              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT



MARQUESE D. GOODMAN,                      )
                                          )
             Appellant,                   )
                                          )
v.                                        )         Case No. 2D18-1632
                                          )
STATE OF FLORIDA,                         )
                                          )
             Appellee.                    )
                                          )

Opinion filed September 27, 2019.

Appeal from the Circuit Court for
Hillsborough County; Mark D. Kiser,
Judge.

Howard L. Dimmig, II, Public Defender,
and Daniel Muller, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa; and
Bilal Ahmed Faruqui, Assistant Attorney
General, Tampa (substituted as counsel
of record), for Appellee.
ATKINSON, Judge.

              Marquese Goodman appeals the judgment and sentences entered against

him on four counts of drug possession and one count of resisting without violence.1 The

State failed to establish that the officer had probable cause to arrest Mr. Goodman for

failing to comply with the officer's initial, nonverbal request to stop and failed to establish

reasonable suspicion that Mr. Goodman was armed and dangerous to justify the

subsequent frisk. As such, we must reverse the trial court's denial of Mr. Goodman's

motion to suppress the contents of a pill bottle recovered during the encounter.

                                              I.

              On the night of October 8, 2017, Marquese Goodman, clothed in a t-shirt

and athletic shorts, was riding his bicycle in the middle of the street. A law enforcement

officer was outside his vehicle finishing another stop when he observed that Mr.

Goodman's bicycle did not have a light.2 Intending to stop Mr. Goodman for that traffic

infraction, the officer entered his patrol vehicle, followed Mr. Goodman, and activated

his lights. At that point, Mr. Goodman looked back but continued riding. The officer

then used his siren, giving it a yelp, in an effort to get Mr. Goodman to stop. The officer

admitted that there were other people in the area behind him and that he did not call out

to Mr. Goodman. However, he believed that Mr. Goodman should have known that the

officer was directing him to stop using his lights and siren because Mr. Goodman



              1Mr.Goodman pled guilty to these charges but reserved the right to
appeal the denial of his dispositive motion to suppress.
              2See
                 § 316.2065(7), Fla. Stat. (2017) (requiring that each bicycle used
between sunset and sunrise have a light visible from at least 500 feet).
                                             -2-
stopped, jumped off of his bicycle, and began walking away from the officer after first

looking at the officer and "acknowledging that [his] lights were activated for a traffic

stop."

              At that point, the officer exited his patrol vehicle, began running after Mr.

Goodman and, when he was approximately twenty-five feet away, ordered him to stop.

Mr. Goodman immediately complied, and then he began walking towards the officer

with his bicycle. It is from this point that the officer's body camera video begins and

depicts the rest of the encounter.

              As the officer approached, Mr. Goodman parked his bicycle in between

himself and the officer. Without being instructed to do so, Mr. Goodman walked a few

feet to the curb and sat down. This forced the officer to walk around the bicycle to

approach Mr. Goodman, who was seated on the curb, leaning forward with his elbows

resting on his knees and his hands positioned in front of his body.

              To the officer, Mr. Goodman appeared very nervous. Understandably, the

officer attested to being nervous himself, in light of Mr. Goodman's initial failure to stop,

his unprompted decision to sit down on the curb, and the fact that Mr. Goodman was

"hunching over and leaning onto his right side." The officer believed that Mr. Goodman

was "trying to conceal something," given the "way he was sitting" and his abnormal

demeanor. The officer described Mr. Goodman as "using his right arm with his right leg

and ha[ving] it extended to a point where he was almost resting and trying to avoid me

seeing the right side of his body."

              The officer asked Mr. Goodman if he had any identification on him, and

Mr. Goodman responded in the negative. He then asked Mr. Goodman if he had


                                            -3-
anything on him with his name on it. Mr. Goodman replied that he did and began

rummaging through his pocket to comply with the officer's request. Before he could do

so, the officer abruptly asked Mr. Goodman to stand up, at which point he began to frisk

Mr. Goodman. The officer stated that he decided to conduct this pat-down for officer

safety as another officer was approaching because Mr. Goodman was acting as if "he

was hiding something which could possibly could be a weapon on his right side."

