                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                    NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-335

RICKY ALPHONSO RAND,

      Appellee.

_____________________________/

Opinion filed February 10, 2017.

An appeal from the Circuit Court for Duval County.
Angela Cox, Judge.

Pamela Jo Bondi, Attorney General, Matthew Pavese, Assistant Attorney General,
for Appellant.

Janet E. Johnson and Andrew B. Greenlee of Andrew B. Greenlee, P.A., Tallahassee,
for Appellee.


                       ON MOTION FOR REHEARING

OSTERHAUS, J.

      Ricky Rand seeks rehearing on the basis that we incorrectly relied on

objected-to, hearsay testimony of a police officer in reversing the trial court’s

decision to suppress evidence in his case. We agree and grant his motion for

rehearing, vacate the previous panel opinion, and replace it with this opinion
affirming the trial court’s decision.

                                           I.

      A Duval County middle school invited the public to use its campus track

anytime except for during school hours. It posted signs on the fence saying as much

in all capital letters. And it left the gate open to the public at night. When, late one

night in March 2014, Mr. Rand began exercising at the track, a school district law

enforcement officer saw him and immediately arrested him for trespassing at the

track. During the post-arrest search of Mr. Rand’s pockets, the officer found a

handgun. The State then charged Mr. Rand for crimes related to carrying the firearm.

      The officer didn’t know the school’s open-track policy when he arrested Mr.

Rand. He disregarded the signs on the track’s fence authorizing public use of the

track after 4 p.m. and before 7 a.m. And he had not before noticed that the school

kept the gate open at the track all night long. Mr. Rand moved to suppress the gun

evidence, arguing that he wasn’t trespassing and that the school board officer lacked

probable cause to arrest him. At the suppression hearing, the State made three

substantial concessions. The State conceded first that Mr. Rand wasn’t trespassing,

but that the signs on the track’s fence invited and authorized public use of the track

at night. The State next conceded that Mr. Rand wasn’t doing anything wrong at the

track, but was “in actuality, and in retrospect, . . . walking the track.” Finally, the

officer conceded that he’d arrested Mr. Rand immediately without any investigation.

                                           2
The officer handcuffed Mr. Rand even as he attempted to explain his legitimate

reason for being at the track, and even though the signs inviting public access hung

on the fence just feet from where the officer arrested Mr. Rand.

      In spite of its various concessions, the State argued under Heien v. North

Carolina, 135 S. Ct. 530 (2014), that probable cause remained to arrest and search

Mr. Rand because the officer had made a reasonable mistake about the school’s track

access policy. Heien excuses “objectively reasonable” legal mistakes by officers that

lead to an arrest. But the trial court rejected the State’s argument. While the trial

court accepted that the officer didn’t know the track policy, it nevertheless faulted

the officer’s ignorance of the obvious posted policy: “There was absolutely no

investigation done to determine whether or not the defendant had a lawful reason to

be on the property.” The trial court concluded that there was “no competent and

substantial evidence [supporting] the arrest.”

      We now affirm because the law and evidence support the trial court’s

decision. Although probable cause can exist notwithstanding a “reasonable” mistake

of law, the school officer’s ignorance and disregard of the school’s posted

trespassing policy wasn’t objectively reasonable under these circumstances, where:

(1) the school hung conspicuous signs on the fence inviting the public to use its track

at night; (2) the school left the gate at the track open at night while locking down

access to other parts of the campus; (3) other school officers knew the open-track

                                          3
policy and had confirmed it personally to Mr. Rand; and (4) the evidence indicated

that the public used the track after school hours. A reasonable person would not have

mistaken the policy, nor believed that a crime was being committed. The school

district officer, no different than other officers, must pay attention to the laws he is

responsible for enforcing. And “an officer can gain no Fourth Amendment advantage

through a sloppy study of the laws he is duty-bound to enforce.” Heien, 135 S. Ct.

at 539-40.

                                          II.

                                          A.

      A trial court’s ruling on a motion to suppress evidence presents a mixed

question of law and fact. Conner v. State, 803 So. 2d 598, 608 (Fla. 2001); Robinson

v. State, 885 So. 2d 951, 953 (Fla. 1st DCA 2004). The standard of review for factual

findings is whether competent, substantial evidence supports the trial court’s

findings. State v. Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008). We review

interpretations of law de novo. Id.; Ornelas v. United States, 517 U.S. 690, 697

(1996). On appeal, a motion to suppress reaches the appellate court “clothed with

the presumption of correctness.” McNamara v. State, 357 So. 2d 410, 412 (Fla.

1978). The court must review all evidence and make reasonable inferences and

deductions from mixed evidence “in a manner most favorable to sustaining [a trial

court’s] ruling.” Van Teamer v. State, 108 So. 3d 664, 666 (Fla. 1st DCA 2013)

                                           4
(quoting State v. Gandy, 766 So. 2d 1234, 1235–36 (Fla. 1st DCA 2000)).

      The Florida Constitution further requires that we resolve search and seizure

issues “under the requirements of the Federal Constitution, as interpreted by the

United States Supreme Court.” Young, 974 So. 2d at 608 (citing Art. I, § 12, Fla.

Const.; State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995)). Arrests are the most

intrusive of Fourth Amendment seizures and require probable cause. An officer has

probable cause if “the totality of the facts known to the officer at the time would

cause a reasonable person to believe that an offense has been committed.” Van

Teamer, 108 So. 3d at 666 (quotation omitted). This standard doesn’t foreclose law

enforcement officers from approaching and asking questions of suspected

trespassers. But it does preclude an officer from immediately arresting and searching

individuals in the absence of “specific and articulable facts” indicative of a

crime. See Terry v. Ohio, 392 U.S. 1, 27 (1968). The court-fashioned “exclusionary

rule” requires suppressing evidence that is seized when officers arrest someone

without a warrant or probable cause, which is a means of deterring Fourth

Amendment violations by government officials who carry out unlawful searches and

seizures. See Mapp v. Ohio, 367 U.S. 643 (1961); Arizona v. Evans, 514 U.S. 1

(1995).

                                         B.

      A district school board officer arrested Ricky Rand while he exercised at night

                                         5
at the school track just a block from his house. As the officer drove by the school

track, he noticed “a black male and dark clothing” across a “very poorly lit” field at

the other end of the track. After shining a light on Mr. Rand, Mr. Rand walked over

to the police car, where the officer immediately arrested him for being at the track.

      But Mr. Rand did not violate any law or school policy by using the school

track at night. State trespassing laws gives substantial leeway to schools to invite

people onto their campuses. And Mr. Rand did not act unlawfully by accepting the

school’s invitation to use its track. See § 810.097(1)(a), Fla. Stat. (defining unlawful

trespassing on campus as lacking “legitimate business on the campus or any other

authorization, license, or invitation to enter or remain upon the school property”). In

fact, the school kept the track open at night and posted signs inviting the public to

access the track after school hours. Mr. Rand also had a legitimate reason for being

there; he was walking the track. The State conceded during the hearing that it was

“not disputing the fact that Mr. Rand . . . was walking the track.” This came after the

officer had already agreed that no evidence supported the arrest except for his

initially seeing Mr. Rand off the track: “all the evidence was consistent with Mr.

