he was confident that K.W. and the two juveniles with him were the three bicycle riders seen on the security video, this does nothing more than create a reasonable suspicion that K.W. was on a bicycle at the end of Anderson's "driveway into the roadway." Such is consistent with entirely innocent behavior and is not criminal. See State v. Teamer, 151 So. 3d 421, 427 (Fla. 2014) (finding no reasonable suspicion where "the sole basis . . . for the investigatory stop is an observation of one completely noncriminal 9 factor, not several incidents of innocent activity combining under a totality of the circumstances to arouse a reasonable suspicion"); see also Popple, 626 So. 2d at 186 ("[M]ere suspicion is not enough to support a stop."). Thus, the responding deputy's own observations did not give him or his fellow officers the reasonable suspicion needed to conduct an investigatory stop. In addition, the trial court erred in denying K.W.'s motion to suppress because the State failed to meet its burden of establishing that the deputies had the necessary probable cause to arrest K.W. The arresting deputy testified at the suppression hearing that she arrested K.W. for providing a false name. However, such is not a crime unless the individual providing the false name has already been lawfully detained by law enforcement. See § 901.36(1), Fla. Stat. (2019) ("It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel."); Whyte v. State, 940 So. 2d 1174, 1176 (Fla. 2d DCA 2006) ("Absent a reasonable suspicion or probable cause to detain or arrest Mr. Whyte on some 10 other lawful ground, Mr. Whyte's failure to give his true name could not, alone, provide probable cause for the arrest . . . ."). Accordingly, the arrest was unlawful, and the marijuana found during the search incident to that arrest should have been suppressed. See Whyte, 940 So. 2d at 1176 ("As a result the arrest was not lawful, and the evidence procured during the subsequent search should have been suppressed."). We therefore reverse the trial court's disposition order. Reversed. NORTHCUTT and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 11