              The officer began the pat-down by focusing on that right side. He

immediately felt a large, hard object in Mr. Goodman's right pocket, which the officer

recognized as a pill bottle. At that point, Mr. Goodman "braced and tensed" then

attempted to flee but made it only six or eight steps before being taken down by the two

officers, who handcuffed him and placed him under arrest. Officers located a

prescription bottle approximately two or three feet away from Mr. Goodman. The bottle

contained marijuana, pills imprinted "MDMA Ecstasy," eight white rocks appearing to be

cocaine, and a few Adderall pills.

              The trial court denied Mr. Goodman's motion to suppress. Acknowledging

that it was not as clear on the video as it was from the officer's testimony, the trial court

concluded that there was reasonable suspicion that Mr. Goodman was armed in light of

the officer's description of Mr. Goodman's actions and the way he was hunching over.3




              3The  trial court found that there was "not a true inconsistenc[y] between
the video and the officer's testimony" (the latter of which did not include a description of
Goodman's hands). However, we conduct an independent review of the recording as
part of our assessment of the totality of the circumstances. See State v. Thompson,
193 So. 3d 916, 919 (Fla. 2d DCA 2016) ("An appellate court may independently review
the audio recording of an interview to assess whether competent, substantial evidence
supports the trial court’s findings." (citing Cuervo v. State, 967 So. 2d 155, 160 (Fla.
2007))); see also Almeida v. State, 737 So. 2d 520, 524 n.9 (Fla. 1999) ("The trial court
                                            -4-
The court reasoned that because Mr. Goodman attempted to flee from a lawful pat-

down, the arrest was justified and the search of the pill bottle was incident to that lawful

arrest.

              A determination as to whether a reasonable suspicion exists under a given

set of facts is a question of law that is reviewed de novo. Beahan v. State, 41 So. 3d

1000, 1002 (Fla. 1st DCA 2010). The trial court's factual findings, however, are

presumed correct and reviewed to determine if they are supported by competent,

substantial evidence. See Dawson v. State, 58 So. 3d 419, 421 (Fla. 2d DCA 2011).

                                             II.

              Although not argued in the trial court, the State contends on appeal that

the search of Mr. Goodman was valid because the officer had probable cause to arrest

him for resisting an officer without violence before the pat-down occurred. However, the

State failed to adduce sufficient evidence at the suppression hearing to permit

affirmance on this basis.4

              Law enforcement officers "must have probable cause to arrest and search

a person without a warrant." State v. Zachery, 255 So. 3d 957, 961 (Fla. 2d DCA 2018)




had no special vantage point in reviewing this tape."); Taylor v. State, 276 So. 3d 98, 98
(Fla. 2d DCA 2019).
              4Under   the tipsy coachman doctrine, an appellate court can "affirm a trial
court that 'reaches the right result, but for the wrong reasons' so long as 'there is any
basis which would support the judgment in the record.' " Robertson v. State, 829 So. 2d
901, 906 (Fla. 2002) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d
638, 644 (Fla. 1999)). The State bore the burden of establishing that the warrantless
search of Mr. Goodman was incident to a lawful arrest. See Gnann v. State, 662 So. 2d
406, 408 (Fla. 2d DCA 1995) ("Because the officers failed to obtain a warrant and the
state failed to prove that Gnann's arrest and the subsequent search were lawful, the
motion to suppress should have been granted.").
                                            -5-
(citing Gomez v. State, 155 So. 3d 1184, 1187 (Fla. 4th DCA 2014)). Probable cause to

justify an arrest requires facts and circumstances that "allow a reasonable officer to

conclude that an offense has been committed." Mathis v. Coats, 24 So. 3d 1284, 1288

(Fla. 2d DCA 2010). The crime of resisting an officer without violence occurs when a

suspect (1) knowingly (2) resists, obstructs, or opposes a law enforcement officer (3)

who is in the lawful execution of any legal duty. See § 843.02, Fla. Stat. (2017); Brown

v. State, 199 So. 3d 1010, 1012 (Fla. 4th DCA 2016) ("[T]he state's evidence was

insufficient to prove that the defendant knew of the police's intent to detain him.").