Rand being there to walk the track, other than . . . his location [when the officer] first

saw him.”

      For the State’s part, it conceded below that the officer made a legal mistake.

It acknowledged that the signs on the fence “admittedly would give someone license

                                            6
to use the track during those hours.” The school officer testified that he’d patrolled

the school for years and was “very familiar with this property,” but he’d never

noticed the signs inviting public to use the track before. The officer admitted that the

signs were “essentially an invitation to the public to enter that track on hours that do

not conflict with [school].” 1 The officer, however, had failed to read the signs on the

fence, or investigate why Mr. Rand was there before arresting him. 2

        In addition to its concessions about the school’s invitation to use the track,

Mr. Rand’s exercise, and the lack of an investigation, the State acknowledged that

the school left a track-access gate open at night. The open gate gave the public easy

access to the track. In Mr. Rand’s case, for instance, he testified to simply walking

down the sidewalk from his house and entering the open gate about 60 feet away

from the track surface itself. But only after Mr. Rand’s arrest, did the officer bother




1
  Contrary to the claim in the dissenting opinion, there was no evidence that the
school posted “No Trespassing” signs anywhere on campus, much less near the
track. The only signs posted on the fence were the signs that restricted access during
school hours, between 7 a.m. and 4 p.m. At one point, defense counsel referred to
these signs as “trespassing signs,” but they did not restrict Mr. Rand’s use of the
track at night, just as the State admitted at the suppression hearing.
2
    The hearing transcript includes the following questions and answers:
        Defense counsel: “You, upon making contact with [Mr. Rand], take him into
        custody for trespassing without incident, correct?”
        Officer: “Yes, ma’am.”
        Defense counsel: “With no investigation, correct?”
        Officer: “Correct.”
                                             7
to confirm that Mr. Rand had entered an open gate at the track. 3 And it wasn’t an

anomaly. Pictures and testimony in the record demonstrate that the gates were

routinely left open. There were pictures of open gates in the record, taken both during

the day and at night, next to signs inviting after hours track use. Mr. Rand wasn’t the

only one using the track after school hours; other pictures in the record showed

unidentified adults using the track. Other school district officers confirmed to Mr.

Rand “that as long as . . . the gate is unlocked then the public can have access to it.”

And one social media picture posting in the record showed Mr. Rand and his fiancé

exercising at night at the track on a different date preceding his arrest. 4

      In sum, the evidence supports what the State conceded at the hearing. Mr.

Rand had been invited by the school to use the track at night and had a legitimate

reason for being there. He was not trespassing. Mr. Rand’s arrest stemmed not from

any wrongdoing, but from an officer’s mistake about the trespassing policy and his



3
  In contrast, the officer testified that the school locked other gates on the property
and, in particular, blocked access to the classroom area of campus from the track.
4
  Mr. Rand and his fiancé worked irregular hours in their respective jobs; he as a taxi
driver and she as a night manager at Whataburger. Mr. Rand often documented his
workouts with pictures and Facebook postings updating his miles, times, and other
details of “getting the miles in,” which are part of the record. Walking the track
wasn’t a new thing for Mr. Rand. He’d exercised at school district tracks without
incident for about a year before his arrest after recommitting himself to getting back
in shape. He’d lost weight, from 193 pounds down to 168. And in one notable entry
made almost a year before his arrest, Mr. Rand posted that “[t]he track at the
highschool close to the public 7am,” which mirrors the time posted on the fence at
the school track in this case.
                                              8
failure to investigate. The officer disregarded signs inviting the public to use the

track and was unfamiliar with the school’s practice of leaving the track gate open to

the public, even while his school officer colleagues knew and had encouraged Mr.

Rand’s track usage.

                                         C.

      Upon conceding at the hearing that Mr. Rand had a legitimate purpose,

license, and an invitation to walk on the campus track at night, the State’s argument

turned to the United States Supreme Court’s decision in Heien v. North Carolina. It

argued that the officer’s mistaken, but “good faith understanding that anyone on the

property at that point was trespassing,” gave him probable cause to arrest and search

Mr. Rand for being at the track: “More than two centuries ago, this Court held that

reasonable mistakes of law . . . could justify a certificate of probable cause.” It is

true that Heien stands for the proposition that officers’ mistakes about the law don’t

necessarily negate probable cause. Rather, the Fourth Amendment tolerates mistakes

and preserves probable cause if “those mistakes—whether of fact or of law—[are]

objectively reasonable.” Heien, 135 S. Ct. at 539. In Heien, a North Carolina police

officer mistakenly stopped a motor vehicle for a non-working brake light.

Unbeknownst to the officer, North Carolina law did not prohibit driving with one

non-functioning brake light. During the stop, the officer sought and received

permission to search the car and found cocaine. After his arrest, Mr. Heien moved

                                          9
to suppress the drug evidence, arguing that the officer lacked a valid reason for

stopping his car. The Court concluded that an “objectively reasonable” mistake of

law could justify a suspicion of illegal conduct and avoid application of the

exclusionary rule. Id. at 539-40. In Mr. Heien’s case, the Court found that the officer

had made a reasonable mistake of law because the text of the North Carolina law

gave mixed messages about whether all vehicle brake lights had to be functional.

The Court found “little difficulty” finding reasonable suspicion in spite of the

officer’s mistake and did not suppress the drug evidence. Id. at 540. “[B]ecause the

mistake of law was reasonable, there was reasonable suspicion justifying the

stop.” Id.

      But this case is different from Heien. Whereas Heien involved an ambiguous

law, the officer in this case disregarded a conspicuous school policy posted right on

the fence at the track, including right next to the open gate. These signs confirmed

that the school had invited the public to access the track. Even though the signs hung

just steps from where the officer arrested Mr. Rand, the officer completely

disregarded them and failed to investigate whether Mr. Rand’s had a legitimate

reason for being at the track. Furthermore, the evidence reflects that other officers

had no problem understanding and enforcing the correct policy, which they

personally confirmed to Mr. Rand. Here, unlike Heien, the officer’s excuse wasn’t

that he misunderstood the legal standard, but that he hadn’t paid attention to it. Under

                                          10
these different circumstances from Heien, an objectively reasonable person would

not have mistaken the posted policy, misunderstood it, or believed that the school

prohibited public access to the track.

