       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 20, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2574
                          Lower Tribunal No. 12-2919
                             ________________


                                 Albert Cole,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Stacy D. Glick,
Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant
Attorney General, for appellee.


Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

     EMAS, J.
         INTRODUCTION

         Appellant, Albert Cole (“Cole”), appeals from the final judgment of

conviction and sentence on the basis that the court erred in denying Cole’s motion

to suppress physical evidence, and in denying three challenges for cause during

jury selection. On appeal, the State commendably concedes that the trial court

committed reversible error in at least one of its denials of the for-cause challenges,

warranting a new trial. Upon our review of the record, we agree and reverse for a

new trial. We nevertheless address the first issue, and hold that the trial court

properly denied the motion to suppress because the defendant voluntarily

abandoned the drugs found under the defendant’s car, and the police inevitably

would have discovered the drugs found on defendant’s person.

         FACTS

         Cole was charged with trafficking in cocaine, tampering with evidence1 and

possession of drug paraphernalia after a traffic stop. The defense filed a motion to

suppress the evidence found during the traffic stop. At the suppression hearing, the

following relevant testimony was presented:

         Officer Rosa Olivo was on patrol during the evening of February 3, 2012

when she saw a car with a faded and illegible temporary tag, as well as a tinted

film covering the brake lights, making it impossible to determine if the vehicle’s


1   The State eventually nolle prossed this count prior to trial.

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lights were on. Before Officer Olivo could initiate a stop of the car, the driver

suddenly turned into the opposite lane of traffic without signaling and parked in the

grassy swale. Officer Olivo activated her lights and siren, exited her car, and

began walking toward the car. Cole was the driver and only occupant of the car.

As Officer Olivo headed toward Cole’s car, Cole began to exit his car. Officer

Olivo told Cole to remain inside. Cole handed Olivo his license and registration,

and Officer Olivo described Cole as very nervous, sweating and stuttering. In

response to her questions, Cole told Officer Olivo he was going to meet a “good

friend” who lived nearby, but when asked, Cole could not provide the friend’s

name. Given Cole’s behavior, Officer Olivo requested backup.

      Officer Lisa Lobello arrived as backup within a few minutes of Officer

Olivo’s request. Upon Lobello’s arrival, Officer Olivo returned to her police

vehicle to conduct further investigation related to the traffic stop. Officer Lobello

engaged in small talk with Cole, who was still seated in his car. Officer Lobello

described Cole as looking past her as they spoke, as if he was “visually trying to

clear an area.” Cole informed Officer Lobello that he was on parole. Cole was

sweating, bouncing his legs up and down, and looked afraid. Both of his hands

were clenched in fists, and he was tightly gripping an ink pen in his right hand.

This caused concern for Officer Lobello, who believed that the pen was being held

in such a way that it could be used as a weapon. Officer Lobello asked Cole to



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step out of his car so she could conduct a patdown search. She grabbed his wrist

before he stepped out of the car and shook the pen out of his hand, then helped

Cole out of the car. While taking him out of the car, Lobello twisted Cole’s arm

and turned him around so he was facing away from her and toward his own car.

As she turned him around, Officer Lobello saw Cole flick his wrist. Lobello saw

dust rising from the dirt ground and believed Cole had thrown something under the

car. Lobello asked Cole if he had thrown something, but Cole said no. Officer

Lobello put Cole up against his car and handcuffed him in order to pat him down.

Lobello felt what seemed like plastic bags inside Cole’s pocket, but she could not

tell whether they were empty. She asked Cole what she was feeling and Cole said

they were plastic bags. Officer Lobello removed the bags from Cole’s pocket.

They appeared empty, and Lobello did not see any drug residue inside the bags.

      A third officer arrived at the scene who searched Cole more thoroughly.

Inside of Cole’s sock the officer found a bag containing crack cocaine and a bag of

powder cocaine. A K-9 officer came to the scene and searched the area under

Cole’s car. The police retrieved additional bags of crack cocaine. Inside Cole’s car

police found additional empty bags matching those found in Cole’s pocket.

