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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



FRANK MOORE, JR.,                             )
                                              )
              Appellant,                      )
                                              )
v.                                            )          Case No. 2D15-3084
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed October 5, 2016.

Appeal from the Circuit Court for Pinellas
County; Cynthia J. Newton, Judge.

Howard L. Dimmig, II, Public Defender, and
Amanda V. Isaacs, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Donna S. Koch, Assistant
Attorney General, Tampa, for Appellee.


WALLACE, Judge.

              Frank Moore, Jr., appeals his judgment and sentences for possession of

cocaine and possession of paraphernalia that were entered following his no contest

plea in which he reserved the right to appeal the trial court's dispositive ruling denying

his motion to suppress. Because the seizure of the contraband and related inculpatory
statements sought to be suppressed occurred during the unauthorized detention of Mr.

Moore for the issuance of a trespass warning, we reverse.

            I. THE FACTUAL BACKGROUND AND PROCEDURAL HISTORY

              Deputy Nicholas Hammack of the Pinellas County Sheriff's Department

encountered Mr. Moore at a coin laundry and convenience store in Safety Harbor on

October 31, 2014. Deputy Hammack spoke with Mr. Moore. During this initial

encounter, the store owner approached Deputy Hammack and asked him to issue a

trespass warning to Mr. Moore because Mr. Moore had been loitering on the store

premises for some time that day. Deputy Hammack asked Mr. Moore to step to the

front of the deputy's patrol car so that he could issue the written trespass warning.

Deputy Hammack informed Mr. Moore that he would be "issued a trespass and that he

needed to walk to the front of [the deputy's] vehicle." Mr. Moore hesitated and asked

Deputy Hammack why the trespass warning was going to be issued. Deputy Hammack

responded "that it was the property owner's right to trespass him from his property and

that he didn't have a choice in the matter, and that this was something that we needed

to complete so that he could be on his way."

              After Deputy Hammack began the process of issuing a written trespass

warning to Mr. Moore, he developed probable cause to believe that Mr. Moore was in

possession of cocaine. Upon searching Mr. Moore, Deputy Hammack discovered a

glass pipe containing a significant amount of cocaine residue and two razor blades with

cocaine residue. Mr. Moore's arrest for possession of cocaine and paraphernalia

followed.




                                           -2-
              After he was formally charged, Mr. Moore filed a motion to suppress the

tangible evidence found on his person and the inculpatory statements that he had made

to Deputy Hammack. Mr. Moore argued that the contraband and his statements should

be suppressed because the contraband was discovered and his statements were made

after Deputy Hammack had illegally detained him to issue the written trespass warning.

              The trial court conducted an evidentiary hearing on the motion. Notably,

when defense counsel asked Deputy Hammack if he had detained Mr. Moore for the

purpose of issuing the written trespass warning, the deputy responded that he had.

Nevertheless, at the conclusion of the hearing, the trial court ruled that Deputy

Hammack's encounter with Mr. Moore was consensual until the point at which the

deputy had developed probable cause for a search. Accordingly, the trial court denied

the motion to suppress. Mr. Moore subsequently entered a no contest plea to

possession of cocaine and possession of paraphernalia while reserving his right to seek

appellate review of the trial court's denial of his dispositive motion to suppress. This

appeal followed.

                               II. THE APPLICABLE LAW

              On review of the denial of a motion to suppress, we defer to the trial

court's factual findings that are supported by competent, substantial evidence and we

review the trial court's application of the law to the facts de novo. Villanueva v. State,

189 So. 3d 982, 984-85 (Fla. 2d DCA 2016). Section 810.09(1)(a), Florida Statutes

(2014), provides in pertinent part that "[a] person who, without being authorized,

licensed, or invited, willfully enters upon or remains in any property other than a

structure or conveyance . . . [a]s to which notice against entering or remaining is given .



                                            -3-
. . commits the offense of trespass on property other than a structure or conveyance."

