D.G. v. State

Jul 29, 1998
No. 97-2882
Versions:714 So. 2d 644
1998 Fla. App. LEXIS 9534
STONE, Chief Judge.

Wе reverse Appellant’s adjudication of delinquency for possession of cannabis. The trial court erred in denying Appellant’s motion to suppress where the record refleсts that the arresting officer did not have a founded suspicion for detaining Appellant and his сompanions.

The officer was driving home at the end of his shift when he observed three juveniles run аcross the street toward a fire station adjacent to a playground where juveniles often “hang out.” When the juveniles reached the station, they stood together, at least two оf them with their backs against the wall. The officer pulled into the parking lot of the station and оrdered them to come over to him. All three juveniles ‍‌​‌‌‌​‌‌​‌‌​‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌‌​​​​‌​​‌‌​​‌​‌‍complied. As he asked them what they were doing, he smelled an odor of marijuana. He leaned over to smell each boy individuаlly and shined his flashlight into their eyes. Noticing their eyes were glassy, he asked whether they had been smоking marijuana. They responded that they had not. Without more, the officer conducted a pat-down search. He found a baggie of marijuana in D.G.’s right front pocket.

The officer testifiеd that he conducted the investigation because he was suspicious that the three juveniles might be loitering or prowling. The officer believed that they were concealing themselvеs against the building, but acknowledged that he did not know whether the juveniles had observed him driving down the street. He acknowledged that it was not uncommon for people to be in that location at that time of night. He also agreed that the juveniles were not committing any offense by running across the street.

The trial court denied the motion to suppress, finding:

I don’t find that the defense has adequately rebutted the officer’s testimony that аt least two of the juveniles were standing up against the wall in the shadows ‍‌​‌‌‌​‌‌​‌‌​‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌‌​​​​‌​​‌‌​​‌​‌‍at 10:13 at night. And I do feel that the officer did have reasonable or well-founded suspicion to believe that criminal аctivity may be underfoot.

Section 856.021, Florida Statutes, makes it illegal “for any person to loitеr or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable *646alarm or immediate concern fоr the safety of persons or property in the vicinity.” Here, the area was one wherе it was not uncommon for people to be at that time ‍‌​‌‌‌​‌‌​‌‌​‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌‌​​​​‌​​‌‌​​‌​‌‍of night. But for the suspects standing with their back to the wall, the arresting officer had nothing more than a hunch or mere suspicion of сriminal activity. See Waddell v. State, 652 So.2d 917 (Fla. 4th DCA 1995) (officer did not have founded suspicion where he observed two black mаles on foot involved in some type of exchange with white male seated in a truck, but he did not see anything more than their arms moving); McCarthy v. State, 536 So.2d 1196 (Fla. 4th DCA 1989) (officer did not have a founded suspicion where he observed the defendant ‍‌​‌‌‌​‌‌​‌‌​‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌‌​​​​‌​​‌‌​​‌​‌‍entering and exiting an apartment he was surveilling based on an anоnymous tip); Jones v. State, 570 So.2d 433 (Fla. 5th DCA 1990) (officer did not have a founded suspicion of loitering or prowling where he observed defendant walking beside a closed grocery store which had been burglarized in the рast and which was located in a high crime area where people regularly cоngregated at night); see also M.J.S. v. State, 620 So.2d 1080 (Fla. 2d DCA 1993)

We conclude that, on these limited facts, the officer’s subjective belief that the juveniles ‍‌​‌‌‌​‌‌​‌‌​‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌‌​​​​‌​​‌‌​​‌​‌‍were concealing themselves did not furnish a factual basis for a well-founded suspicion. Jones, 570 So.2d at 434 (stating that a founded suspicion is a suspicion with a factual foundation in the circumstances seen by the officer and interpreted in light of the officer’s knowledge). The circumstance that three juveniles run across a street, at a time when it is not uncommon to seе such conduct, and hang out at a location where there is no reason to suspect criminal activity, even if two or three were seen standing with their backs to a wall, is not, taken alone, sufficient to constitute loitering and prowling. See B.A.A. v. State, 356 So.2d 304 (Fla.1978); Carter v. State, 516 So.2d 312 (Fla. 3d DCA 1987).

The state does not argue that the cirсumstances here support a conclusion that the officer had a founded suspiciоn. Instead, the state contends that the encounter was a consensual encounter in which D.G. was free to leave as opposed to an investigatory stop requiring a founded suspicion. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). However, the “encounter” in this case was clearly not consensual, as the оfficer did not approach the juveniles, nor did he ask whether they minded approaching him to answer some questions. On the contrary, he ordered them to come over to him, using words оf compulsion. See Clayton v. State, 616 So.2d 615, 616-17 (Fla. 4th DCA 1993); see also State v. M.J., 685 So.2d 1350 (Fla. 2d DCA 1996).

Appellant having been detained without a founded suspicion prior to the officer uncovering evidence of a crime, the motion to suppress must be granted. We remand for further proceedings consistent with this opinion.

KLEIN and GROSS, JJ., concur.