final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-25699 Milton Hirsch, Judge.
Jo Bondi, Attorney General and David Llanes, Assistant
Attorney General, for appellant.
J. Martinez, Public Defender and Howard K. Blumberg, Special
Assistant Public Defender, and Yamila Lorenzo and Shannon
McGee, Certified Legal Interns, for appellee.
ROTHENBERG, C.J., and SALTER and SCALES, JJ.
State of Florida appeals a circuit court order (the
"Suppression Order") granting a motion to suppress
physical evidence on the basis of an unlawful pat-down search
of the appellee, Curtis Maxwell. We reverse.
The Record-Detention, Pat-Down Search, and Arrest
December 26, 2016, at around midnight, officers Lee Clair and
Kraig Bryan of the Miami Beach Police Department responded,
within twenty to thirty seconds, to a dispatch call regarding
a large fight at the TGI Fridays at 500 Ocean Drive. The
dispatch call had advised "that it was a very large
fight involving many people with tables and chairs being
arrival to the scene, the officers were flagged down by a TGI
Fridays waiter, who pointed to a nearby group of people who
were walking northbound on Ocean Drive. The waiter said that
the group was involved in the fight, but did not tell the
officers whether the group was involved as perpetrators or
victims. The group consisted of eight to ten people,
including Mr. Maxwell, at least three young men, and four or
five young women. There were no other persons between the
waiter and the group.
to the tip, officers Clair and Bryan approached the group on
their Department all-terrain vehicles (ATVs). Both officers
were in uniform. Neither had activated their
Department-issued body cameras at that time.
Clair testified Mr. Maxwell and a woman accompanying him made
eye contact with the officers and one of the women in the
group grabbed Maxwell in an attempt to run northbound on
Ocean Drive. Officer Bryan, however, testified only that the
persons in the group were walking fast when the officers
approached; he told them to stop, and they did.
Clair testified that his attention was quickly drawn to Mr.
Maxwell, because he was one of the two persons in the group
"trying to move quick at the time just prior to being
stopped, " and after that because he "began to act
nervous. He was looking around, avoiding eye contact, and
then he began to touch his jacket pocket." Officer Clair
said that Mr. Maxwell was dressed in a "big heavy
jacket" and he touched it with his right hand and then
he would touch the same side with his left hand, "which
is across his body which seemed out of context."
observing Mr. Maxwell repeat these touches to his jacket,
Officer Clair suspected that Mr. Maxwell was carrying a
weapon and "had him walk over so I could conduct a pat
down for weapons." Officer Clair testified that his
suspicions were raised because Mr. Maxwell's repeated
touches to his jacket were "not a natural behavior that
people do, " and because he had been trained "when
people carry a firearm they subconsciously touch the firearm
whether it be with their arm or their hands."
Clair asked Mr. Maxwell to step over to his ATV, "and he
hesitated he kept his arms at his side" when asked three
times to put his arms on the officer's ATV so his hands
would be on it. Officer Clair finally placed Mr.
Maxwell's hands on the ATV and conducted the pat search.
When he touched the right side of Mr. Maxwell's jacket,
"I immediately felt the firearm."
Bryan then came over to remove the firearm from Mr.
Maxwell's jacket. During a further pat down of Mr.
Maxwell, a bag of marijuana was recovered. Mr. Maxwell was
arrested and ultimately charged with ...