      Following this testimony, the defense argued Lobello did not have

reasonable suspicion that Cole was armed with a dangerous weapon, thereby

rendering the patdown illegal. The defense also argued that pulling the baggies out



                                         4
of Cole’s pocket was unlawful, because it was not immediately apparent from the

patdown search that Cole had a weapon or contraband on his person.

      The State argued, inter alia, that the drugs would have been inevitably

discovered. The defense contended that the inevitable discovery doctrine did not

apply, given that Cole’s action in throwing the drugs did not occur until after

Lobello ordered Cole out of the car for the patdown, grabbed his wrist, twisted his

arm, and turned him around. The defense asserted that Cole’s action in throwing

away the contraband amounted to involuntary abandonment, made in response to

an unlawful seizure.

      ANALYSIS

      We apply a mixed standard of review to an appeal of an order on a motion to

suppress. We must “defer to the trial court’s factual findings so long as the

findings are supported by competent, substantial evidence, and review de novo the

legal question. . . .” State v. Hankerson, 65 So. 3d 502, 506 (Fla. 2011). The

evidence must be construed in a manner most favorable to sustaining the ruling

below. Cotton v. State, 901 So. 2d 241 (Fla. 3d DCA 2005).

      Cole concedes the initial traffic stop was lawful. Thus, the first issue we

must address is whether Officer Lobello had reasonable suspicion to conduct the

subsequent patdown search of Cole. Florida’s stop and frisk law requires “not

probable cause but rather a reasonable belief on the part of the officer that a person



                                          5
temporarily detained is armed with a dangerous weapon.” State v. Webb, 398 So.

2d 820, 824 (Fla. 1981); see also J.L. v. State, 727 So. 2d 204 (Fla. 1998).

      Section 901.151(5), Florida Statutes (2012) (entitled “Stop and Frisk Law”),

provides:

      Whenever any law enforcement officer authorized to detain
      temporarily any person under the provisions of subsection (2) has
      probable cause to believe that any person whom the officer has
      temporarily detained, or is about to detain temporarily, is armed with
      a dangerous weapon and therefore offers a threat to the safety of the
      officer or any other person, the officer may search such person so
      temporarily detained only to the extent necessary to disclose, and for
      the purpose of disclosing, the presence of such weapon. If such a
      search discloses such a weapon or any evidence of a criminal offense
      it may be seized.

      The use of the term “probable cause” in the context of a stop and frisk, has

been construed to mean “articulable suspicion,” “reasonable belief,” or “founded

suspicion.” Webb, 398 So. 2d at 826; Smith v. State, 719 So. 2d 1018, 1022 n. 1

(Fla. 3d DCA 1998). And as the Florida Supreme Court has held, “[a] ‘founded

suspicion’ is a suspicion which has some factual foundation in the circumstances

observed by the officer, when those circumstances are interpreted in light of the

officer’s knowledge.” Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995). In State v.

Cruse, 121 So. 3d 91 (Fla. 3d DCA 2013), this court set forth the factors that may

be considered by officers

      to arrive at a reasonable suspicion that a crime is being or is about to
      be committed and to support the investigatory stop or detention of a
      suspect:


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              The time; the day of the week; the location; the physical
              appearance of the suspect; the behavior of the suspect;
              the appearance and manner of operation of any vehicle
              involved; anything incongruous or unusual in the
              situation as interpreted in the light of the officer’s
              knowledge.

              To this list may be added the factor of flight.

Cruse, 121 So. 3d at 97-98 (quoting Hernandez v. State, 784 So. 2d 1124, 1126

(Fla.

3d DCA 1999)).

        Additionally, “[n]ervous, evasive behavior is another pertinent factor in

determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

“Reasonable suspicion can exist even though the suspicious activity is consistent

with innocent activity.” Hernandez, 784 So. 2d at 1126.