      We put little stock in the officer’s claimed confusion about the policy

stemming from a conversation with the school’s principal, who allegedly once told

him that “she wants nobody on campus after hours and nobody should be on campus

after hours.” Mr. Rand objected to the hearsay testimony about this conversation and

we cannot fault the trial court for discounting it. No school administrator appeared

at the hearing to confirm that the school maintained a closed-after-4 p.m. campus

policy. More importantly, the officer himself admitted that he didn’t enforce the

“nobody on campus” policy ascribed to the principal. Rather, the officer testified to

following a different district policy and training that allowed for individuals on

campus after hours if they had a legitimate purpose, or were invited to be there. The

hearsay evidence doesn’t support the conclusion that the officer’s mistake arose

from confusion about a “nobody-on-campus” policy that nobody enforced. 5 What is

more, the circumstance-specific trespassing policy that the officer identified as the



5
  The trial court may also have discounted the principal’s purported policy because
4 p.m. is a very early hour to lock down a middle school campus. Lots happens on a
typical school campus after school hours—teachers grade papers until late in the
afternoon, students attend athletic, arts, and club events, parents pick up their
students, PTA and other meetings take place, etc. And it simply isn’t credible that
the principal wanted the officer to arrest the people he found on campus after school.
                                            11
district policy tends to support the trial court’s final decision to suppress the evidence

because the officer didn’t investigate Mr. Rand’s situation. The officer’s own

training dictated that he should have determined whether Mr. Rand had an invitation

and legitimate reason for being at the track before arresting him for trespassing.

      The dissent makes much of the fact that the arrest took place in the middle of

the night. But the fact that it was nighttime did not give the officer probable cause

to arrest Mr. Rand. The track was open at night, just like many government facilities

are open at night—post office lobbies, interstate rest areas, university event venues,

campgrounds, parks, and the like. Officers patrolling these places—like the school

district officer here—must know basic open-close policies before simply arresting

people for being there. People don’t forfeit Fourth Amendment rights by accepting

late-hour invitations onto government property.

      The dissent also suggests that the officer’s mistake should be excused because

he would have inevitably retrieved the gun from Mr. Rand’s pockets anyway. But

the State never made this inevitability argument below. See Harell v. State, 894 So.

2d 935, 940 (Fla. 2005) (holding that Florida law requires a party to timely raise an

issue with a trial court before it may be properly preserved for appellate review).

And, furthermore, there is no evidence that the officer would have retrieved the gun

from Mr. Rand in the absence of arresting him. The officer did not testify about

needing to pat down Mr. Rand for safety reasons. Indeed, the officer suggested that

                                           12
he wouldn’t have patted Mr. Rand down at the track absent the trespassing:

      Had I not had the suspicion I had about the crime . . . had I seen him on
      the track, it would have been a simple, you know, could have been as
      simple as just walking up to him and talking to him about what he was
      doing out there and running his name.

The officer also acknowledged that Mr. Rand “did not threaten [him] or oppose

[him] in any way,” which doesn’t support the dissent’s speculations that the officer

would have found the gun if he’d decided to simply talk with Mr. Rand instead of

arresting him. The issue here is not whether the officer had reasonable cause for

a Terry stop; this issue was neither raised below or on appeal. Hypothetically, the

officer certainly could have chosen the different strategy of simply talking with Mr.

Rand, and patting him down if the officer feared for his safety (the trial court

acknowledged that it would have been fine to do so). But the officer didn’t choose

this alternate course of action, or indicate the need to pat down Mr. Rand. It is not

for the appellate court to roam into matters not previously raised. Whether the

weapon might have been discovered via a Terry stop is a factual issue that wasn’t

developed below. And we aren’t in a position to postulate about unpreserved,

hypothetical matters now.

      The bottom line here is that the officer disregarded the school’s open-track

policy. He said he “didn’t take the time to look at the sign right in front of the gate”

and he didn’t investigate Mr. Rand’s reasons for being at the track. Under these

circumstances, we find no error in the trial court’s decision not to give the officer’s
                                          13
sloppy work a Fourth Amendment pass.



                                        III.

      The law and evidence support the trial court’s decision to apply the

exclusionary rule. The trial court’s order granting Mr. Rand’s motion to suppress is

AFFIRMED.

JAY, J., CONCURS; KELSEY, J., DISSENTS WITH OPINION.



KELSEY, J., dissenting.

      Appellee, Defendant below, was caught carrying a loaded gun on the grounds

of a Jacksonville middle school at 2:00 in the morning. He was a convicted felon,

and therefore did not have the legal right to carry the gun. Duval County School

Police Officer R.A. Jackson arrested Defendant for trespassing, searched Defendant

incident to arrest, and found the gun. Defendant moved to suppress evidence of the

gun, arguing that the search violated his Fourth Amendment rights against an

unreasonable search. The trial judge found that Officer Jackson was credible in

believing that Defendant was trespassing and had reasonable belief to detain

Defendant. The trial judge nevertheless granted Defendant’s motion to suppress on

the grounds that Officer Jackson did not conduct an adequate investigation before

arresting Defendant.

                                        14
      We previously rendered a decision reversing the trial court’s order granting

Defendant’s motion to suppress. State v. Rand, 41 Fla. L. Weekly D842, 2016 WL

1295081 (Fla. 1st DCA Apr. 4, 2016). Defendant moved for rehearing and rehearing

en banc (the latter motion having now been denied). The Court ordered both parties

to file supplemental memoranda on the applicable standards of review, and they did

so. By that time, the judge who had concurred in the original opinion had retired

from the Court, and the judge newly assigned to the panel voted to concur with the

original dissenter’s position, thus generating the present majority opinion affirming

the trial court, from which I respectfully dissent.

The Suppression Order.

      The trial judge entered a form order granting Defendant’s motion to suppress

evidence of the gun he was found illegally carrying, after stating on the record the

reasons for entry of the suppression order, as follows:

      THE COURT: Okay. I took the time during my lunch break to read all
      of the cases that provided by the Defense, which is an inch thick and
      then I read, of course, the cases provided by the State. It is of the Court’s
      belief and finding that the officer was credible in that he did believe
      that the defendant was trespassing, however had any investigation been
      done, there may have been a different outcome in this case. There was
      absolutely no investigation done to determine whether or not the
      defendant had a lawful reason to be on the property, all be it at 2:00
      a.m. And that’s a reasonable belief that he may have been doing
      something unlawful, but there was no investigation and had there been
      an investigation, it could have been different outcome. Therefore, I find
      that there was a reasonable belief to detain the defendant, but there was
      no probable cause for arrest, so the motion to suppress is denied, given

                                           15
      all the evidence in this case from both the State and the -- the motion to
      suppress is granted, given all the evidence presented by both sides.

(Emphasis added.)

      To summarize: the trial judge found that Officer Jackson was credible,

specifically that he was credible in believing that Defendant was trespassing. The

trial judge also found that Officer Jackson had a reasonable belief that Defendant

was doing something unlawful, and found that Officer Jackson had a reasonable

belief to detain Defendant. The trial judge nevertheless concluded there was no

probable cause to arrest Defendant, because Officer Jackson did not conduct an

adequate investigation as to whether Defendant was lawfully on school grounds at

2:00 a.m.

Standards of Review.

      (1) Presumption of Correctness.