              Generally, "flight, standing alone, is insufficient to form the basis of a

resisting without violence charge." C.E.L. v. State, 24 So. 3d 1181, 1186 (Fla. 2009).

"[A]n individual who flees must know of the officer's intent to detain him." Id.; accord

McClain v. State, 202 So. 3d 140, 141, 143 (Fla. 2d DCA 2016) (concluding that the

defendant's conviction could not stand where he ran into his grandmother's duplex

before the officer could order him to stop); S.B. v. State, 31 So. 3d 968, 970 (Fla. 4th

DCA 2010) ("[A]lthough the evidence may reflect that S.B. was aware that he had

caught the officers' attention when he began to flee, it does not prove that he had

knowledge that the officers intended to detain him.").

              Where there is a command to stop, there must be evidence that the

individual actually heard it (or perceived it, if it was nonverbal) and that the individual

understood that the command was directed at him. Compare O.B. v. State, 36 So. 3d

784, 788 (Fla. 3d DCA 2010) ("[T]here is no evidence that O.B. heard any order to stop;

in fact, he testified that when he 'took off running,' he did not hear the officers issue a

command, and he was unaware whether an officer was after him in particular."), with


                                             -6-
Montanez v. City of Orlando, 678 Fed. Appx. 905, 909 (11th Cir. 2017) (finding that an

officer had probable cause to arrest the defendant for resisting an officer without

violence where, after the officer commanded the two bicyclists to stop, one complied

while the other continued to peddle away, making it reasonable for the officer to

conclude that the defendant heard the command but deliberately refused to obey), and

United States v. Merricks, 572 Fed. Appx. 753, 757 (11th Cir. 2014) (finding probable

cause to arrest for resisting or opposing the police without violence where defendant

had pedaled faster after realizing officers were following him with police lights activated

before walking away after failing to heed the officers' verbal commands to stop).

              Here, there is insufficient evidence to justify the arrest of Mr. Goodman for

intentionally fleeing from the officer before the pat-down. The officer's initial command

to stop—the activation of lights and the yelp of a siren—was nonverbal. Knowledge of

an officer's intention to detain a pedestrian or bicyclist can be established by nonverbal

communication under the appropriate facts. However, in this case the defendant

actually obeyed the subsequent verbal command, strongly suggesting that the

preceding, ambiguous law enforcement activity could have been perceived by a

reasonable cyclist as unrelated to himself. Without testimony about how closely the

officer followed behind Mr. Goodman with his lights activated or for how long, we cannot

surmise whether Mr. Goodman knew that the officer was directing him to stop. Cf. State

v. Kirer, 120 So. 3d 60, 61, 64 (Fla. 4th DCA 2013) (finding probable cause that the

driver fled or eluded the deputy by making five turns after the deputy followed two car

lengths behind the driver for almost five minutes with lights and siren activated and

ordered the driver to stop multiple times over his vehicle's P.A. system); Henderson v.


                                           -7-
State, 88 So. 3d 1060, 1063 (Fla. 1st DCA 2012) ("[W]hen the officers attempted to pull

appellant over with lights and sirens activated, appellant continued to drive for nearly

two miles, providing probable cause to stop him for violating section 316.1935(2).").

              Nor can we conclude based on Mr. Goodman's actions that he knowingly

refused to stop. It is not enough to establish that an individual perceived an officer's

nonverbal cue if there is nothing to support that the individual understood it as a

command for him to stop. The officer here testified that Mr. Goodman looked back after

the lights were on and continued riding before getting off his bicycle and walking it away

from the officer after the yelp from the siren. Although this might suggest that Mr.