Thus section 810.09(1)(a) "requires that notice be given before a person can be guilty of

trespassing on property other than a structure or conveyance." S.N.J. v. State, 17 So.

3d 1258, 1259 (Fla. 2d DCA 2009). Moreover, "a police officer—under the trespass

statute—may issue a trespass warning for unauthorized entrance into a structure, but

does not have the legal authority to conduct an investigatory stop or arrest for trespass

unless the owner or his agent first warned the potential trespasser." Gestewitz v. State,

34 So. 3d 832, 834 (Fla. 4th DCA 2010). Although a stop for the purpose of issuing an

individual a trespass warning is considered to be a consensual encounter, Rodriguez v.

State, 29 So. 3d 310, 311 (Fla. 2d DCA 2009), an officer may not detain an individual

for the purposes of issuing a written trespass warning absent a reasonable suspicion

that the individual has committed or is about to commit a crime, Gestewitz, 34 So. 3d at

834-35. Instead, the officer may issue a verbal warning, or he may issue a written

warning if the individual voluntarily decides to remain in order to receive a written

warning. Id. at 835.

                                     III. DISCUSSION

              In this case, the trial court correctly observed that its ruling hinged upon

whether Deputy Hammack had detained Mr. Moore to give him the written trespass

warning or whether the encounter was consensual. However, we disagree with the trial

court's conclusion that the encounter remained consensual after the deputy ordered Mr.

Moore to the front of his vehicle for the purpose of issuing a written trespass warning

and telling him that he had no choice in the matter. See id. (observing that officers

illegally detained a defendant when they told him that he was not free to leave until they



                                            -4-
processed his trespass warning); see also Rios v. State, 975 So. 2d 488, 490 (Fla. 2d

DCA 2007) ("[A] 'citizen encounter becomes an investigatory . . . stop[ ] once an officer

shows authority in a manner that restrains the defendant's freedom of movement such

that a reasonable person would feel compelled to comply.' " (all alterations except first

in original) (quoting Parsons v. State, 825 So. 2d 406, 408 (Fla. 2d DCA 2002))).

Deputy Hammack made statements constituting a show of authority that—considered in

combination—would have caused a reasonable person to feel compelled to comply.

First, Deputy Hammack directed Mr. Moore to go to the front of the patrol car while the

deputy issued the written trespass warning. Second, Deputy Hammack told Mr. Moore

that he had no choice in the matter. Third, Deputy Hammack effectively advised Mr.

Moore that he could not "be on his way" until the trespass warning was issued. It

follows that Deputy Hammack detained Mr. Moore and that detention was illegal.

Therefore, the trial court should have suppressed the tangible evidence discovered and

the inculpatory statements made by Mr. Moore after his illegal detention.

                                   IV. CONCLUSION

             For the foregoing reasons, we reverse the judgment and sentences

imposed on Mr. Moore and remand with instructions that he be discharged.

             Reversed and remanded for discharge.



BLACK, J., Concurs.
VILLANTI, C.J., Dissents with opinion.




                                           -5-
VILLANTI, Chief Judge, Dissenting.

              Because my reading of the record and applicable case law leads to a

conclusion that the officer's actions were proper, I respectfully dissent.

              To my reading of the testimony at the hearing, which comports with the

trial court's factual findings, Officer Hammack approached Moore and his female

companion while they were standing outside a laundromat. Hammack recognized the

female as someone known to him to be on felony probation, so he decided to run a

wants and warrants check on her. While he was doing so, the owner of the laundromat

approached Hammack and advised that while the female had a reason to be there,

Moore did not and that he wanted Moore trespassed. After Hammack finished with the

female, he turned to Moore, told him that the owner of the laundromat wanted him

trespassed, and asked him to step to the front of Hammack's car so the written trespass

notice could be completed and provided. Moore questioned why the trespass notice

was going to be given, and Hammack advised him "that it was the property owner's right

to trespass him from his property and that he didn't have a choice in the matter."