      All trial court orders come to this Court with a presumption of

correctness. McNamara v. State, 357 So. 2d 410, 412 (Fla. 1978). This threshold

presumption of correctness applies to a trial court’s ruling on a motion to suppress

as well. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (“[A] trial court’s ruling on

a motion to suppress comes to the appellate court clothed with a presumption of

correctness . . . .”); State v. Gandy, 766 So. 2d 1234, 1235-36 (Fla. 1st DCA 2000)

(applying presumption of correctness and interpreting evidence and reasonable

inferences “in a manner most favorable to sustaining that ruling”).
                                         16
      This threshold presumption of correctness, however, is only the beginning

point of the appellate review process. A reviewing court also must identify the

governing standards of review and then apply them properly to the factual and legal

issues presented, to determine whether the threshold presumption of correctness

withstands appellate scrutiny. A mixed standard of review applies here, which is

deferential to findings of credibility, historical fact, and inferences drawn from the

facts; and de novo for questions of law. Ornelas v. United States, 517 U.S. 690, 699

(1996) (“[A] reviewing court should take care both to review findings of historical

fact only for clear error and to give due weight to inferences from these facts by

resident judges and local law enforcement officers.”); Butler v. State, 706 So. 2d

100, 101 (Fla. 1st DCA 1998) (stating factual findings are reviewed for competent

substantial evidence and application of law is reviewed de novo, “yoked to federal

law” (under 1982 amendments to article I, section 12 of the Florida Constitution)).

      Where the relevant facts are undisputed and supported by competent

substantial evidence, we do not reweigh the evidence, but rather review de novo the

application of the law to the facts. Ziegler v. Martin Cty. Sch. Dist., 831 F.3d 1309

(11th Cir. 2016) (holding question is one of law where historical facts are

undisputed); Gandy, 766 So. 2d at 1235-36. Each aspect of review in the Fourth

Amendment context is set forth below.




                                         17
       (2) Deference to Finding of Credibility.

       Here, the trial judge made no findings of fact, but did expressly find that

Officer Jackson was credible in his belief that Defendant was trespassing. A trial

court’s finding of credibility is entitled to deference, and the reviewing court cannot

substitute its judgment of credibility for that of the trial court. Lowe v. State, 2 So.

3d 21, 29-30 (Fla. 2008) (“[T]his Court will not substitute its judgment for that of

the trial court on questions of fact, likewise of the credibility of the witnesses . . . .”

(quoting Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997))).

       The reviewing court also must give due weight to inferences that trial judges

and local law enforcement officers draw from the facts. Ornelas, 517 U.S. at

699; Jenkins v. State, 978 So. 2d 116, 122 (Fla. 2008) (citing Ornelas, 517 U.S. at

699). A trial court finding that a law enforcement officer credibly believed a crime

was being committed has special significance in the Fourth Amendment context. As

discussed in greater detail below, the relevant perspective for Fourth Amendment

analysis is that of the law enforcement officer, tested for objective reasonableness as

of the moment of the challenged search.

       (3) Construction of Historical Facts.

       We review findings of historical fact for clear error, and give due weight to a

law enforcement officer’s inferences drawn from the facts. Ornelas, 517 U.S. at 699.

One problem in this case, which has made our review more difficult, is that the trial

                                            18
judge made no findings of fact other than that Officer Jackson was credible in

believing Defendant was trespassing. Nevertheless, in this case the proper analysis

does not turn on disputed facts. The relevant evidence was undisputed, leaving only

a question of law. Ziegler, 831 F.3d at 1309. We would err if we ignored undisputed

facts and reasonable inferences drawn from them that are relevant and necessary to

satisfy the analytical demands of substantive Fourth Amendment law as discussed

below.

      (4) De Novo Review of Probable Cause.

      The existence of reasonable suspicion and probable cause are questions of law

reviewed de novo, with no deference to the trial court’s ruling. Ornelas, 517 U.S. at

697 (requiring appellate court to conduct independent review of the ultimate legal

determination of whether reasonable suspicion or probable cause exists); Jenkins,

978 So. 2d at 122 (“[D]eterminations of reasonable suspicion and probable cause

should be reviewed de novo on appeal.”).

      (5) Totality of the Circumstances.

      Fourth Amendment law requires us to evaluate reasonable suspicion and

probable cause issues in light of the totality of the circumstances, including “the time

of day, the location, the timing of the events, the route of the flight, and ‘anything

incongruous or unusual in the situation as interpreted in the light of the officer’s

knowledge.’” Cox v. State, 975 So. 2d 1163, 1167 (Fla. 1st DCA 2008) (emphasis

                                           19
added) (quoting State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978)).

“Probable cause for arrest exists when the totality of the facts and circumstances

within an officer’s knowledge would cause a reasonable person to believe that an

offense has been committed by the person being arrested.” Hatcher v. State, 15 So.

3d 929, 931 (Fla. 1st DCA 2009) (emphasis added) (citing Chavez v. State, 832 So.

2d 730, 747 (Fla. 2002)).

      (6) Officer Jackson’s Knowledge and Perspective.

      Defendant’s subjective belief about the legality of his actions is irrelevant to

probable cause analysis. Rather, we must analyze probable cause in light of Officer

Jackson’s knowledge and the circumstances of the encounter. Graham v. Connor,

490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.”). “Probable cause exists where ‘the facts and

circumstances within their [the officers’] knowledge and of which they had

reasonably trustworthy information [are] sufficient in themselves to warrant a man

of reasonable caution in the belief that’ an offense has been or is being

committed.” Brinegar v. United States, 338 U.S. 160, 175–76 (1949)

(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)); Hatcher, 15 So. 3d at

931; Cox, 975 So. 2d at 1167. Probable cause is judged objectively, from a

reasonable officer’s perspective given the facts and circumstances. State v.

                                         20
Hankerson, 65 So. 3d 502, 506 (Fla. 2011); State v. Wimberly, 988 So. 2d 116, 119-

20 (Fla. 5th DCA 2008). Hearsay evidence is admissible to show Officer Jackson’s

knowledge or understanding at the time of the arrest. Hayward v. State, 24 So. 3d

17, 37 & n.10 (Fla. 2009) (“Hearsay can be used to establish probable cause to arrest,

even if it may not be used at trial.”); Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985)

(upholding admission of hearsay evidence in suppression hearing and noting that

hearsay can be sufficient to establish probable cause) (citing State v. Wolff, 310 So.

2d 729 (Fla. 1975)).

      In addition, probable cause is evaluated at the moment of arrest—the clock

stops, time freezes, and nothing learned or occurring afterwards matters. “The

reasonableness of official suspicion must be measured by what the officers knew

before they conducted their search.” Florida v. J.L., 529 U.S. 266, 271 (2000)

(emphasis added); Baptiste v. State, 995 So. 2d 285, 294 (Fla. 2008) (“[T]he

reasonableness of the officers’ suspicion must be measured by the information that

the officers knew before conducting the stop-and-frisk.”); Griffin v. State, 150 So.

3d 288, 291 (Fla. 1st DCA 2014) (explaining that probable cause must be based

solely on what is present and known at that point; “we stop the clock and observe

the facts known to the officer”).

      The bottom line is that we collect what Officer Jackson knew and the

circumstances confronting him at the time of the search, then we ask whether an

                                          21
objectively reasonable officer with that same knowledge and under those same

circumstances at that same time would have concluded that a crime was probably

about to be committed or being committed. The question is not whether Defendant

would be convicted of trespass. The question is whether it would have been

objectively reasonable for someone in Officer Jackson’s circumstances to think that

a crime was probably being committed. Properly applying these standards and the

governing law, Officer Jackson had probable cause and the motion to suppress

should have been denied.

