          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           LUDERS CROISSY,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-4092

                           [January 20, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562013CF002358A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his convictions and sentences for tampering
with evidence, possession of methamphetamine, possession with intent to
sell cannabis over twenty grams, and use or possession of drug
paraphernalia. He argues the trial court erred in denying his motion to
suppress. We agree and reverse.

    The defendant moved to suppress “methamphetamine, and any other
evidence, physical or testimonial, including statements of the [d]efendant,
as being illegally seized without a warrant.” The court denied the motion
to suppress, and the defendant entered a no contest plea to tampering
with evidence, possession of methamphetamine, possession with intent to
sell cannabis over twenty grams, and use or possession of drug
paraphernalia. The State nolle prossed the count for possession of a
firearm or ammunition by a convicted felon. The following testimony was
elicited during the motion to suppress.

   The arresting officer testified that he received a BOLO from another
officer who was attempting to pull over a vehicle on Rosser Boulevard, after
witnessing the vehicle speeding. The BOLO advised that the vehicle had
pulled over on the side of Rosser Boulevard and Haylake Avenue, and
provided a “vague description of two black males” exiting the vehicle. It
gave no other physical or clothing description.

   When the officer responded to the scene, he observed the described
vehicle on the southwest corner of the intersection of Rosser and Haylake,
facing the woods, with both the driver’s side and passenger’s side doors
open and no one inside. Within a minute or two of receiving the BOLO,
the officer traveled down Haylake, made a left turn onto Cohutta Street,
and immediately saw a black male standing in the center of the road,
approximately one block or three-hundred yards from the abandoned
vehicle.

    The officer pulled his vehicle up to the defendant, exited, and made
contact to determine if the defendant had any knowledge of what happened
with the abandoned vehicle. He asked the defendant for his name, and
immediately noticed that the defendant was sweating profusely and was
extremely out of breath. According to the officer, the defendant looked
very suspicious because he was standing in the middle of the road trying
to talk to a resident.

   The officer asked the defendant where he was going and where he had
been. The defendant responded that he was walking home from Dreyfuss
Lake. The officer asked the defendant to hold on and went to speak with
the resident. The defendant was not wearing any type of athletic gear. It
seemed odd to the officer that the defendant was out of breath while
standing in the middle of the road.

    The officer asked the resident if she knew the defendant. She told the
officer that she saw the defendant walking down the street and he started
to talk to her. She did not know him. The officer’s suspicions increased
after speaking with the resident so he requested back-up. The defendant
then told the officer that he lived on Rosser Boulevard. He explained he
was hanging out at Dreyfuss Lake and was walking home. He did not tell
the officer what he was doing, who he was with, or any other information.

   Dreyfuss Lake was approximately one mile to one-and-a-half miles from
where they were located. The officer surmised that if the defendant was
walking from Dreyfuss Lake to his home on Rosser Boulevard, there would
be no reason for him to be on Cohutta. This fact also piqued the officer’s
interest.


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   The officer then handcuffed the defendant for his safety and that of the
defendant so he could check for weapons. He told the defendant he was
not under arrest, but that he was placing him in handcuffs to detain him
until back-up arrived.

   After handcuffing the defendant, the officer checked his pockets for
weapons. He removed the defendant’s cell phone and some type of
cigarette wrapper and placed them on the hood of his vehicle while they
waited for back-up. When the back-up officer arrived, the arresting officer
spoke to the resident again. She advised that just minutes before the
defendant walked up, she saw another black male walking down the road
holding a child.

    While speaking with the resident, the officer observed the defendant
fidgeting and reaching to grab his cell phone, which was ringing
constantly. The officer walked back to his car and saw the defendant
stomping on something in the road. He looked down and observed a bag
containing a pinkish white rock on the ground by the defendant’s feet. The
officer testified the bag was not on the ground when he first made contact
with the defendant.           The substance field tested positive for
methamphetamine. The officer placed the defendant in the back-up
officer’s car. When others searched the abandoned vehicle, they found
more drugs matching the substance and color of the rock the officer found
near the defendant’s feet.

   On cross-examination, the officer admitted he never saw the
abandoned vehicle being driven. He admitted he spoke to the defendant
only because he was a black male, who matched the BOLO’s limited
description. He admitted it was a warm afternoon. After his suspicion
was aroused by his conversation with the resident, he thought he had
reasonable suspicion for a Terry1 stop.

