          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2545
                 _____________________________

BLAKE EDWIN TRIPP,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   ___________________________

On appeal from the Circuit Court for Bay County.
Michael C. Overstreet.

                           July 9, 2018


B.L.THOMAS, C.J.

     An intoxicated pedestrian stumbling across a public
thoroughfare in Bay County attracts the attention of a citizen,
who reports the pedestrian to the sheriff’s office. A county
ordinance prohibits public intoxication that creates a safety risk.
Law enforcement officers observe the pedestrian, Appellant,
having great difficulty “keeping his bearings.” The officers talk to
Appellant, smell alcohol on his person, and ask Appellant for
identification. Appellant is able to communicate with the officers,
who check his identification as part of the investigation for a
violation of the ordinance. After noticing a bulge in Appellant’s
front pocket, the officers ask Appellant if he possesses a firearm.
Appellant tells the officers he has a gun tucked in the small of his
back. Because Appellant does not have a concealed-carry permit,
he is arrested and charged with the third-degree felony of
carrying a concealed firearm.

     Appellant filed a motion to suppress the evidence of the
concealed firearm, arguing that the officers were conducting a
welfare check, which was a consensual encounter, and the
encounter was converted to an unjustified stop when the officers
asked him to provide identification. Appellant argued there was
insufficient evidence that he was unable to care for his own
safety, as was required to support a detention under the
ordinance. The State argued that the officers had reasonable
suspicion to conduct an investigatory stop for disorderly conduct
under Terry v. Ohio, 392 U.S. 1 (1968), based on the report of an
intoxicated pedestrian and the officers’ observation of him.

     The court ruled that crossing a highway under the influence
of alcohol would cause an officer “to reasonably believe somebody
was intoxicated in a public place, doing something that . . . could
be injurious to his safety.” Appellant pled no contest, reserving
the right to appeal the dispositive motion to suppress. The court
withheld adjudication of guilt, and placed Appellant on felony
probation for eighteen months.

     On appeal, Appellant argues there was insufficient reason
for the officers to detain him based on the county ordinance, and
that even if the detention was valid, the officers conducted an
unlawful Terry stop by asking if he was carrying a firearm,
because they lacked a valid reason to believe he was armed and
dangerous. We affirm the denial of the motion to suppress on two
alternative grounds: (1) the police had reasonable suspicion to
think Appellant had violated the county ordinance, and did not
conduct an unlawful search by asking if Appellant had a weapon;
and 2) even if the police did not have reasonable suspicion to
detain Appellant for violation of the county ordinance, they had
the lawful authority to conduct a welfare check on Appellant
(despite the testimony of one officer that he was not conducting a
welfare check). Based on an objective review of the facts,
Appellant could have been injured or caused an injury or accident
in his intoxicated state, and the officers did not
unconstitutionally detain or search Appellant by asking for his
license and asking whether he had a weapon.

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     When an officer has reasonable suspicion that an individual
has committed, is committing, or is about to commit a crime—
including a violation of a criminal ordinance—the officer may
temporarily detain the person to ascertain his identity and
investigate the circumstances surrounding the suspected
criminal activity. § 901.151(2), Fla. Stat. An investigatory stop
requires more than mere suspicion; the officer must have a “well-
founded, articulable suspicion of criminal activity.” Popple v.
State, 626 So. 2d 185, 186 (Fla. 1993).

     The Bay County Code of Ordinances provides that “a person
shall be guilty of disorderly conduct if . . . his conduct is likely to
cause public danger, alarm, disorder or nuisance, [and] he
willfully . . . is in a public place under the influence of an
intoxicating liquor or drug in such a condition as to be unable to
exercise care for his own safety or the safety of others.” Bay Cty.
Code of Ordinances 15-46(c)(6). Appellant acknowledges the
evidence that he was intoxicated in public, but asserts there was
insufficient reason for the officers to believe he was unable to
protect his safety.

    The officers received a report of public intoxication and
witnessed Appellant stumbling in the crosswalk of a busy road.
Although there was no traffic at the time, and Appellant did walk
across the street in the proper cross walk, one officer said
Appellant was “tripping over his feet” and that it was “apparent
he couldn’t keep his bearings.” Another officer indicated he was
concerned Appellant was a risk to himself. Although Appellant
argues there was no evidence he had fallen down or was unable
to speak, the officers’ testimony showed they had more than a
bare suspicion he was in such a condition as to be a risk to
himself. The evidence supports a finding that, under the
ordinance, the officers could lawfully detain Appellant on
suspicion of disorderly conduct.