The Evidence.

      Officer Jackson was a member of the Duval County School Police and was

assigned the duty of patrolling the district’s 168 public school grounds at night. He

testified that he was trained in school trespass laws, and his understanding of the law

was that “somebody that didn’t have any legit purpose on the school campus and

was not invited by a property designee, i.e., the principal, or one [of] her designees,

they’re trespassing on school grounds.” He testified that this school is in a high-

crime area and that he had previously made numerous arrests for trespassing and

burglary on school grounds in the area. He testified that the principal of this middle

school previously advised this officer specifically, as well as his fellow officers, that

no people or vehicles were permitted on school property after hours at any time.

Defense counsel objected to this testimony as hearsay, and the trial judge overruled

                                           22
the objection, allowing it for the purpose of demonstrating its effect on Officer

Jackson; i.e., his knowledge. Officer Jackson testified he had never seen anyone

other than students walking on the track. Although Defendant introduced into

evidence pictures of several adults walking the track together in the daytime, no

evidence was presented of anyone else ever walking the track at or around 2:00 a.m.

      Officer Jackson knew that this school is surrounded by a six-foot-high chain

link and aluminum fence, and that there are several “no trespassing” signs around

the property. He noted the existence of the perimeter fence and no-trespassing signs

in the arrest report. Defense counsel also elicited Officer Jackson’s testimony about

the no-trespassing signs at the suppression hearing, questioning him about an e-mail

he sent to the principal after this incident to discuss the signs. Officer Jackson knew

that gates around the school were kept locked, and he did not know that one gate

near the track was unlocked that night or at any other time. Officer Jackson did not

know there was also a sign near the school track stating “No Track Access 7 A.M.

to 4 P.M.”

      Officer Jackson was on patrol at approximately 2:00 a.m. when he saw

Defendant on the middle school grounds, inside the fence. It was undisputed that

Defendant was not on the track when Officer Jackson first saw him. Defendant

admitted he was in an area of the school grounds between the track and school

buildings, and facing a school building, about halfway between the track and the

                                          23
street. He said it was necessary for him to cross that area to get to the track from the

gate he entered. Officer Jackson testified that the building close to Defendant had

windows with access to the classrooms.

      Given these facts and his understanding of the law at the time, Officer Jackson

believed Defendant was trespassing and also thought he might be on school property

to commit burglary. Officer Jackson was alone, and his backup was at least eight

minutes away. He was concerned for his own safety. Officer Jackson shone a light

on Defendant and called out to him. Defendant immediately started walking toward

Officer Jackson. Officer Jackson testified that sometimes suspects do approach him

rather than run away, such as when they do not think he is there to arrest them. The

gate closest to Officer Jackson was locked, and he unlocked it.

      When Defendant got within earshot of Officer Jackson, he stated that he was

just there to walk the track. As Defendant got closer, Officer Jackson asked him

again what business he had for being on school property, and he repeated that he was

there to walk the track. Defendant admitted that as he walked, he reached toward the

front of his jacket—he said to keep it closed. Officer Jackson saw these movements

and thought Defendant might be reaching for a gun. Officer Jackson testified that he

was concerned for his safety because Defendant “kept putting his hands in his

pockets, in his jacket pocket.” Officer Jackson testified that he asked Defendant

twice to remove his hands from his jacket pockets. Defendant did not deny that

                                          24
Officer Jackson asked him to remove his hands from his pockets but denied that

Officer Jackson asked him twice. Officer Jackson testified that “I did [have a concern

for my safety] knowing that my backup was, you know, [a] ways away . . . and that

it’s just me and him in the middle of an open field that is poorly lit and, you know,

he kept putting his hands in his pockets and I didn’t know who he was and he didn’t

know who I was and I had a legit concern for my safety.”

      Upon reaching Defendant, Officer Jackson handcuffed him, arrested him for

trespassing, and asked if he had a weapon. The arrest report, which was not

introduced at the suppression hearing, states that Defendant denied having a gun.

Officer Jackson searched Defendant’s outer pockets and this search immediately

revealed a loaded gun in a front pocket of Defendant’s jacket. Defendant was

charged with trespassing on school grounds while carrying a weapon, and possession

of a firearm by a convicted felon.

      At the suppression hearing, Defendant admitted he was a three-time convicted

felon. He testified that he had walked this track at night fifteen or twenty times

previously as part of his efforts to lose weight and reach a healthy blood pressure, as

substantiated by several of his Facebook posts admitted into evidence over the

State’s relevance objection. Also over the State’s relevance objection, Defendant

testified that an officer at another school had told him it was permissible for him to

walk the track at that other school so long as the gate was unlocked and school was

                                          25
not in session, and that walking in the middle of the night fit his schedule. When

asked if he could think of any reason Officer Jackson would think he was not actually

on school grounds to walk the track, Defendant said the only reason for Officer

Jackson not to believe him would be “because it’s 2 o’clock in the morning [s]o in

his mind, he wants to think I was there for something else other than that.”

Overview of Analysis.

      The majority’s analysis seems to begin with the premise that Defendant was

not trespassing, and then reasons that Officer Jackson made unreasonable mistakes

as to both fact and law, thus acting unreasonably in arresting Defendant. Properly

applied, however, suppression analysis under the Fourth Amendment does not turn

on whether or not Defendant was, as a matter of law and fact, actually trespassing;

that is, whether he would be convicted of trespassing. Michigan v. DeFillippo, 443

U.S. 31, 37 (1979) (“The validity of the arrest does not depend on whether the

suspect actually committed a crime; the mere fact that the suspect is later acquitted

of the offense for which he is arrested is irrelevant to the validity of the

arrest.”); Seago v. State, 768 So. 2d 498, 499-500 (Fla. 2d DCA 2000) (reversing

trespass conviction because State did not prove lack of authorization, license, or

invitation; but affirming the arrest for trespass, which only required probable cause).

Rather, the Fourth Amendment requires us to determine whether an objectively

reasonable person with Officer Jackson’s training and understanding of the law

                                          26
(even if reasonably mistaken), under the circumstances facing him, would think a

crime probably was about to be committed or was being committed. Applying the

governing Fourth Amendment law to the facts, I conclude that Officer Jackson was

not mistaken and that even if he was mistaken, his mistakes were reasonable and

therefore he had probable cause to arrest Defendant.

      Officer Jackson also had legal grounds to search Defendant for weapons for

officer safety reasons because Defendant admittedly was reaching toward his jacket

pockets as he walked toward Officer Jackson. In addition, the trial court found and

Defendant has not contested that Officer Jackson had reasonable suspicion to detain

Defendant for trespassing. Coupled with Defendant’s admitted hand movements

toward his jacket pockets, Officer Jackson therefore had the attendant right to frisk

Defendant, making discovery of the gun inevitable. I will address probable cause to

arrest first, followed by officer safety and inevitable discovery as additional grounds

for the legality of the search.

Officer Jackson Had Probable Cause to Arrest Defendant.

      Probable cause exists when an officer has reasonable grounds to believe that

the defendant probably committed a crime. State v. Cuomo, 43 So. 3d 838, 841 (Fla.