    The officer did not know whether the defendant was armed, but he did
have a bulge in his pocket. The bulge was the defendant’s large Galaxy
droid type phone, which was not in the shape of a firearm. While the
officer indicated he did not search the defendant, but merely patted him
down for weapons, he admitted removing the defendant’s cell phone from
his pocket.

   Defense counsel argued there was no reasonable suspicion to detain
the defendant. Alternatively, he argued that even if reasonable suspicion
existed to detain the defendant, there was no reasonable suspicion the

1   Terry v. Ohio, 392 U.S. 1 (1968).

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defendant was armed. The officer’s removal of the defendant’s phone
exceeded a pat-down and became an illegal search.

    The trial court denied the motion to suppress. The court found: “The
officer actually stopped because the defendant was standing in the middle
of the road. In fact, it could be said that it was the defendant who stopped
the officer. The officer testified that he stopped his vehicle because the
defendant was standing in the middle of the road.” The court found that
under section 316.130, Florida Statutes, the officer could have stopped
the defendant for that fact alone.

     The court noted the officer was responding to a BOLO, the defendant
fit the limited description given, was sweating profusely, out of breath, and
located a short distance from the abandoned vehicle. “[G]iven the totality
of the circumstances, the court cannot find that the initial stop of the
defendant was unreasonable or unlawful.” Lastly, the court found “the
exclusionary rule should not be applied to any evidence under the unique
facts and circumstances of this case.”

   After accepting a negotiated plea, the court adjudicated the defendant
guilty, and sentenced him to eighteen months’ imprisonment with 423
days’ jail credit, to be followed by two years of drug offender probation on
counts I, III, and IV, and to 365 days in jail with 423 days’ jail credit on
Count V. All sentences were to run concurrently. From his convictions
and sentences, the defendant now appeals.

   The defendant argues his detention was illegal as was the search and
seizure of his property. He argues that he was already in custody without
probable cause when the methamphetamine was found under his foot.
Alternatively, he argues the search was not justified under Terry since
there was no proof that he had committed a crime.

    The State responds that the officer had a well-founded, articulable
suspicion of criminal activity to detain the defendant based on the totality
of the circumstances.      It asserts that temporarily handcuffing the
defendant was reasonable under the circumstances because the officer
was waiting on back-up and was concerned the defendant might flee. The
State argues it was reasonable to search the defendant based on the bulge
in his pocket and his prior actions. The officer could also have been
concerned about the second person in the abandoned vehicle, who was
still at large.

   “Motions to suppress present mixed questions of law and fact, and
generally come clothed with a presumption of correctness.      Facts

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supported by competent, substantial evidence are accepted as true, but
we review legal issues de novo.” Lindo v. State, 983 So. 2d 672, 675 (Fla.
4th DCA 2008) (internal citations omitted).2

   The first level of a police-citizen encounter is a “consensual encounter
and involves only minimal police contact.” Popple v. State, 626 So. 2d 185,
186 (Fla. 1993). Here, the officer’s initial approach and conversation with
the defendant was just that, a consensual encounter. The officer simply
asked his name and if he knew anything about the abandoned vehicle.

   But, the level of encounter changed when the officer returned from
speaking with the resident, handcuffed the defendant, and began a pat-
down leading to a search of his person. The question then becomes
whether the officer had reasonable suspicion to detain the defendant, and
to conduct not only a pat-down, but a search. The answer is no.

   “To conduct an investigatory stop, a police officer must have ‘a well-
founded, articulable suspicion of criminal activity. Mere suspicion is not
enough to support a stop.’” Gaines v. State, 155 So. 3d 1264, 1268 (Fla.
4th DCA 2015) (quoting Popple, 626 So. 2d at 186). Here, the only
description given to the officer of the two people in the car was race and
gender. No other physical description, height, weight, hair, age, not even
clothing, was given. The officer came upon the defendant three-hundred
yards away from the abandoned vehicle as he stood in the street
conversing with a resident.