Hammack then began to complete the trespass notice. While doing so, he asked if

Moore had any weapons or drugs on him, and Moore responded by starting to reach

into his pocket. At that point, Hammack grabbed Moore's hand, concerned for his own

safety. Moore then admitted that he had cocaine in his pocket.

              The majority concludes that Hammack "detained" Moore when he asked

him to step to the front of the patrol car so that Hammack could complete the trespass

notice. I disagree. At that point, Hammack and Moore were engaged in a consensual

encounter—not a detention. Admittedly, when a property owner asks an officer to issue



                                            -6-
a trespass warning to an individual, the officer cannot complete this task without

"stopping" the individual sought to be trespassed and requesting that that individual stay

to receive the trespass warning. However, that stop is a consensual encounter,

Rodriguez v. State, 29 So. 3d 310, 311 (Fla. 2d DCA 2009), that does not become an

unauthorized detention under the Fourth Amendment unless the officer "hinder[s] or

restrict[s] the person's freedom to leave or freedom to refuse to answer inquiries,"

Popple v. State, 626 So. 2d 185, 187 (Fla. 1993); see also A.L. v. State, 133 So. 3d

1239, 1241 (Fla. 4th DCA 2014) ("A consensual encounter becomes a Terry stop 'when

an officer makes an official show of authority from which a reasonable person would

conclude that he or she is not free to end the encounter and depart.' " (quoting Smith v.

State, 95 So. 3d 966, 968 (Fla. 1st DCA 2012))). As with any consensual encounter,

the officer is not obligated to inform the person that he or she is free to leave. The

officer is free to go about his or her business of writing the notice but may not detain the

individual if he or she likewise wants to go about his or her business.

              Here, Hammack took no steps to hinder or restrict Moore's freedom to

leave, nor did Hammack order Moore to answer inquiries. Hammack did not refuse a

request from Moore to leave, nor did he block Moore's path or otherwise take any action

that would convert this consensual encounter into an unauthorized detention. In light of

this, I cannot agree with the majority's broad assertion that an officer may not stop an

individual to issue a written trespass warning unless "the individual has committed or is

about to commit a crime." In my view, the officer may "stop" the individual. What he

may not do is "detain" the individual.




                                            -7-
              As support for its position, the majority cites to the case of Gestewitz. But

the detention in Gestewitz was unauthorized because Gestewitz attempted to end the

consensual encounter with the officers, at which point they specifically told him that he

was not free to leave until after the written warning was issued—thus converting the

consensual encounter into a detention. 32 So. 3d at 834-35. Here, Moore made no

such attempt to depart and so there was no effort to end a consensual encounter that

was thwarted by the officer.

              Furthermore, the trial court made no findings to support the majority's

statement that "a show of authority" took place, and I do not agree with the majority's

interpretation of the record to mean that Hammack told Moore that he had no choice

about whether to stay and wait for the written trespass notice to be written. In context, I

believe—as the trial court apparently did—that Hammack's "no choice" statement

referred to Moore having no choice about whether the owner could have the trespass

notice issued. I would defer—as we are bound to do—to the trial court's findings of fact

concerning the meaning of Hammack's statement given that the trial court was present

for the testimony and had the opportunity to hear the statement in its full context.

              Moreover, even though Hammack testified he "detained" Moore, this was

simply his honest opinion that a lawful detention in the performance of his duties

occurred, not that an unauthorized detention occurred. And Hammack's opinion about

whether or not Moore was detained—when that opinion was never tested by any action

by Moore—is not dispositive of the issue. Cf. Whren v. United States, 517 U.S. 806,

813 (1996) (holding that the police officer's "[s]ubjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis"). However, once Moore



                                             -8-
attempted to reach in his pocket after Hammack asked whether he had drugs or

weapons on his person, concerns for officer safety independently authorized a further

detention.

              Thus, because Moore made no attempt whatsoever to leave and because

there was no argument below that his free will was not available for him to do so, I

would affirm the trial court's denial of his motion to suppress.




                                            -9-
