          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                      MARCUS KENNARD LEWIS,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-4587

                             [July 23, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No.
2011CF003208AMB.

   Carey Haughwout, Public Defender, and Louis G. Carres, Special
Assistant Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The parameters of the Fourth Amendment are on review in this appeal
from a criminal conviction and sentence for robbery and aggravated
assault, both with a firearm and while wearing a mask. The defendant
argues the trial court erred in denying his motion to suppress because law
enforcement exceeded a consensual encounter with the defendant without
reasonable suspicion. He also argues the trial court erred in admitting
evidence of collateral crimes. We agree that the court erred in denying his
motion to suppress and therefore reverse in part. We see no error in the
admission of the collateral crime evidence and affirm on that issue.

   On December 22, 2010, the defendant entered a food mart wearing a
bright-yellow knit face mask and carrying a black handgun. He placed a
bag, resembling a lady’s purse, on the counter and demanded money. The
clerk thought the defendant was familiar with the store because he pointed
the gun precisely where money was held for the next shift. The clerk gave
the money to the defendant, who exited the store and went east.
   A witness, pulling out of a gas station across the street, saw the
defendant approach the food mart, pull the yellow mask over his face, and
enter the store. The witness called 911. He watched the defendant leave
the store and go east.

    The witness followed the suspect. At one point, the defendant stopped,
turned around, and yelled for the witness not to call the police. This
allowed the witness to get a good view of the defendant’s face. The police
responded to the scene, but did not find the defendant.

     Six days later, the defendant entered the same food mart, where two
other clerks were working. The defendant wore a black shirt, black
trousers, a face mask, and gloves. He brandished a firearm and ordered
one of the two clerks to give him the money. The defendant placed a bag
on the counter and, after receiving the money, pointed his weapon at the
same location where money was held for the next shift. After the clerk
filled the bag with money, the defendant again left in an easterly direction.

   The first deputy on scene met with the two clerks. One of them showed
the deputy the direction in which the suspect left. The deputy issued a
BOLO and began searching for the suspect. The deputy saw a male fitting
the suspect’s physical description, but wearing different clothing. The
deputy shined his searchlight on him. Because he did not seem startled
and did not take flight, the deputy continued on his way.

   A second deputy in a marked police vehicle with his lights engaged was
participating in a perimeter sweep. He saw the defendant, who looked over
his shoulder at least twice in the direction of the food mart. No one else
was walking in the area at the time.

   The second deputy blocked the defendant’s path with his vehicle,
stepped out of the car, and approached him. He announced his presence
and said: “Hey, come over here; I’d like to talk with you.” The defendant
complied.

   Upon making contact, the deputy placed his hands on the defendant’s
chest and back, admittedly to see if the defendant’s heartbeat was elevated
or if his shirt was hot or cold. The defendant told the deputy that his
cousin drove him home to get money, and he was walking back to
McDonalds to meet his cousin. At this point, the deputy felt his suspicion
had been raised enough to detain the defendant. He placed the defendant




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in the back of his patrol car to await a show-up.1

   The first deputy returned to where the defendant was being detained.
He recognized him as the person he saw earlier. He questioned him
without giving him Miranda warnings. The deputy returned to where he
originally saw the defendant and started searching the bushes. He
recovered a brown glove, a navy-blue hooded sweatshirt, a checkered
purse, a firearm, a yellow mask, and shoes.

   Several weeks later, a detective conducted a photo lineup with the
witness from the first robbery, who positively identified the defendant.
Based on that identification, the State charged the defendant with the first
robbery. The yellow mask and firearm were tested and found to contain
the defendant’s DNA. The State then charged the defendant with the
second robbery.

    Prior to trial on the second robbery, the defendant moved to suppress
all evidence obtained as a result of the stop. He argued that the encounter
with the second deputy was not consensual because a reasonable person
would not have felt free to leave. He argued that the encounter was an
illegal stop because the second deputy did not have reasonable suspicion
that he was engaged in criminal activity. Because the stop was illegal, the
defendant argued that all evidence found as a result, including the DNA
evidence, was the fruit of an illegal stop and should be suppressed. He
also argued that his statements must be suppressed because he was never
read Miranda warnings.

   The State responded that the stop was legal and within the scope of a
consensual encounter. Alternatively, if the stop was illegal, the evidence
would have been inevitably found by officers.

   The trial court denied the motion to suppress, finding that the
defendant was not detained and his statements to the second deputy were
part of a consensual encounter. The court also found that the first
deputy’s identification of the defendant in the back of the police car need
not be suppressed because the initial stop was legal. The court, however,
suppressed the defendant’s statements to the first deputy because he was
not read Miranda warnings.

    The case proceeded to trial. The jury found the defendant guilty of

1 At the suppression hearing, the second deputy testified that the defendant was
not under arrest at that time. The show-up was negative, but the second deputy
learned that the defendant was violating curfew, so he placed him under arrest.

