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D.O. v. State

Florida Court of Appeal, Third District

December 21, 2011

D.O., a juvenile, Appellant,
v.
The STATE of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge.

Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.

Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.

WELLS, Chief Judge.

Affirmed. See E.P. v. State, 997 So.2d 1240 (Fla. 3d DCA 2008) (citing Jackson v. State, 791 P.2d 1023 (Alaska Ct.App.1990)(" in the case of transportation in a

Page 788

police vehicle, however, or in the analogous circumstances here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person" ), In re Kelsey, 243 Wis.2d 422, 626 N.W.2d 777 (2001), and State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993)).

EMAS, J. specially concurring.

I concur in affirming the trial court's order denying the motion to suppress, but write to explain my reasons for doing so.

The relevant facts are not in dispute: A patrol officer in a marked police car observed D.O. walking with a group of five other juveniles. It was a school day, during school hours, and the juveniles were not walking in the vicinity of a school, carrying any books or book bags, or wearing any clothing that would readily identify them as students.

The officer approached the group and began to question them about their age and why they were not in school. After determining that D.O. was sixteen years old and should have been in school, the officer prepared to take D.O. back to school (or to his home, if he was suspended from school). Before placing D.O. in the back of the patrol car, the officer conducted a pat-down search of D.O.'s outer clothing. The officer did not have D.O.'s consent to do so, and the officer acknowledged that he had no reasonable suspicion to believe that D.O. was armed. The officer testified that he conducted a pat-down search because it is department policy to pat down any person before placing them in a patrol car, for officer safety. Upon conducting the pat down, the officer felt a " bulge," which D.O. told the officer was a firearm. The officer retrieved the firearm and D.O. was charged with carrying a concealed firearm.

D.O. filed a motion to suppress, arguing that the existence of a departmental policy does not provide the necessary basis to justify a pat-down search of a juvenile who is being transported based on truancy, which is not a criminal offense. D.O. argues that, because the officer had no reasonable suspicion that D.O. was armed, the pat-down search violated D.O.'s Fourth Amendment rights, and the firearm must be suppressed.

The trial court denied the motion to suppress, and D.O. entered a plea reserving the right to appeal the denial of this dispositive motion.

Thus, the issue presented is this: upon lawfully taking a juvenile truant into custody pursuant to its duty under section 984.13, Florida Statutes, may a police officer conduct a limited pat-down search for weapons, even in the absence of reasonable suspicion to believe the juvenile is armed, before placing the juvenile in a police vehicle for the purpose of delivering the juvenile without unreasonable delay to the appropriate school system site?

In order to properly analyze this particular search, we must first review the relevant statutory scheme. Chapter 984 (entitled " Children and Families in Need of Services" ) creates a broad array of services available to children and families in need of services and imposes a variety of duties upon state agencies to achieve several important goals. This chapter includes providing services for child runaways, children locked out of their home, children beyond the control of their parents, and habitual truants. See ยง 984.03(9), (25), and (27), Fla. Stat. (2011).

Section 984.13 was created to authorize and obligate law enforcement officers to serve as the initial contact point for children who may be in need of these services. That section provides:

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(1) A child may be taken into custody [1]:
(a) By a law enforcement officer when the officer has reasonable grounds to believe that the child has run away from his or her parents, guardian, or other legal custodian.
(b) By a law enforcement officer when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his or her parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site. For the purpose of this paragraph, " school system site" includes, but is not limited to, a center approved by the superintendent of schools for the purpose of counseling students and referring them back to the school system or an approved alternative to a suspension or expulsion program. If a student is suspended or expelled from school without assignment to an alternative school placement, the law enforcement officer shall deliver the child to the parent or legal guardian, to a location determined by the parent or guardian, or to a designated truancy interdiction site until the parent or guardian can be located.
(c) Pursuant to an order of the circuit court based upon sworn testimony before or after a petition is filed under s. 984.15.
(d) By a law enforcement officer when the child voluntarily agrees to or requests services pursuant to this chapter or placement in a shelter.
(2) The person taking the child into custody shall:
(a) Release the child to a parent, guardian, legal custodian, or responsible adult relative or to a department-approved family-in-need-of-services and child-in-need-of-services provider if the person taking the child into custody has reasonable grounds to believe the child has run away from a parent, guardian, or legal custodian; is truant; or is beyond the control of the parent, guardian, or legal custodian; following such release, the person ...

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