FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Robert J. Egan,
S. Purdy, Public Defender, and Shawna R. Moyers, Assistant
Public Defender, Daytona Beach, for Appellant.
Moody, Attorney General, Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona Beach, for Appellee.
N.J., a fifteen-year-old child, appeals the disposition order
in which he was found to be delinquent for possessing less
than 20 grams of marijuana. N.J. argues that the trial court
erred in denying his motion to suppress the fruits of an
illegal search. The evidence adduced at trial and the
applicable law do not support the trial court's
conclusion that the search was incidental to a consensual
encounter between Appellant and Deputy Hawthorne.
Accordingly, we reverse.
evening of April 30, 2018, Appellant and two of his teenaged
friends were walking down a sidewalk. Deputy Hawthorne, on
foot patrol in the area, approached them and told them to
stop. They did not. Appellant said, loud enough for Deputy
Hawthorne to hear, words to the effect that he did not have
to stop. Deputy Hawthorne continued walking towards them and
told them either one or two more times to stop; they finally
did. When one of the young men asked why they were in
trouble, the deputy said he was only trying to put names with
faces, that nobody said they were in trouble. Deputy
Hawthorne explained that many people in the area were on
probation and could be violating the terms of their
probation. He told the teens that they were not under arrest
but were being detained. He then segued into asking each of
the young men in turn if he had been arrested or was on
probation. Appellant's friends, who were not on
probation, were told they were free to go only after they
answered all of Deputy Hawthorne's questions.
Hawthorne's hunch that some people in the area were
violating their probation-related curfews proved correct as
to Appellant. He admitted that he was on probation, but
denied knowing he missed his 6:00 p.m. curfew as he did not
know the current time. Deputy Hawthorne then handcuffed
Appellant and placed him in the back of his squad car. The
deputy phoned Appellant's mother and told her that her
son had violated his curfew and was not at home as she
believed. Video and audio from the deputy's body camera
was introduced in evidence. Up to this point in the sequence
of events, Deputy Hawthorne had not said anything about
the deputy had Appellant exit the squad car so that he could
search him before taking him to the juvenile facility for
processing. In the course of this search, Deputy Hawthorne
found two cigarette lighters and the burnt remains of a
marijuana cigarette, a/k/a a roach, in Appellant's
pocket. After the deputy returned Appellant to the squad car,
the deputy once again phoned Appellant's mother and, on
the second call, mentioned that her son had weed in his
filed a pre-trial motion to suppress the marijuana which the
trial court initially denied as legally
insufficient. Appellant's counsel throughout the
adjudicatory hearing repeatedly argued that the marijuana had
been illegally seized as it was not a consensual encounter,
and that the deputy lacked any reasonable suspicion to
believe that Appellant or the two other teens had committed,
were committing, or would soon be committing any crime.
Before the adjudicatory hearing ended, the trial court denied
the motion to suppress and ruled that it was a consensual
encounter between the deputy and the three teenagers that led
to the discovery of the contraband in Appellant's pocket.
At the conclusion of the hearing, the court found Appellant
delinquent for possessing 20 grams or less of marijuana and
in violation of probation. At the disposition hearing, the
trial court placed Appellant on probation for eighteen months
or until age nineteen. Appellant timely appealed.
consider whether, as found by the trial court, there was a
consensual encounter between Appellant and Deputy Hawthorne,
which would support the denial of Appellant's motion to
a consensual encounter, a citizen may 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).
"[A] significant identifying characteristic of a
consensual encounter is that the officer cannot hinder or
restrict the person's freedom to leave or freedom to
refuse to answer inquiries, and the person may not be
detained without a well-founded and articulable suspicion of
criminal activity." Id. at 187-88. A consensual
encounter does not exist where a police officer attempts to
prevent a citizen from walking away. Watts v. State,
578 So.2d 437, 438 (Fla. 1st DCA 1991). What otherwise might
have been a consensual citizen encounter becomes an
investigatory stop once an officer shows authority in a
manner that restrains the defendant's freedom of movement
such that a reasonable person would feel compelled to comply.
Koppelman v. State, 876 So.2d 618, 620 (Fla. 4th DCA
2004). "[A] person is seized if, under the
circumstances, a reasonable person would conclude that he or
she is not free to end the encounter or depart."
Popple, 626 So.2d at 188.
the controlling law set forth above, the facts of this case
do not support a finding that this was a consensual citizen
encounter. The teens did not stop when first ordered to do so
by Deputy Hawthorne; in fact, Appellant loudly announced that
he did not have to stop. The group only stopped after the
second order from Deputy Hawthorne, whose specific testimony
was that he gave the teens a lawful order to stop and
detained them. Appellant was not ...