   The officer testified the defendant was sweating profusely and out of
breath, but admitted that it was warm that day. The defendant explained
that he was walking home from a park approximately one mile to one-and-
a-half miles away. When the officer spoke with the resident, she advised
that she did not know the defendant, but gave no other indication that the
defendant had done anything wrong.

   The trial court found the officer had probable cause that the defendant
had violated section 316.130, Florida Statutes, which gave him cause to
stop and detain him. However, none of the applicable subsections apply.
Subsection (3) prohibits pedestrians from walking along or on a roadway
where there are sidewalks. § 316.130(3), Fla. Stat. (2014). There was no
testimony concerning sidewalks. Subsection (4) requires pedestrians to

2The State argues the defendant failed to preserve his right to appeal the order
on the motion to suppress because the trial court failed to find the motion
dispositive. We disagree. See Aikens v. State, 80 So. 3d 1121, 1122–23 (Fla. 4th
DCA 2012); J.J.V. v. State, 17 So. 3d 881, 883 (Fla. 4th DCA 2009).

                                       5
walk along the shoulder when there are no sidewalks. Id. § 316.130(4).
Once again, there was no evidence that sidewalks existed.

   Subsection (5) prohibits a person from standing in the portion of a
roadway paved for vehicular traffic, but only if it is for the “purpose of
soliciting a ride, employment, or business from the occupant of any
vehicle.” Id. § 316.130(5). There was no testimony that the defendant was
soliciting anyone for anything. And, subsection (6) prohibits a person from
standing on or near a street “for the purpose of soliciting the watching or
guarding of any vehicle while parked or about to be parked.” Id. §
316.130(6). But, there was no testimony that the defendant was watching
or guarding a vehicle.

   Further, “violation of this section is a noncriminal traffic infraction.”
Id. § 316.130(19). This would have allowed the officer to stop the
defendant to write him a citation, but nothing else. In short, the officer
did not have reasonable suspicion to detain and handcuff the defendant.

   “Courts have generally upheld the use of handcuffs in the context of a
Terry stop where it was reasonably necessary to protect the officers’ safety
or to thwart a suspect’s attempt to flee.” Reynolds v. State, 592 So. 2d
1082, 1084 (Fla. 1992) (emphasis added). The problem here is that there
was neither an indication that the defendant was attempting to flee nor
that he was armed.

    What the officer had was a hunch the defendant may have come from
the abandoned vehicle, but he had no meaningful description of anyone,
the defendant did nothing unusual except sweat, and the defendant
obeyed the officer’s directive to remain in place while the officer talked to
the resident. The defendant gave the officer no reason to suspect he would
flee and no reason to suspect he was armed or dangerous.

    The officer simply had no reasonable suspicion to detain the defendant.
Placing the defendant in handcuffs constituted an unlawful stop, which
was then compounded by the officer’s unlawful search. While handcuffed,
the officer patted the defendant down. Finding nothing that suggested a
weapon, the officer reached into the defendant’s pocket and removed his
cell phone and cigarette paper.

   “Case law consistently holds that an officer must have a reasonable
belief that their safety is in danger, and, if so, must limit their contact to
performing only a pat-down search.” G.M. v. State, 172 So. 3d 963, 966
(Fla. 4th DCA 2015). The officer exceeded the permissible scope of a pat-
down even if he had reasonable suspicion, which he did not. Melendez v.

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Sheriff of Palm Beach Cnty., 743 So. 2d 1145 (Fla. 4th DCA 1999) (holding
continued handcuffing of the defendant was unauthorized where law
enforcement found no weapons when searching the defendant, there was
no suspicion of flight, and the defendant was cooperative).

   This means the trial court should have excluded the methamphetamine
found after the officer handcuffed and searched the defendant. Williams
v. State, 993 So. 2d 1179, 1182 (Fla. 4th DCA 2008) (“Appellant’s
attempted disposal of the marijuana and the discovery of the
methamphetamine followed the illegal seizure, so they must be suppressed
as the fruits of the poisonous tree.”).

   Because the detention, the pat-down, and the search were unlawful,
the court erred in denying the motion to suppress. We therefore reverse
the order denying the motion to suppress and remand the case to the trial
court to vacate the defendant’s plea.

   Reversed and Remanded.

WARNER, J., and GILLEN, JEFFREY DANA, Associate Judge, concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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