Goodman knew the officer was attempting to communicate with someone, there is no

indication, especially based on his subsequent actions, that he understood that the

officer was ordering him to stop. Mr. Goodman did not increase his speed or engage in

any evasive maneuvers. And once the officer verbally directed Mr. Goodman to stop,

he immediately complied. Cf. Merricks, 572 Fed. Appx. at 757 (concluding that officers

had probable cause to arrest the defendant after he began pedaling faster once the

patrol vehicle's lights were activated and he failed to respond to the officers' verbal

commands).

              Even though the officer may have harbored an intuition that Mr. Goodman

was aware that the officer was commanding him to stop, that subjective belief alone

cannot satisfy the requirement of an objective assessment of whether he had probable

cause to arrest Mr. Goodman for resisting without violence. See Illinois v. Gates, 462

U.S. 213, 272 (1983) ("[W]e have repeatedly held that the unsupported assertion

or belief of an officer does not satisfy the probable cause requirement."); cf. G.M. v.


                                            -8-
State, 19 So. 3d 973, 980 n.5 (Fla. 2009) ("Although the officers may have activated

their lights to indicate that they were police officers, the United States Supreme Court

has held that the subjective intent of police officers is 'relevant to an assessment of the

Fourth Amendment implications of police conduct only to the extent that that intent has

been conveyed to the person confronted.' " (quoting Michigan v. Chesternut, 486 U.S.

567, 575 n.7 (1988))).

              Because the officer lacked probable cause to arrest Mr. Goodman for

resisting without violence before the pat-down occurred, the search incident to Mr.

Goodman's subsequent arrest cannot be affirmed under the tipsy coachman doctrine.

                                             III.

              Mr. Goodman contends that the officer who lawfully detained him for the

traffic infraction of failing to have a light on his bicycle subsequently conducted an illegal

Terry5 frisk. He claims that the officer's stated bases for conducting the pat-down did

not amount to reasonable suspicion that he was armed and dangerous.

              A legal predicate for the initial stop does not, without more, justify a pat-

down for weapons. See State v. Herron, 68 So. 3d 330, 331 (Fla. 3d DCA 2011).

Rather, "the police must harbor reasonable suspicion that the person subjected to the

frisk is armed and dangerous." Arizona v. Johnson, 555 U.S. 323, 327 (2009); accord

State v. Callaway, 582 So. 2d 745, 746 (Fla. 2d DCA 1991) ("The standard for

evaluating the reasonableness of a frisk is 'whether the officer is justified in believing the

defendant is armed and dangerous.' " (quoting State v. Webb, 398 So. 2d 820, 821

(Fla. 1981))). The reasonableness of the officer's suspicion depends upon the totality of



              5Terry   v. Ohio, 392 U.S. 1 (1968).
                                            -9-
the circumstances, including the officer's training and experience. See State v. Cruse,

121 So. 3d 91, 99 (Fla. 3d DCA 2013) (citing Enich v. State, 838 So. 2d 1216, 1218

(Fla. 3d DCA 2003)).

             Here, the officer testified that he conducted the pat-down of Mr. Goodman

because (1) he attempted to avoid the initial stop, (2) he appeared nervous, (3) he

placed his bicycle between himself and the officer, (4) he sat down on the curb without

being instructed to do so, and (5) while sitting there, "he hunched over then leaned

toward his right side as if to conceal something." Florida courts have found pat-down

searches following traffic stops unjustified under similar facts. See, e.g., Dawson, 58

So. 3d at 422 (refusing to comply with requests to keep hands out of pockets); Coleman

v. State, 723 So. 2d 387, 387–88 (Fla. 2d DCA 1999) (acting nervous and holding hand

over pants pocket); Smith v. State, 735 So. 2d 570, 572 (Fla. 2d DCA 1999) (acting

nervous and perspiring); Griffin v. State, 150 So. 3d 288, 291–92 (Fla. 1st DCA 2014)

(standing with hands in pockets in high crime area); Herron, 68 So. 3d at 331 (acting

nervous and fidgety and looking out of the window for "an avenue of escape"); C.D. v.

