        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                              T.M., a child,
                                Appellee.

                             No. 4D17-2735

                             [June 27, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael J. Orlando, Judge; L.T. Case No. 17-1507 DL.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellant.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellee.

LEVINE, J.

   It was 8:00 p.m. when a Lauderhill detective observed appellee and two
other males standing in front of a vacant townhouse. The detective, who
was on routine patrol, continued to watch appellee and the other two
individuals. After five minutes, the detective pulled his car up beside
appellee and the other two individuals, who remained standing outside the
vacant house. The detective greeted the group using a “soft voice.”

   Upon seeing the detective approach, appellee and the other two
individuals fled. They ran through the parking lot as the detective
commanded them to stop. But they did not stop—they kept running.
During the pursuit, the detective saw appellee reach into his pocket and
retrieve a clear plastic bag which he threw onto the ground. The detective
finally caught up with appellee, took him into custody, and recovered the
plastic bag. The contents of the bag tested positive for cocaine.

   At the hearing on appellee’s motion to suppress, the detective testified
that he had participated in “many operations” in and near the townhouse
community where he saw appellee the day of the arrest. Based on his
experience as a narcotics officer for several years and the totality of the
circumstances, the detective believed the plastic bag discarded by appellee
contained narcotics as soon as he saw it. He explained that, in his
experience, clear plastic bags like that one are “indicative of holding
narcotics.”

   After the suppression hearing, the trial court granted appellee’s motion
to suppress the bag as the fruit of an unlawful search and seizure. We,
however, conclude that the trial court erred in granting the motion to
suppress and as such we reverse and remand.

   We review an order on a motion to suppress by applying a mixed
standard of review, deferring to the trial court’s factual determinations but
reviewing de novo its application of the law to the facts of the case. Lee v.
State, 868 So. 2d 577, 579 (Fla. 4th DCA 2004).

   The trial court found that the detective lacked reasonable suspicion to
stop appellee. This conclusion was based in part on the trial court’s
erroneous interpretation of R.R. v. State, 137 So. 3d 535 (Fla. 4th DCA
2014). 1   The state contends that there was reasonable suspicion.
Alternatively, the state argues that even if there was no reasonable
suspicion, appellee’s flight after an officer’s command to stop and his
subsequent abandonment of the contraband does not constitute an
unlawful seizure.

   We agree with the state’s alternate theory that contraband abandoned
during flight from the police is not fruit of an improper seizure and thus
not subject to suppression. Due to our agreement, there is no need to
determine if there was in fact reasonable suspicion to stop appellee before
he discarded the bag.

   Both Florida and federal courts have held that reasonable suspicion
can arise after a suspect’s flight and that illegal contraband abandoned


1  While not dispositive of the issue on appeal, it appears that the trial court
misread R.R. to create a “holiday season exception” to what circumstances give
rise to reasonable suspicion. In R.R., we merely noted that the defendant was
seen walking around cars in a parking lot four days after Christmas. Our opinion
lists the holiday season and Christmas as potential factual circumstances that
the trial court could look at to determine if there was “sufficient reason to conduct
an investigatory stop”—not as factors that would lower the reasonable suspicion
bar ab initio or create a new exception to the quantum of evidence needed to meet
the reasonable suspicion standard. Id. at 539.


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during flight from police is not properly suppressed as the fruit of a seizure.
In California v. Hodari D., 499 U.S. 621, 629 (1991), the United States
Supreme Court held that, for Fourth Amendment purposes, the defendant
was not seized by police until an officer physically caught up with and
restrained him after a chase. As such, the rock of cocaine the defendant
tossed away mid-run was not the fruit of any unlawful seizure and should
not have been suppressed. Id. Moreover, the Supreme Court in Hodari
D. noted that, if the officer recognized the rock as a rock of cocaine at the
time it was discarded, reasonable suspicion would have attached at that
point anyway. Id. at 624. Hodari D. is controlling law in this state
pursuant to the conformity clause of the Florida Constitution. See art. I,
§ 12, Fla. Const. (“The right of the people to be secure . . . against
unreasonable searches and seizures . . . shall be construed in conformity
with the 4th Amendment to the United States Constitution, as interpreted
by the United States Supreme Court.”).

    This court has reached similar conclusions when a defendant discards
an item of contraband while fleeing from police. In Mosley v. State, 739
So. 2d 672, 674 (Fla. 4th DCA 1999), a defendant began to walk away
when he saw police approaching him. The officers pursued the defendant
and yelled for him to stop, whereupon he reached into his pocket and
discarded an object that both officers immediately recognized as a cocaine
pipe. Id. We held that the officers developed reasonable suspicion once
they recognized the pipe. Id. at 675. We also reversed a suppression order
in State v. Grant, 845 So. 2d 984, 985 (Fla. 4th DCA 2003), because the
officer immediately recognized a crack pipe discarded by the defendant.

   Based on Hodari D., Mosley, and Grant, the trial court erred in
suppressing the plastic bag as the fruit of an unlawful seizure. Once
appellee abandoned the bag—which the detective, based on the totality of
the circumstances and his experience, believed contained drugs—the
police could lawfully seize it and later introduce it into evidence. For the
foregoing reasons, we reverse.

   Reversed and remanded.

WARNER and TAYLOR, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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