        Here, in light of the totality of circumstances, we conclude there was

reasonable suspicion to justify a patdown search of Cole. The stop occurred at

approximately 9 p.m.       The officer noticed that Cole was sweating, appeared

nervous, was fidgety (bouncing his legs up and down), and his fists were tightly

clenched. He could not answer some of the officer’s questions, and though he said

he was going to see a “good friend,” Cole could not provide the friend’s name or

address. Further, just prior to the stop, Cole had made a sudden U-turn into

oncoming traffic lanes and parked in a swale facing the wrong direction. Finally,




                                           7
Cole had a pen clenched tightly in one of his hands when the officer approached

and initiated contact with him.

      The case at hand is distinguishable from State v. Herron, 68 So. 3d 330 (Fla.

3d DCA 2011) on which Cole relies in his brief. In Herron, the State argued:

      the pat-down was lawful because Herron appeared “excruciating[ly]
      nervous, fidgety,” could not produce a driver’s license, proof of
      insurance, or car registration, and appeared to be “looking out the
      window [for] an avenue of escape.” The State further point[ed] out
      that the officer did not feel comfortable returning to his vehicle to run
      a DAVID System identification or mug shot system identification of
      the defendant under the circumstances.

      This court determined in Herron that this series of events was “insufficient

to justify a pat-down when there is no additional articulable suspicion the person is

armed with a dangerous weapon.” Id. at 331. The instant case presents additional

factors not present in Herron, such as Cole’s inability to answer the officer’s

simple questions, his failure to make eye contact with the officer (and appearing to

visually clear an area behind the officer), his abrupt turn of the car into oncoming

traffic and improper parking, and his tight grasp on a pen in a manner which

caused the officer to believe it could be used as a weapon.

      Additionally, this case is distinguishable from Davis v. State, 67 So. 3d 1125

(Fla. 5th DCA 2011). In Davis, the officer initiated a consensual encounter with

the defendant, who was standing in a “high-crime” area with several other

individuals. The officer observed that the defendant had a pocketknife clipped into



                                         8
one of his pants pockets. The officer proceeded to secure the pocketknife and

“considered it necessary to patdown for weapons just … for [his] own safety…”

Id. at 1126. There were no other reasons articulated for the patdown, and simply

having a pocket knife clipped to one’s pocket does not, without more, provide

reasonable suspicion to justify a patdown search.

      This is far different from our situation, where officers were presented with a

number of additional circumstances justifying the patdown search. Further, given

the manner in which Cole was carrying and displaying the pen when the officer

approached and engaged with Cole, the officer had a reasonable belief that the pen

could be used in a manner to inflict harm on the officer. Based on the totality of

the circumstances, we hold there was reasonable suspicion to justify the patdown

search of Cole.

      Cole contends that, even if the initial patdown search was justified, the

officer exceeded the limited scope of a patdown for weapons, resulting in a full and

unlawful search and the discovery of cocaine in his sock. Although we agree that

the officer exceeded the limited scope of a patdown search, we nevertheless

conclude that the evidence is not subject to suppression because the drugs found in

Cole’s sock would have inevitably been discovered.

      As a general rule, evidence from an unreasonable search or seizure is

inadmissible. United States v. Wade, 388 U.S. 218 (1967). The exclusionary rule



                                         9
was created to deter deliberate, reckless, or grossly negligent police misconduct.

Herring v. United States, 555 U.S. 135, 144 (2009). As the United States Supreme

Court held in Herring: “To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently

culpable that such deterrence is worth the price paid by the justice system.” Id.

      Inevitable discovery is a recognized exception to the exclusionary rule and

requires the State to establish that “the evidence would have inevitably been

discovered in the course of a legitimate investigation.” Moody v. State, 842 So. 2d

754, 759 (Fla. 2003).     See also Nix v. Williams, 467 U.S. 431, 444 (1984)

(recognizing and adopting the inevitable discovery exception to the exclusionary

rule, and holding that the exclusionary rule should not apply if “the prosecution

can establish by a preponderance of the evidence that the information ultimately or

inevitably would have been discovered by lawful means”). In other words, given

the evidence presented, “the case must be in such a posture that the facts already in

the possession of the police would have led to this evidence notwithstanding the

police misconduct.” Moody, 842 So. 2d at 759.