     Appellant argues that even if the officers were justified in
detaining him on suspicion of violating the ordinance, the firearm
should be suppressed, because there was insufficient justification
for one of the officers to ask Appellant if he had any weapons.
Florida’s Stop and Frisk law provides that when an officer has

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probable cause to believe a person, who has been lawfully
temporarily detained, “is armed with a dangerous weapon and
therefore offers a threat to the safety of the officer or any other
person,” the officer may search the person only to the extent
necessary to determine whether the person in fact has a weapon.
§ 901.151(5), Fla. Stat.

     In addressing Appellant’s arguments, we first note that we
find no basis to conclude that law enforcement officers engage in
a search by merely asking questions. Cf. D.A. v. State, 10 So. 3d
674, 677 (Fla. 3d DCA 2009) (holding, in the context of a
consensual encounter, that a question “is neither a search nor a
seizure”).   And even assuming arguendo that the officer’s
question was the functional equivalent of a Terry search, which
we do not think it was, the purported search was far less
intrusive than the typical pat-down permissible under Terry for
determining the presence of a weapon. The bulge in Appellant’s
front pocket was sufficient reason for the officer to ask Appellant
if he had a weapon. See § 901.151(5), Fla. Stat. (providing that a
Terry search must be limited only to the extent necessary to
discern the presence of a weapon).

     Furthermore, even if there were insufficient evidence for the
officers to determine Appellant was in violation of the county
ordinance, on this record we can affirm the order denying the
suppression of the gun on a separate ground. The trial court’s
ruling was correct, but perhaps for a different reason. See Caso v.
State, 524 So. 2d 422, 424 (Fla. 1988) (“A conclusion or decision of
a trial court will generally be affirmed, even when based on
erroneous reasoning, if the evidence or an alternative theory
supports it.”). Based on these facts, the officers had the lawful
authority to conduct a welfare check on Appellant’s safety.

     “It is well recognized that police officers may conduct welfare
checks and that such checks are considered consensual
encounters that do not involve constitutional implications.”
Dermio v. State, 112 So. 3d 551, 555-56 (Fla. 2d DCA 2013). And
because we must review the facts from the perspective of an
objectively reasonable law enforcement officer, the officer’s
testimony that he was not conducting a welfare check is not
dispositive. Cf. State v. Scott, 774 So. 2d 794, 795-96 (Fla. 3d

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DCA 2000) (explaining that validity of searches and seizures
under Florida law is construed in conformity with decisions of the
United States Supreme Court interpreting the Fourth
Amendment, and noting an officer’s actions are judged by an
objective standard).     Here, an objectively reasonable law
enforcement officer would have justifiably checked on Appellant’s
welfare, even without the suspicion that Appellant had violated
the Bay County ordinance, based on the citizen’s report and the
officer’s own observations.

     Thus, because it was lawful for the officer to check on
Appellant’s welfare, it was also lawful for the officers to ask
Appellant about his identification and whether he had a weapon
on his person. Asking for identification during a welfare check
does not convert the consensual encounter into a seizure. See
State v. Baez, 894 So. 2d 115, 116 (Fla. 2004) (concluding officer
who responded to a call about a suspicious vehicle, saw the
defendant slumped over the steering wheel, knocked on vehicle
window to ask if the defendant was all right, requested the
defendant’s identification, and arrested the defendant after the
license check revealed an outstanding warrant, had only engaged
the defendant in a consensual encounter). And “[i]t is well-
settled that asking a question of a person not in custody is
neither a search nor a seizure.” D.A., 10 So. 3d at 677 (emphasis
in original). Therefore, we affirm the trial court’s order denying
Appellant’s motion to suppress.

    AFFIRMED.

WOLF and RAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Andy Thomas, Public Defender, Justin Foster Karpf, Assistant
Public Defender, Tallahassee, for Appellant.


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Pamela Jo Bondi, Attorney General, Barbara Debelius, Assistant
Attorney General, Tallahassee, for Appellee.




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