1st DCA 2010) (“The existence of probable cause is not based on a formulaic

determination, but rather on the probability of criminal activity.”). We evaluate the

totality of the circumstances known to an officer, testing whether a reasonable

                                          27
person with such knowledge would believe the suspect was committing a

crime. Hatcher, 15 So. 3d at 931; see also Dahl v. Holley, 312 F.3d 1228, 1234 (11th

Cir. 2002) (“[A]rresting officers, in deciding whether probable cause exists, are not

required to sift through conflicting evidence or resolve issues of credibility, so long

as the totality of the circumstances present a sufficient basis for believing that an

offense has been committed.”). We have held that an officer who observes a

defendant committing the crime of trespass has probable cause to arrest the

defendant and search him pursuant to the arrest. State v. Neely, 560 So. 2d 1230,

1231 (Fla. 1st DCA 1990).

      What Officer Jackson knew at the point of arrest begins with the legal

foundation in which he was trained and on which he performed his duties. He

testified that he had been trained in, and was familiar with, Florida’s school safety

laws. Florida protects its school grounds by creating school safety zones “in, on, or

within 500 feet of any real property owned by or leased to any public or private

[school].” § 810.0975(1), Fla. Stat. (2014). Criminal trespass occurs when someone

is on school grounds without “legitimate business on the campus or any other

authorization, license, or invitation to enter or remain upon school property.”

§ 810.097(1)(a), Fla. Stat. We have defined “legitimate business” under the school

trespass laws as “any purpose for being there which is connected with the operation

of the school.” E.W. v. State, 873 So. 2d 485, 487 (Fla. 1st DCA 2004). Any law

                                          28
enforcement officer may “arrest either on or off the premises and without warrant

any person the officer has probable cause for believing has committed the offense of

trespass upon the grounds of a school facility.” § 810.097(4), Fla. Stat.

      Every school principal is required to notify the appropriate law enforcement

agency to prohibit people from loitering in the school safety zone, except for those

with legitimate business, authorization, or license. See § 810.0975(2)(a), Fla. Stat.

If no law enforcement officer is on site, a school’s chief administrative officer or

designated employee having probable cause to believe that a person is trespassing

on school grounds is authorized to take into custody and detain such person “in a

reasonable manner for a reasonable length of time” while awaiting arrival of a law

enforcement officer. § 810.097(3), Fla. Stat. It is a third-degree felony for a person

trespassing on school property to possess a weapon or firearm on the property.

§ 810.095(1), Fla. Stat.

      Officer Jackson testified to his understanding that under the school safety

laws, anyone on school grounds without permission or invitation was trespassing.

Officer Jackson’s understanding of the school safety law provision on trespass was

accurate, and even if it had not been, it was objectively reasonable. Simply put,

people should not be on school grounds in the middle of the night. He also testified

that the principal of this particular school had told him and other officers that no one

was permitted to be on school grounds at night. Defendant incorrectly argues that

                                          29
the principal’s instructions should have been excluded from evidence. To the

contrary, the core probable cause analysis requires us to consider what Officer

Jackson knew prior to the time of arrest. Hankerson, 65 So. 3d at 506; Hatcher, 15

So. 3d at 931; Cox, 975 So. 2d at 1167. Further, even hearsay can create probable

cause for an officer to act without a warrant. Hayward, 24 So. 3d at 37 & n.10; Lara,

464 So. 2d at 1177. The trial court therefore correctly overruled Defendant’s hearsay

objection to this evidence.

      The majority draws inapt analogies to “Interstate rest areas, post office

lobbies, university event venues, campgrounds, parks, and the like.” None of those

places are school grounds in Florida protected by Florida’s school safety code. None

of the administrators of those places have advised law enforcement to keep people

off of the grounds at night. None of those places are surrounded by fences bearing

no-trespassing signs.

      The majority likewise relies erroneously on four facts not known to Officer

Jackson at the time of Defendant’s arrest: (1) Defendant’s after-the-fact testimony

that another unidentified and non-testifying school employee at another school told

him he could use a school track if a gate was left open; (2) one gate was left open on

a different side of school grounds from where Officer Jackson encountered

Defendant; (3) legal argument at the suppression hearing that the sign prohibiting

access between 7:00 a.m. and 4:00 p.m. implicitly authorized access at all other

                                         30
hours; and (4) pictures admitted into evidence at the suppression hearing depicting

several adults on the track in daylight (though not at 2:00 a.m.). Reliance on these

facts is improper for several reasons.

      (1) First, probable cause does not depend on the perspective of an employee

at another school. Proper analysis focuses on Officer Jackson’s knowledge. He

testified to his understanding of the school safety code, which directs that access to

school grounds is determined on a school-by-school basis by the authorized

personnel at each particular school. The policy at one school might not be the policy

at another school. The principal at this school told Officer Jackson not to allow

people on school grounds at night. That was the state of his knowledge, and it was

objectively reasonable because it was consistent with the terms of the school safety

code and Officer Jackson’s training and experience—particularly in this part of town

which was a high-crime area where he had made many prior night-time arrests for

burglary and trespass.

      (2) Second, the fact that a gate was left open on another side of the school

grounds does not defeat probable cause, because Officer Jackson did not know the

gate was left open and his unawareness of that fact was not unreasonable. The gate

where he encountered Defendant was locked, and he had to unlock it to access the

school grounds near Defendant. He thought that, consistent with the school safety

code, perimeter fencing, no-trespassing signs, and the principal’s instructions, all

                                         31
gates were locked after hours. He testified that in his opinion they should have been

locked, and that he advised the school after this incident to ensure that they be locked

in the future. It was not objectively unreasonable for Officer Jackson to think that

the gates were kept locked, nor was it objectively unreasonable for him to be

unaware that one gate on one side of the property at one school among the many he

patrolled was unlocked.

      (3) Third, the access sign raises no material question of fact even though

Officer Jackson testified he had not previously noticed the sign. His failure to notice

one sign on the fence of one large, poorly-lit school campus among 168 in the school

district is reasonable in light of his night-time working hours and his patrolling from

a car. Even if he had seen the sign before, however, the issue would be how to

interpret the sign. Interpreting the sign to determine whether it created a blanket

license to enter school grounds at 2:00 a.m. is a legal question.

      Defense counsel at the suppression hearing elicited Officer Jackson’s

testimony that his reaction upon learning about the access sign was one of concern

because it was not consistent with his understanding of the law. After this incident

and many months before the suppression hearing, Officer Jackson contacted the

school principal to set up a meeting to discuss his concerns about the signs. It was

not until cross-examination at the suppression hearing ten months after the arrest that

Officer Jackson answered “yes” when asked if the sign prohibiting access between

                                          32
7 a.m. and 4 p.m. could be interpreted as authorizing access to the track between 4

p.m. and 7 a.m. He was not asked to distinguish between neighborhood residents

walking the track together in daylight and a lone individual walking on school

grounds off the track at 2:00 a.m., but our de novo review demands that we examine

that distinction.

