R.F., A CHILD v. STATE OF FLORIDA

       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                              R.F., a child,
                               Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D20-390

                           [October 28, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stacy Ross, Judge; L.T. Case No. 19-002405DLA.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   R.F. appeals the denial of his motion to suppress physical evidence.
Because we conclude appellant was not seized for Fourth Amendment
purposes where the deputy used a spotlight and a flashlight to illuminate
his approach of appellant, we affirm the denial of the motion to suppress.

                          Statement of Facts

   Appellant was charged by petition for delinquency with carrying a
concealed firearm. He moved to suppress the physical evidence against
him, arguing that the firearm was seized during an illegal stop.

   At the suppression hearing, a deputy testified that around 2:00 a.m. on
July 20, 2019, he was conducting a routine patrol of his assigned area in
Pembroke Park. The area is known as a high-crime area for vehicle
burglaries. The deputy testified that approximately thirty-one vehicle
burglaries were reported in the area in the two months prior to his patrol
that night.
   While on patrol, the deputy observed a white Mercedes Benz parked
adjacent to an apartment building. The vehicle caught the deputy’s
attention because, although it was backed into a parking space, it abutted
“halfway into the access road” to the apartment complex. The deputy
acknowledged that the vehicle was not parked in violation of any traffic
law. The vehicle was turned on and running. He observed appellant
seated in the driver’s seat of the vehicle and another male in the passenger
seat.

    The deputy parked his marked patrol car about two spaces west of the
Mercedes. The deputy’s car did not block in the Mercedes or otherwise
prevent it from leaving. The deputy did not turn on his vehicle’s emergency
lights or sirens but activated the scene light for illumination of the area.

    The deputy, who was wearing his uniform, approached the driver’s side
of the Mercedes with a flashlight in his hand and shined the light into the
vehicle’s driver-side door window. Appellant rolled down the car window
at the deputy’s approach. The deputy noticed a strong smell of burnt
marijuana coming from within the vehicle. He also observed appellant’s
companion drop his hand down beneath his seat and heard what sounded
like a heavy object hitting the floor of the Mercedes. This aroused his
suspicion that there were weapons in the vehicle.

   The deputy asked appellant if he knew anyone at the apartment
complex. Appellant responded that he knew somebody. At this point, the
deputy told appellant that he smelled marijuana. He also observed a
green, leafy substance on the center console that appeared to be
marijuana. He then asked for identification from both appellant and his
companion. Appellant did not have identification with him so he gave the
deputy his name instead. The deputy ran a search on appellant’s name
and confirmed appellant’s identity and that appellant was in legal
possession of the vehicle. The deputy then searched appellant and his
companion, as well as the Mercedes. He found two firearms and a bag of
marijuana. One firearm was located under the driver’s seat. The other
was located under passenger seat.

   At the conclusion of the hearing, the trial court denied the motion to
suppress. The court found that the consensual encounter became an
investigatory stop only after appellant rolled down his window and the
deputy smelled marijuana and saw it in plain view. The court found the
deputy’s testimony to be credible and that the deputy turned on the
overhead lights and used the flashlight for safety.



                                     2
   Appellant entered a no contest plea and reserved the right to appeal.
The trial court withheld adjudication and sentenced him to fifteen days
secure detention and probation.

   On appeal, appellant argues that the trial court erred in denying his
motion to suppress. Appellant claims that the deputy illegally stopped
him—without any reasonable suspicion of criminal activity—when the
deputy activated a scene light and shined a flashlight through appellant’s
vehicle window. The key issue in this case then is whether the deputy’s
approach of the parked vehicle amounted to an investigatory stop. We
hold that it does not.

                          Standard of Review

    “A trial court’s ruling on a motion to suppress comes to the appellate
court clothed with a presumption of correctness and the court must
interpret the evidence and reasonable inferences and deductions derived
therefrom in a manner most favorable to sustaining the trial court’s
ruling.” Terry v. State, 

668 So. 2d 954

, 958 (Fla. 1996). In reviewing a
motion to suppress, an appellate court presumes the trial court’s findings
of fact are correct and reverses only those findings not supported by
competent, substantial evidence. Black v. State, 

59 So. 3d 340

, 344 (Fla.
4th DCA 2011). However, an appellate court applies a de novo standard
of review to the mixed questions of law and fact that ultimately determine
constitutional issues. Schoenwetter v. State, 

931 So. 2d 857

, 866 (Fla.
2006).