      The inevitable discovery exception applies in the instant case and renders

admissible the evidence seized.      The initial stop of Cole was lawful and, as

discussed, there was reasonable or articulable suspicion for the officer to conduct a

patdown search. Although the patdown search ultimately exceeded its proper



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scope, resulting in the seizure of empty plastic bags from Cole’s pocket and the

subsequent seizure of cocaine from his sock, this is not the end of our analysis. 2

The critical fact remains that, while Cole was being removed from his car during

the course of a lawful investigation, and before the actual patdown search

commenced, Cole flicked his wrist and threw drugs underneath the car. This act

by Cole, occurring while the officer was attempting to remove Cole out of his car,

constituted a voluntary abandonment of the drugs in his hand. See State v. Oliver,

368 So. 2d 1331 (Fla. 3d DCA 1979). We reject the defense argument that Cole’s

action was an involuntary act and the product of an unlawful seizure of Cole.

Officer Lobello was acting lawfully at the time Cole flicked his wrist and threw the

drugs under the car; Officer Lobello’s actions in removing Cole from the car and
2 We agree with Cole that Officer Lobello’s subsequent search of Cole exceeded
the scope of a patdown search, given that she felt empty bags and removed them
from Cole’s pocket. A patdown search is conducted for the purpose of discovering
“a dangerous weapon.” § 901.151(5), Fla. Stat. See also Harford v. State, 816 So.
2d 789 (Fla. 1st DCA 2002). If during the course of a proper patdown search, the
officer feels an object whose incriminating nature is immediately apparent, that too
may be lawfully seized. Minnesota v. Dickerson, 508 U.S. 366 (1993) (adopting
the “plain feel” doctrine to permit seizure of such items during an otherwise lawful
patdown search); Griffin v. State, 150 So. 3d 288 (Fla. 1st DCA 2014). However,
the patdown search here revealed neither of these, but merely what felt to the
officer like “empty plastic bags.” Being neither a weapon nor immediately
identifiable as contraband, Officer Lobello exceeded the scope of a patdown search
by removing these items from Cole’s person and then conducting a full search of
Cole’s person which revealed cocaine in his sock. Ordinarily, the empty bags and
drugs found on his person would be subject to suppression, as they were seized as
a result of a search that exceeded the scope of a limited patdown search. As we
explain, however, under the facts of this case, the inevitable discovery exception
renders this evidence admissible.


                                        11
twisting his arm to remove the pen and to turn Cole around to face the car were

reasonable actions in preparation for a safe and proper patdown search.

      Because Cole voluntarily abandoned these drugs by throwing them

underneath the car, that evidence was properly and lawfully seized by the police,

and in fact constituted no Fourth Amendment search at all. Oliver, 368 So. 2d

1331 (Fla. 3d DCA 1979). That the abandoned drugs were seized only after a full

(and unlawful) search of Cole revealed other drugs on his person is not

determinative here. Had the officers, for example, immediately looked underneath

the car (instead of awaiting the arrival of a K-9 unit) they would have found the

bags of cocaine abandoned by Cole, arrested Cole for possession of those drugs,

and conducted a full (and lawful) search of his person incident to arrest, resulting

in the inevitable discovery and seizure of the cocaine in his sock. Under these

circumstances, the exclusionary rule does not apply and the trial court correctly

denied the motion to suppress.

      CONCLUSION

      Given that Officer Lobello was acting in the course of a lawful investigation

at the time she removed Cole from the car to prepare to conduct a patdown search

for weapons, Cole’s actions in flicking the bag of drugs underneath his car

constituted a voluntary act of abandonment, and the seizure of those drugs was

lawful. The fact that these drugs were recovered after the search of Cole’s person



                                        12
revealed drugs in his sock is of no moment, as the seizure of the drugs underneath

the car was lawful and not the product of any police misconduct. Under these

circumstances, the drugs already found on Cole’s person would have inevitably

been discovered in the course of a lawful search incident to arrest and are thus not

subject to suppression.

      Reversed in part, affirmed in part, and remanded for a new trial.




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