       I entirely disagree that it would be reasonable to assume by negative

implication that this sign constitutes an open invitation to anyone and everyone to

traipse about school grounds at 2:00 a.m. This sign on fenced, posted school grounds

subject to Florida’s school safety code has a different impact than would, for

instance, a sign on a public street saying “no parking 7 a.m. to 4 p.m.” One might

reasonably assume that parking is permitted on that public street at other hours. In

the context of protected Florida school grounds, however, such an interpretation is

contrary to the letter and spirit of the school safety code, contrary to the directions

of the principal at this school, and contrary to common sense. It is particularly

inappropriate to fail to accord proper weight to the time of night involved here, which

is significant to the legal analysis of objective reasonableness under the

circumstances.

       (4) Fourth, the undated pictures presented at the suppression hearing showing

several adults on the track at an unidentified time in daylight do not resolve the

relevant issues raised by Defendant’s presence on school grounds off the track at

                                          33
2:00 a.m. It makes a difference. That Officer Jackson had not seen people walking

on the track in the daytime is not surprising given his night shift work hours, and it

does not constitute an unreasonable mistake of fact.

      Most importantly, none of this controls the suppression issue. Defendant

should not have offered this evidence at the suppression hearing, and the trial court

should not have allowed it. Griffin, 150 So. 3d at 291, 294 (explaining probable

cause must be based solely on what is known at the point of arrest). Why Defendant

was walking on school grounds, how many times he had previously done so without

getting caught, what he allegedly had been told by someone else at another school,

whether school employees failed to strictly protect the perimeter of this school’s

grounds, and how counsel interpreted the access sign at the suppression hearing, may

be relevant to whether or not Defendant would be convicted of trespassing—but does

not defeat probable cause. Officer Jackson did not know these facts at the point of

arrest, and that lack of knowledge, on these facts, is not unreasonable.

      Here, viewing the relevant evidence at the point of arrest, Officer Jackson had

probable cause to arrest Defendant. Officer Jackson was trained in school safety

laws, which he understood to prohibit access to school grounds at night; and he was

assigned to patrol schools at night. The principal of this school had previously

instructed Officer Jackson that no one was to be on the grounds at night. The school

was surrounded with a fence and had posted no-trespassing signs. As far as Officer

                                         34
Jackson knew, all of the gates were kept locked; and the gate between him and

Defendant was locked the night of Defendant’s arrest. Officer Jackson had never

seen people on the track while he was patrolling at night.

      This encounter occurred at 2:00 in the morning, on a dark part of a school

campus, in a high-crime area in which Officer Jackson had previously made

numerous arrests for trespassing and burglary. Although the majority reasons that

the 2:00 a.m. hour of the incident is unimportant because there was evidence that

other adults walked the track in the daytime, that reasoning dodges the issue of the

significant likelihood-of-crime difference between daytime hours and the wee-small

hours of the night. Common sense and common experience tell us that 2:00 in the

morning is not a usual—or safe—time to be wandering around alone outside in a

poorly-lit, high-crime area. Even Defendant said he carried a gun (illegally) at that

time and place for safety purposes, and even he recognized the significance of the

late hour: “because it’s 2 o’clock in the morning [s]o in his [Officer Jackson’s] mind,

he wants to think I was there for something else other than that.”

      Defendant admitted he was not on the track when Officer Jackson first called

out to him, and that to the contrary he was closer to a building and facing that

building. Defendant admitted that as he walked closer to Officer Jackson, he grabbed

at the front edges of his jacket, and he did not deny that Officer Jackson instructed

him to get his hands away from his pockets (only denying that he asked it twice).

                                          35
      Only those facts known to Officer Jackson may be used to determine whether

there were sufficient facts “‘to warrant a man of reasonable caution in the belief that

an offense has been or is being committed.’” Hankerson, 65 So. 3d at 506

(quoting State v. Betz, 815 So. 2d 627, 633 (Fla. 2002)). Reasonable mistakes of law

and fact will not interfere with a finding of probable cause. See Heien v. North

Carolina, 135 S. Ct. 530, 534, 536, 540 (2014) (holding reasonable suspicion can be

based on reasonable mistakes of law, as well as reasonable mistakes of fact); Saucier

v. Katz, 533 U.S. 194, 206 (2001) (“Officers can have reasonable, but mistaken,

beliefs as to the facts establishing the existence of probable cause or exigent

circumstances, for example, and in those situations courts will not hold that they

have violated the Constitution.”).

      Officer Jackson was not mistaken as to either the law or the relevant facts.

Probable cause is called “probable” for a reason. It is not a conviction, based on

reasonable doubt, nor is it even a prima facie showing; it is simply an “assessment

of probabilities.” Hankerson, 65 So. 3d at 506. The Supreme Court has held that in

the probable cause context just as in excessive force cases, the officer’s “on-scene

perspective” must be used to assess reasonableness. Saucier, 533 U.S. at 205

(“Because ‘police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation,’ . . . the reasonableness of the

                                          36
officer's belief as to the appropriate level of force should be judged from that on-

scene perspective.”) (quoting Graham, 490 U.S. at 396 (citations omitted)).

      Under the totality of the circumstances including Officer Jackson’s duty to

protect public school grounds from crime, and especially in light of the time of the

encounter and Defendant’s motions implicating weapon and safety concerns, Officer

Jackson discharged his duties appropriately. He had probable cause to arrest

Defendant and search him, and therefore evidence of the gun Defendant was illegally

carrying was not properly suppressed.

Legal Error In Requiring Additional Investigation.

      The trial judge acted within her discretion in finding Officer Jackson credible,

and correctly concluded that Officer Jackson reasonably believed Defendant was

doing something unlawful, including trespassing, giving Officer Jackson reasonable

belief to detain Defendant. These conclusions of law are fully supported by a de

novo review. The trial judge erred, however, in concluding that Officer Jackson was

required to conduct additional investigation. Nothing more is required than

reasonable investigation under the circumstances. See City of Clearwater v.

Williamson, 938 So. 2d 985, 990 (Fla. 2d DCA 2006) (“[T]he officer does not have

to take every conceivable step to eliminate the possibility of convicting an innocent

person”; the officer must only conduct a “reasonable investigation.”); see




                                         37
also A.S.P. v. State, 964 So. 2d 211, 211-13 (Fla. 2d DCA 2007) (finding only that

trespass investigation failed to provide probable cause).

      Officer Jackson had investigated the circumstances by patrolling the middle

school area as part of his assigned duties as a school police officer, discovering

Defendant on school grounds inside the fenced perimeter at 2:00 a.m., shining his

spotlight on Defendant, asking Defendant what he was doing there, evaluating

Defendant’s explanation in light of Officer Jackson’s own training and experience

and disbelieving him, observing Defendant reaching toward his front jacket pockets,

and instructing Defendant to keep his hands away from his pockets. At that point,

Officer Jackson knew all he needed to know to justify arresting Defendant and

searching him. Under the circumstances of this encounter, particularly after

Defendant repeatedly reached toward his front jacket pockets while approaching

Officer Jackson, Defendant’s own actions cut off the possibility of further

investigation. At that point Officer Jackson could not reasonably be expected to

stand alone in front of Defendant chatting about Defendant’s Facebook posts.

