State of Florida v. Ricky Alphonso Rand

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