State, 82 So. 3d 1037, 1039–40 (Fla. 4th DCA 2011) (walking away from officer then

moving hands towards pockets); D.B.P. v. State, 31 So. 3d 883, 887 (Fla. 5th DCA

2010) (reaching into pocket repeatedly); State v. Barnes, 979 So. 2d 991, 993 (Fla. 4th

DCA 2008) (appearing nervous and attempting to place hands in pockets as officer

approached); Ray v. State, 849 So. 2d 1222, 1225 (Fla. 4th DCA 2003) (expressing

reluctance to remove hands from pockets).

             Where, as here, there are multiple bases for the pat-down, they must be

considered cumulatively in determining whether there is reasonable suspicion to believe


                                          - 10 -
an individual is armed and dangerous. See United States v. Bunkley, 281 Fed. Appx.

886, 889 (11th Cir. 2008); cf. Cresswell v. State, 564 So. 2d 480, 483 (Fla. 1990)

("Although these facts viewed individually could be consistent with legal behavior, when

viewed together by a trained law enforcement officer such facts, 'meaningless to the

untrained, can be combined with permissible deductions from such facts to form a

legitimate basis for suspicion of a particular person and for action on that suspicion.' "

(quoting United States v. Cortez, 449 U.S. 411, 419 (1981))).

              After being detained for a traffic stop, Mr. Goodman immediately placed

the bicycle between himself and the officer, forcing the officer to walk around it. Mr.

Goodman walked away from the officer and sat on the curb without being prompted to

do so. This made the officer "immediately nervous," especially since "he was hunching

over and leaning onto his right side when he was sitting down." This suggested to the

officer, based on his experience, that Mr. Goodman was attempting to conceal

something on his right side, which was possibly a weapon. However, there are no

specific facts indicating that what Mr. Goodman might have been attempting to conceal

was a weapon, as opposed to some other type of contraband. See Moore v. State, 874

So. 2d 42, 43 (Fla. 2d DCA 2004) (concluding that the officer's mere belief that all of the

passengers were armed did not justify the pat-downs where that belief was "not

grounded in any factual support").

              Nor did Mr. Goodman behave in a manner that would otherwise indicate

that he was dangerous. To pat down an individual detained following a noncriminal

traffic infraction, the officer must possess some information indicating that the detainee

poses a threat to the officer's safety or to the safety of others. Compare State v. Jones,


                                           - 11 -
203 So. 3d 972, 973–74 (Fla. 2d DCA 2016) (holding that neither the body position of

Mr. Jones nor his effort to retrieve his identification from his bookbag created a

reasonable suspicion that he possessed a weapon or "otherwise posed a reasonable

concern for officer safety"), with Cole v. State, 190 So. 3d 185, 187, 189 (Fla. 3d DCA

2016) (concluding that an officer had reasonable suspicion to believe a driver posed a

threat to the officer's safety where he "was sweating, bouncing his legs up and down,

and looked afraid" and was tightly gripping a pen with his fists clenched), June v. State,

131 So. 3d 2, 7–8 (Fla. 1st DCA 2012) (holding that the officer reasonably suspected

that the bicyclist was "armed and potentially dangerous" where he acted nervous after

admitting to having a pocketknife, and he continuously reached for the pocket

containing that knife), and State v. Louis, 571 So. 2d 1358, 1358–59 (Fla. 4th DCA

1990) (noting that the officer reasonably feared for his safety where the driver walked

around the vehicle erratically with his hands in the pockets of his bulky jacket).

              The State did not meet its burden of adducing facts sufficient to conclude

that Mr. Goodman was armed and dangerous. Mr. Goodman may have ostensibly

failed to heed the officer's initial nonverbal instructions, but after the audible order to

stop, he immediately parked his bike and complied. Mr. Goodman walked several feet

and sat down on the curb in a hunched-over position without being instructed to do so,

but his decision to move away from his bicycle and to sit down, although unsolicited,

arguably made him less of a flight risk. With his bicycle, he would have been more

likely to successfully elude the officer who was now on foot; having separated himself

from his previous means of locomotion, it would be difficult for him to stand up, retrieve

it, then peddle away without being apprehended.


