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State v. Maxwell

Florida Court of Appeals, Third District

May 9, 2018

The State of Florida, Appellant,
v.
Curtis Maxwell, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-25699 Milton Hirsch, Judge.

          Pamela Jo Bondi, Attorney General and David Llanes, Assistant Attorney General, for appellant.

          Carlos J. Martinez, Public Defender and Howard K. Blumberg, Special Assistant Public Defender, and Yamila Lorenzo and Shannon McGee, Certified Legal Interns, for appellee.

          Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

          SALTER, J.

         The 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.

         I. The Record-Detention, Pat-Down Search, and Arrest

         On 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 thrown."

         Upon 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.

         Responding 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.

         Officer 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.

         Officer 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."

         After 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."

         Officer 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."

         Officer 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 ...


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