             Consensual Encounter or Investigatory Stop

   The Florida Supreme Court has identified three levels of police-citizen
encounters: 1) a consensual encounter involving minimal contact during
which the citizen is free to leave; 2) an investigatory stop or detention
which requires a well-founded, articulable suspicion of criminal activity;
and 3) an arrest supported by probable cause that a crime has been
committed, or is being committed. Taylor v. State, 

855 So. 2d 1

, 14–15
(Fla. 2003).

    “During a consensual encounter a citizen may either voluntarily comply
with a police officer’s requests or choose to ignore them. Because the
citizen is free to leave during a consensual encounter, constitutional
safeguards are not invoked.” Popple v. State, 

626 So. 2d 185

, 186 (Fla.
1993). Police are not required to have a reasonable suspicion of improper
conduct to initiate a consensual encounter. 

Taylor, 855 So. 2d at 15

(citation omitted). Questioning an individual, including a police request

                                    3
for identification, does not transform a consensual encounter into an
investigatory stop. State v. Goodwin, 

36 So. 3d 925

, 926 (Fla. 4th DCA
2010).

    In distinguishing between a consensual encounter and an investigatory
stop, the central inquiry is whether, under the totality of the
circumstances, a reasonable person would feel free to disregard the police
and go about his business. State v. R.H., 

900 So. 2d 689

, 692 (Fla. 4th
DCA 2005). Circumstances that might indicate a seizure include “the
threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the officer’s
request might be compelled.” United States v. Mendenhall, 

446 U.S. 544

,
554–55 (1980).

   Courts consider the use of a police spotlight or flashlight as a factor “in
evaluating whether a person would reasonably believe he was free to
leave.” Leroy v. State, 

982 So. 2d 1250

, 1252 (Fla. 1st DCA 2008).
However, “a uniformed officer’s use of a spotlight or a flashlight, without
more, does not transform a consensual encounter into an investigatory
stop.” 

Goodwin, 36 So. 3d at 927

(emphasis in original).

    In Goodwin, this court held that a police-citizen interaction was a
consensual encounter where the uniformed officer turned on her spotlight
to see inside the defendant’s vehicle and approached the defendant with a
flashlight in her hand.

Id. This court noted

that the officer did not block
the defendant’s vehicle, turn on emergency lights, approach the defendant
with a hand on her weapon, or direct the defendant to take any physical
action other than producing his identification.

Id. We distinguished the

case from our previous holding in Williams v. State, 

874 So. 2d 45

, 47 (Fla.
4th DCA 2004), where we concluded that “a reasonable person would not
feel free to end [an] encounter and to leave under circumstances where an
officer shines a flashlight in his or her face, approaches with his hand on
his weapon, and directs him or her to stand.”

Id. (quoting Williams). We

thus emphasized that “the officer’s mere use of her spotlight and flashlight
did not transform this consensual encounter into an investigatory stop.”

Id. By contrast, in

cases where an officer’s use of a flashlight or a spotlight
contributed to a determination that a seizure occurred, there were
additional factors that transformed the encounter into a seizure. See
Smith v. State, 

87 So. 3d 84

, 88 (Fla. 4th DCA 2012) (holding that the
defendant was detained where the officer parked “catty corner” to the
defendant’s vehicle, activated his emergency lights, and used his spotlight

                                      4
to illuminate the interior of the defendant’s vehicle); 

Leroy, 982 So. 2d at 1252

(holding that the defendant was seized where an officer emerged from
“the shadows,” “lit up” the defendant’s vehicle, approached the defendant
in a confined space between two vehicles, and later testified that the
defendant was “detained for a trespass investigation”).

    Here, the trial court correctly found that the deputy’s use of the
spotlight and flashlight did not amount to an investigatory stop. Similar
to Goodwin, the deputy’s use of the spotlight and the flashlight were not
coupled with any other factors that would transform the encounter into an
investigatory detention. The deputy parked his vehicle one or two spaces
away from appellant’s Mercedes so that appellant was not blocked in and
was free to leave. He did not turn on his emergency lights. Unlike the
officer in Williams, the deputy in this case did not approach with his hand
on his weapon or direct appellant to take any physical action until after
appellant opened his vehicle window.

   The encounter became an investigatory stop when the deputy smelled
the marijuana after appellant rolled down his window. At that point, the
deputy had reasonable suspicion that a crime was being committed.
Accordingly, the deputy’s use of his spotlight and flashlight did not
transform the consensual encounter into an investigatory stop requiring
reasonable suspicion. Therefore, viewing the facts in the light most
favorable to sustaining the trial court’s ruling, the trial court did not err in
denying appellant’s motion to suppress. We affirm.

   Affirmed.

MAY and KUNTZ, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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