                                            - 12 -
              Mr. Goodman also answered all of the officer's questions, and it is clear

from the video that he held his hands away from his body so that the officer could see

them throughout the encounter. Moreover, he did not make any furtive movements or

gestures, and it was only after the officer asked Mr. Goodman for something with which

to identify himself that he placed his hand anywhere near his pocket. Cf. State v.

Raines, 576 So. 2d 896, 898 (Fla. 2d DCA 1991) (upholding the pat-down where Mr.

Raines "quickly moved his hands under the driver's seat in an attempt to conceal

something"); State v. Wilson, 566 So. 2d 585, 586 (Fla. 2d DCA 1990) (concluding there

was reasonable suspicion for the pat-down after "the defendant repeatedly reached

behind himself, touching the waistband of his pants"); Cruse, 121 So. 3d at 100 (finding

reasonable suspicion where the officer saw Mr. Cruse manipulate his waistband and

"hike up" his pants which "was a known indicator of someone carrying a gun" without a

holster).

              It is true that the sum of individual facts which may not in isolation justify a

Terry frisk might, in some cases, be greater than those parts; however, this is not such

a case. Here, the totality of the circumstances was insufficient to justify the pat-down of

Mr. Goodman. Rather than acting aggressively, behaving erratically, or otherwise

conducting himself in a threatening manner, Mr. Goodman was compliant and assumed

a position that made him less of a threat to the officers.

              While we acknowledge and appreciate that law enforcement officers

contend with perilous, often life-or-death scenarios on a regular basis and develop

instincts and intuition not common to those who do not perform the dangerous work

they do, controlling law places the burden on the State to establish an objective


                                            - 13 -
justification for a warrantless pat-down search. Because there were no articulable facts

to support the officer's belief that Mr. Goodman was armed and dangerous, the trial

court erred when it concluded that the pat-down was lawful.

                                            IV.

              Whether the trial court properly denied the motion to suppress also turns

on the application of the exclusionary rule, which bars "from trial the physical, tangible

materials obtained either during or as a direct result of an unlawful invasion." See

Wong Sun v. United States, 371 U.S. 471, 486 (1963). The rule is inapplicable if "the

evidence would have inevitably been discovered in the course of a legitimate

investigation" or "sufficient attenuation existed between the challenged evidence and

the illegal conduct." Moody v. State, 842 So. 2d 754, 759 (Fla. 2003).

              The officers would not have inevitably discovered the pill bottle during the

course of their traffic investigation. See Moody, 842 So. 2d at 759 (finding the inevitable

discovery doctrine inapplicable where the police were not already in possession of facts

that would have led to the evidence notwithstanding the police misconduct). The only

information that the officers had about Mr. Goodman was that he was riding his bicycle

at night without a light. Because they could not have arrested him for this noncriminal

traffic infraction, they could not have discovered the pill bottle while conducting a search

incident to arrest.

              And there was no attenuation between the illegal Terry frisk and the

seizure of the narcotics. The pill bottle fell out of Mr. Goodman's pocket at some point

during his attempt to flee from the illegal pat-down and the almost immediate tackle by

the officers, who recovered the bottle on the ground a few feet away from where they


                                           - 14 -
had apprehended him. See State v. Dickey, 203 So. 3d 958, 964 (Fla. 1st DCA 2016)

("[T]he contraband that was ultimately discovered on Appellee's person was found as a

direct result of the deputy's exploitation of his illegal actions.").

                                               V.

               For the foregoing reasons, the trial court's order denying Mr. Goodman's

motion to suppress is reversed and remanded with directions for discharge. See

Beezley v. State, 863 So. 2d 386, 388 (Fla. 2d DCA 2003) ("Because the motion was

dispositive, we reverse and remand for Beezley's discharge on all three counts.").

               Reversed and remanded with directions.

SILBERMAN and LaROSE, JJ., Concur.




                                             - 15 -
