         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


A.M., A CHILD,

             Appellant,

 v.                                                    Case No. 5D17-1062

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed December 22, 2017

Appeal from the Circuit Court
for Orange County,
Gail A. Adams, Judge.

James S. Purdy, Public Defender, and
Benjamin A. Schumann, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      A.M. appeals the trial court’s denial of his motion to suppress a pistol the police

gathered during a warrantless arrest incidental to the theft of a “bait vehicle.” For the

reasons set forth below, we agree that the trial court erred in denying the motion to
suppress because the investigating officer had insufficient evidence to order a patrol unit

to stop a different “non-bait” vehicle in which Appellant was riding as a passenger.

       As part of normal operations, the sheriff’s department placed a “bait vehicle” on

the street to determine if somebody would attempt to steal it. Indeed, somebody did enter

and drive the bait vehicle from its original location and parked it near a wooded area and

a house. The investigating deputy, Deputy Schmeltzer, testified that he responded to the

new location where he observed two males walking back and forth between the bait

vehicle and the house. The car doors were already open when Schmeltzer arrived. He

did not see either male touch the car doors, sit in, drive, move, or take anything from the

bait vehicle. Specifically, he did not see A.M. sit in the car, take anything from or place

anything in the car, or move the car. During the hours that he observed the bait vehicle,

Schmeltzer observed A.M. lean into the vehicle twice.

       Schmeltzer observed a second vehicle (“non-bait vehicle”) arrive at the house, the

two males he was surveilling got in, and the second vehicle left the house with four

occupants. Schmeltzer radioed a request to have the non-bait vehicle stopped for the

sole purpose of identifying the two males he observed near the bait vehicle. Deputy

Bonetti, in a marked patrol car, stopped the non-bait vehicle based upon what he

understood to be a felony stop for grand theft of a motor vehicle.            Bonetti had no

independent probable cause for the stop and assumed that the auto crimes unit

requesting the stop had probable cause. Deputy Borrero was also involved in the stop;

however, he also had no independent probable cause to stop or search the non-bait

vehicle. The officers neither identified nor relied upon any traffic infractions as a basis for

the stop. A K-9 officer and Borrero searched the occupants of the non-bait car. Borrero




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found a gun in A.M.’s waistband; however, police did not find the keys or anything else

related to the bait vehicle in A.M.’s possession.

       The State charged A.M. by delinquency petition with carrying a concealed weapon,

possession of a weapon by a minor, and trespass in a conveyance. Defense counsel

filed a motion to suppress all evidence resulting from the warrantless non-bait vehicle

stop and search and argued that Schmeltzer’s observations of A.M. did not support a

reasonable suspicion that A.M. was committing a crime. The trial court denied the motion

to suppress, finding that leaning into the bait vehicle twice was sufficient exercise of

control over the stolen bait vehicle to justify probable cause that A.M. had committed

grand theft of a motor vehicle, which in turn justified stopping and searching the non-bait

vehicle and its occupants. At the subsequent disposition hearing, the trial court granted

the defense motion for judgment of acquittal regarding the charge of trespass in a

conveyance, finding that the State failed to prove A.M. had knowledge of the stolen nature

of the bait vehicle. The court found sufficient evidence to find A.M. delinquent regarding

the firearm charges and placed him on probation with restrictive terms, but withheld

adjudication.

       In order for a person to commit grand theft of a motor vehicle, he or she must

exercise some control over the vehicle, and at a minimum have knowledge that he lacked

permission to drive, occupy, or enter that vehicle. See M.D.S. v. State, 982 So. 2d 1282,

1284 (Fla. 2d DCA 2002). The State does not claim that A.M.’s mere presence near the

stolen bait vehicle supplied probable cause. Indeed, it is well settled that mere proximity

to stolen property without more is insufficient. See Bronson v. State, 926 So. 2d 480, 485

(Fla. 2d DCA 2006). However, the State argued below and on appeal that leaning into




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the bait vehicle twice over a period of hours, without more, provided probable cause. By

leaning into the vehicle, A.M. certainly demonstrated some level of curiosity or interest in

the bait vehicle; however, without more, this action is not evidence that he had committed

or was committing any crime. See M.D.S., 982 So. 2d at 1284-85 (holding that juvenile’s

possession of the stolen vehicle’s keys, which he claimed to have found outside the

vehicle, would not support a finding of probable cause). Under the circumstances of this

case, we hold that there was insufficient probable cause to stop the non-bait vehicle; thus,

all evidence obtained from the unlawful stop should have been suppressed as fruit of the

poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 485 (1963). Accordingly

we reverse the trial court’s order finding A.M. delinquent based on the firearm charges

and order that there shall be no further proceedings against A.M. based on those charges

as the State offered no evidence separate from that obtained during the stop.


       REVERSED.


SAWAYA and BERGER, JJ., concur.




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