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robbery with a firearm while wearing a mask, and aggravated assault with
a firearm while wearing a mask. The court sentenced the defendant to
fifteen years’ imprisonment for the robbery, with a ten-year mandatory
minimum for possession of a firearm, and five consecutive years on the
aggravated assault charge, with a three-year mandatory minimum for
possession of a firearm. From his conviction and sentence, the defendant
now appeals.

   On appeal, the defendant maintains the trial court erred in denying his
motion to suppress because the deputy’s touching of him exceeded a
consensual encounter. The State responds that the interaction between
the deputy and the defendant was a consensual encounter, and the
defendant was free to ignore the deputy’s questions and continue on his
way. The State argues that reasonable suspicion was unnecessary
because it was a consensual encounter.

   We have a mixed standard of review. We defer to the trial court’s factual
findings, but independently determine whether those facts amount to
reasonable suspicion as a matter of law. Miranda v. State, 816 So. 2d 132,
134 (Fla. 4th DCA 2002).

   We agree with the defendant that what started as a consensual
encounter transformed into a stop without the requisite reasonable
suspicion when the deputy placed his hands on the defendant. As such,
the trial court erred in denying the motion to suppress. This case is similar
to Copeland v. State, 717 So. 2d 83 (Fla. 1st DCA 1998).

   There, deputies were patrolling a high-crime area when they recognized
two individuals, one of whom was Copeland. Id. at 84. The deputies spoke
with them until one of the deputies noticed a bulge in Copeland’s pocket
and squeezed it. Id. After discovering that it was not hard or metallic, the
deputy asked what the object was. Id. Copeland responded that it was
“reefer,” and was subsequently arrested for possession of marijuana. Id.

   Copeland moved to suppress the drugs, arguing that the officer’s
touching transformed the consensual encounter into a stop without
reasonable suspicion. Id. The trial court denied the motion, and Copeland
appealed. Id. The First District reversed, holding that the motion to
suppress should have been granted because the touching turned the
consensual encounter into a stop. Id. at 85.

   Here, as in Copeland, the initial encounter with the defendant was
consensual. The second deputy testified that his interaction with the
defendant was nonchalant and consensual. He asked the defendant to

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approach for questioning. The defendant complied. But the consensual
nature of the encounter ceased when the deputy touched the defendant’s
chest and back, admittedly to gain information about his heart rate and
temperature. While these determinations would, and did, raise the level
of the deputy’s suspicion, they also converted the consensual encounter
into a stop.

   “Although there is no litmus-paper test for distinguishing a consensual
encounter from a seizure, a significant identifying characteristic of a
consensual encounter is that the officer cannot hinder or restrict the
person’s freedom to leave or freedom to refuse to answer inquiries . . . .”
Golphin v. State, 945 So. 2d 1174, 1182 (Fla. 2006) (quoting Popple v.
State, 626 So. 2d 185, 187–88 (Fla. 1993)). When viewed objectively, a
reasonable person would not feel free to leave under the circumstances
presented here. The trial court erred in denying the motion to suppress.

   This error also intruded on the court’s ruling concerning the evidence
discovered as a result of the stop. The State relies on the inevitable
discovery doctrine to avoid the consequences of the illegal stop, but that
doctrine is inapplicable here.

   “For the inevitable discovery doctrine to apply, the state must establish
by a preponderance of the evidence that the police ultimately would have
discovered the evidence independently of the improper police conduct . . . .”
McDonnell v. State, 981 So. 2d 585, 591 (Fla. 1st DCA 2008) (emphasis
added). The State had the burden of proving that the evidence would have
been found regardless of seeing or speaking to the defendant. Id. at 591–
92.

   The first deputy testified that once he saw the defendant in the back of
the police car, he recognized him as the man he had seen earlier. The
defendant’s answers to his questions gave him the idea to go back and
search the bushes. It is therefore unlikely that the deputy would have
returned to the defendant’s prior location to search without the benefit of
the unlawful stop and his questioning of the defendant.2 For this reason,
the trial court should have suppressed the evidence found by the bushes.

   We find no merit in the Williams3 rule issue raised. The trial court
correctly found that the robberies were sufficiently similar to warrant the

   2 While the trial court suppressed that conversation, the fact remains that the
deputy returned to search the location because of the answers given to him by
the defendant, who had not been read his Miranda warnings.
   3 Williams v. State, 621 So. 2d 413 (Fla. 1993).


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introduction of the evidence of the first robbery. See Johnson v. State, 110
So. 3d 954 (Fla. 4th DCA 2013) (affirming the admission of Williams rule
evidence where each robbery was committed at a similar location in a
similar way, and within close temporal proximity). Here, the two robberies
were committed in the same location, six days apart, by a single suspect.
The suspect held a gun in his right hand, wore a bright-yellow mask,
carried a checkered bag that he placed on the counter, pointed the gun at
a location where money was kept, scanned the room during the robbery,
and held the mask in place with his left hand. Store security cameras
recorded the similarity of both robberies.

    For these reasons, we reverse the denial of the motion to suppress, but
affirm the admission of Williams rule evidence.

   Affirmed in part; Reversed in part; and Remanded for further proceedings
consistent with this opinion.

DAMOORGIAN, C.J., and WARNER, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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