Opinion
Case No. 3D01-905.
Opinion filed October 17, 2001.
An appeal from the Circuit Court for Dade County, Mindy Glazer, Judge. Lower Tribunal No. J00-7121.
Bennett H. Brummer, Public Defender and Lisa Walsh, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General and Michael J. Neimand, (Ft. Lauderdale), Assistant Attorney General and Angela Sharon Toro and Steven Halim, Certified Legal Interns, for appellee.
Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge.
D.N. appeals his delinquency disposition following the denial of a dispositive motion to suppress. We affirm.
The State charged D.N. by petition of delinquency with possession of marijuana. D.N. filed a motion to suppress the marijuana and a hearing was held on the matter. Miami Police Officer George Alvarez testified that while working the midnight shift, at 1:30 a.m., he noticed a white vehicle traveling east on Flagler Street towards 107th Avenue. The vehicle, in which D.N. was a passenger, rolled through a red light while making a right hand turn. The officer put his emergency lights on and over the loudspeaker ordered the vehicle to stop.
The car kept traveling and turned left on S.W. 8th Street. It began to weave and travel faster. The driver then turned into an apartment complex, turned his lights off and drove down a dead end in the complex parking lot. Officer Alvarez got out of the car with his weapon drawn and ordered D.N., to step out of the car and put his hands in the air. The officer testified:
As soon as the driver got to the rear of the vehicle, had his hands on the car, I called for the passenger to step out of the car.
The passenger got out of the car. I said let me see your hands. As he motioned to put his hands up, in the right hand I noticed an object fall to the ground right next to him.
I told him to keep your hands up, walk towards me. Same instructions that I gave the driver. Turn around, put your hands on the vehicle.
The officer specifically stated that he had told the driver and D.N. to put their hands where he could see them because he feared for his own safety. A second officer arrived and was instructed to keep an eye on the two subjects. Officer Alvarez went around the passenger side of the vehicle and saw a small baggie on the ground, containing what appeared to be marijuana. The officer retrieved the baggie, arrested the driver for fleeing, and arrested D.N. for possession.
D.N. argued for suppressing the evidence. Ignoring the illegal attempt to elude police, D.N. maintained that based on a simple traffic infraction, the officer could not, at gunpoint, order him to put his hands in the air. The trial court denied D.N.'s motion to suppress. The court found the motion dispositive and permitted D.N. to plead no contest to the charges, reserving his right to appeal. D.N. asserts that the facts at hand were not sufficient to provide the requisite founded suspicion for an investigatory stop and detention. Thus, he maintains, the evidence obtained should have been suppressed. We disagree.
D.N. also argued that he and the driver had not attempted to elude the police.
A "seizure" occurs when one's freedom of movement has been restrained, either by physical force or a showing of authority, so that the surrounding circumstances demonstrate a reasonable person would not have felt free to leave. See Terry v. Ohio, 392 U.S. 1 (1968); J.C.W. v. State, 545 So.2d 306, 307 (Fla. 1st DCA 1989). D.N. was seized, as Officer Alvarez's order for him to put up his hands was a directive that he was not free to disregard. See Dees v. State, 564 So.2d 1166, 1168 (Fla. 1st DCA 1990). To justify such a seizure, a law enforcement officer must have a founded suspicion of criminal activity. § 901.151, Fla. Stat. (2000) (Florida's Stop and Frisk Law). A founded suspicion requires a "factual basis in the circumstances observed by the officer." Gipson v. State, 537 So.2d 1080, 1081 (Fla. 1st DCA 1989). As stated in Curry v. State, 532 So.2d 1316, 1317-18 (Fla. 1st DCA 1988), an officer's assessment of the circumstances in their totality "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing."
Here, the evidence was that there was criminal activity afoot. D.N. and the driver were fleeing and eluding the police, a violation of section 316. 1935, Florida Statutes (2000). As observed in State v. McCune, 772 So.2d 596 (Fla. 5th DCA 2000), regardless of the legality of the initial stop (or attempted stop), the statutory offense of fleeing and eluding does not require the lawfulness of the police action as an element of the offense. See State v. Gandy, 766 So.2d 1234 (Fla. 1st DCA 2000) (concluding that officers had a reasonable suspicion to stop the respondent because of unprovoked flight upon noticing the police).
This criminal activity distinguishes the instant case from the suppression cases cited by D.N., such as Smith v. State, 735 So.2d 570, 571 (Fla. 2d DCA 1999), and Bowe v. State, 720 So.2d 1083 (Fla. 3d DCA 1997). In Smith the Second District held that the frisk of Smith, a passenger in a vehicle that was stopped because of a cracked windshield, was not justified. In Bowe, we concluded that an officer's observation of the male defendant in a housing project for single mothers did not justify the officer's order that the defendant open his fist. The officer acknowledged he did not see defendant commit any crime, and the officer candidly admitted that he did not believe defendant's closed fist contained a weapon. In each case, unlike the facts sub judice, police actions and resulting seizures could not be justified as being based on a reasonable suspicion that the particular individual being stopped was engaged in wrongdoing.
Finally, we point out the officer in this case did not perform a pat down or frisk. D.N. was told simply to get out of the car-clearly permissible-and open his hands-the least intrusive instruction that could ensure the officer's immediate safety. See Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999) (asking defendant to get out of the vehicle represented a de minimis intrusion upon him, as did the request for defendant not to place his hands where the deputy could not see them);King v. State, 696 So.2d 860, 862 n. 1 (Fla. 2d DCA 1997) (observing officer's safety-minded request that defendant remove his hands from his pockets was a minimal intrusion on defendant's personal freedom).
In sum, finding that the motion to suppress was properly denied, we affirm the adjudication of delinquency.