      The trial judge’s reference to requiring additional investigation appears to

have resulted from Defendant’s inappropriately focusing his arguments and

evidence at the suppression hearing on proving that he was on school grounds to

walk the track for exercise and that he believed he had a legal right to be there, even

at 2:00 a.m. Those arguments, while potentially relevant to Defendant’s actual guilt

                                          38
and sentence on the trespass charge, are not relevant to the existence of probable

cause, and the trial judge should have sustained the State’s relevance objections to

this evidence in the suppression hearing. The existence of probable cause depends

on how an objectively reasonable person with the officer’s knowledge and belief

would assess the probabilities in the circumstances in which they arose—not how a

suspect defends against charges after the fact. See Michigan, 443 U.S. at 36 (holding

that actual guilt or later acquittal are “irrelevant to the validity of the arrest”). The

proper test for the existence of probable cause is whether “facts and circumstances

within an officer’s knowledge and of which he had reasonably trustworthy

information are sufficient to warrant a person of reasonable caution to believe that

an offense has [been] or is being committed.” Chavez, 832 So. 2d at 747–48

(quoting McCarter v. State, 463 So. 2d 546, 548-49 (Fla. 5th DCA 1985)). The trial

judge erred in ruling that this officer lacked probable cause because he failed to

investigate Defendant’s view of his rights or factors going to the likelihood of

Defendant’s eventual conviction or the severity of his sentence.

The Search Was Valid For Other Reasons.

      Officer Safety. The search that revealed Defendant’s gun was also justified

by officer safety considerations prompted by Defendant’s motions of reaching

toward his front jacket pockets as he approached Officer Jackson. See Terry v. Ohio,

392 U.S. 1, 30 (1968) (“[W]here a police officer observes unusual conduct which

                                           39
leads him reasonably to conclude in light of his experience that criminal activity may

be afoot and that the persons with whom he is dealing may be armed and presently

dangerous, where in the course of investigating this behavior he identifies himself

as a policeman and makes reasonable inquiries, and where nothing in the initial

stages of the encounter serves to dispel his reasonable fear for his own or others’

safety, he is entitled for the protection of himself and others in the area to conduct a

carefully limited search of the outer clothing of such persons in an attempt to

discover weapons which might be used to assault him.”).

      Officer Jackson was alone in the dark with Defendant at 2:00 a.m., with his

backup eight minutes away. Even if the encounter had started as a casual

conversation when Defendant was many yards away from Officer Jackson, the

situation changed materially when, as Defendant drew closer to Officer Jackson, he

reached toward his jacket pockets. Officer Jackson testified that he saw Defendant

making such motions. Significantly, Defendant admitted that he was reaching

toward the front of his jacket, testifying that he did so because it was flopping open

as he walked. Officer Jackson, however, suspected that these gestures indicated

Defendant had a weapon and thus that Officer Jackson’s safety was at risk. He

testified that “I did [have a concern for my safety] knowing that my backup was, you

know, [a] ways away . . . and that it’s just me and him in the middle of an open field

that is poorly lit and, you know, he kept putting his hands in his pockets and I didn’t

                                          40
know who he was and he didn’t know who I was and I had a legit concern for my

safety.”

      While Defendant and Officer Jackson had different explanations or suspicions

about why Defendant was moving his hands toward his front pockets or waist area,

the fact of the movements was undisputed, and justified Officer Jackson’s search

under these circumstances. A suspect’s hand movements in the vicinity of pockets

and the waist area are significant indicators of the possible presence of a concealed

weapon, and such gestures are sufficient to support an officer’s pat-down search to

ensure officer safety. State v. Cruse, 121 So. 3d 91, 99-100 (Fla. 3d DCA 2013)

(affirming officer’s entitlement to pat down suspect who manipulated waistband and

hiked up pants, which are known indicators of carrying a weapon) (citing Mackey

v. State, 83 So. 3d 942, 945–47 (Fla. 3d DCA 2012) (holding that officer may

conduct a search, not just a pat-down, based on observation supported by experience

and training that suspect may be carrying a concealed weapon)); State v. Wilson,

566 So. 2d 585, 586-87 (Fla. 2d DCA 1990) (finding reasonable suspicion to frisk

defendant who “repeatedly reached behind himself, touching the waistband of his

pants”)).

      If there had been any point in this 2:00 a.m. encounter when extended casual

conversation may have been feasible and safe, that possibility evaporated when

Defendant walked toward Officer Jackson while admittedly grabbing at the front

                                         41
pocket area of his jacket, triggering Officer Jackson’s legitimate safety concerns and

his right to protect himself. Officer Jackson was not required to place himself at risk

of being shot by a convicted felon illegally carrying a loaded handgun on public

school grounds in the middle of the night. Under these circumstances, Defendant’s

admitted actions of reaching toward the front pocket area of his jacket or waistband

area as he drew near Officer Jackson justified Officer Jackson’s immediate actions

in neutralizing the threat that Defendant presented and searching him for weapons.

He had that right under probable cause analysis and under reasonable suspicion

analysis. The suppression order is erroneous for this additional reason.

      Inevitable Discovery. Officer Jackson was also justified in searching

Defendant for weapons once Officer Jackson had reasonable suspicion—as the trial

judge concluded he did—that Defendant was committing or about to commit a

crime, such as burglary or trespass. Discovery of the gun was thus inevitable

regardless of whether justification for the search was based on reasonable suspicion,

probable cause, or officer safety. See Nix v. Williams, 467 U.S. 431, 447-48 (1984)

(adopting the inevitable discovery doctrine allowing admission of evidence even if

it was obtained as the result of unconstitutional police procedure, if the evidence

would ultimately have been discovered by legitimate means); Maulden v. State, 617

So. 2d 298, 301 (Fla. 1993) (recognizing inevitable discovery doctrine for Florida

courts).

                                          42
      The bottom line here is that Defendant, knowing that he was a convicted felon,

committed a crime (and exercised extremely poor judgment) by carrying a loaded

gun on fenced public school grounds at 2:00 in the morning, and by reaching toward

the pocket containing that gun while approaching a law enforcement officer. If

Officer Jackson’s search for weapons, whether it occurred incident to an

investigatory stop, detention, or arrest, had revealed that Defendant was unarmed, in

all likelihood the situation would have de-escalated and a more extended

conversation could have occurred, in all likelihood ending very differently for

Defendant. Officer Jackson and all other law enforcement officers who must make

on-the-spot judgments under dangerous circumstances should be applauded, and not

vilified, for maintaining public safety and enforcing the rule of law.

Conclusion.

      Applying the governing probable cause analysis under the correct standard of

review to the legally relevant facts—those known to Officer Jackson viewed in the

circumstances that existed prior to the arrest—leads to the conclusion that the trial

court erred by concluding that probable cause did not exist and suppressing evidence

of the gun Defendant was carrying. Even absent probable cause, the evidence should

not have been suppressed because a weapons search was authorized under Terry and

for officer safety. Accordingly, I must respectfully dissent.




                                          43
44
