Opinion
Case No. 5D18-2766
07-12-2019
STATE OF FLORIDA, Appellant, v. MAURICE LEE WILLIS, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and George D. E. Burden, Assistant Public Defender, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Orange County, Kim Shepard, Judge. Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and George D. E. Burden, Assistant Public Defender, Daytona Beach, for Appellee. HARRIS, J.
The State timely appeals the trial court's order granting Maurice Lee Willis' dispositive motion to suppress. The State argues that, based upon the totality of the circumstances, the police officers had reasonable suspicion to temporarily detain Willis to investigate the officers' legitimate concerns that Willis was mentally unstable and posed a danger. Agreeing with the State that there was reasonable suspicion to support the investigative stop, we reverse.
The facts adduced at the suppression hearing are undisputed. On April 21, 2018, a christening ceremony was taking place at a church in Winter Garden, FL. During the ceremony, attended by a small group of friends and family, parishioners observed a male, who was not a party to the christening, sitting alone in the back of the church. Making this individual appear even more suspicious was the fact that he was wearing a bulletproof vest over his clothing. Concerned parishioners called 911 and law enforcement officers responded.
Officer Hernandez, the first to arrive on scene, spoke with Michelle Rosado, one of the members of the church who advised Hernandez that there was a "suspicious" man wearing a bulletproof vest. Rosado pointed to the man, later identified as Maurice Willis, sitting on one of the pews of the church, still wearing a bulletproof vest. Hernandez attempted to approach Willis, but as the officer approached, Willis got up and walked out. Hernandez's body camera footage was entered into evidence. As Hernandez followed Willis out of the church, she asked, "hey, are you alright?. . . what's with the vest?" Willis responded that he was okay and he wore the vest for protection. He attempted to walk away again while asking whether it was against the law to wear a bulletproof vest. Hernandez responded that it was not but to "hold up" so that she could talk to him to make sure everything was okay.
Hernandez testified that, at that point, she was concerned about Willis' mental capacity and contemplated Baker-Acting him. Hernandez stated that she was also concerned for the safety of those in the church because Willis could have been armed and she wanted to know why he was wearing a bulletproof vest. Hernandez testified that the answers Willis provided to her questions did not make sense and did not alleviate any of her concerns. Hernandez again asked Willis why he was wearing the vest. In response, Willis voluntarily took out his wallet and asked Hernandez if she needed to see his identification. Willis denied having any weapons on his person. After providing his social security card as his only identification, Willis stated that he wore a vest because he felt like he was being followed and that he came to the church every day wearing his bulletproof vest. Hernandez reminded Willis that there was "a lot of crazy stuff going on in churches now" and that it was "not normal for an everyday person to be wearing a vest and going to church."
As Officer Woodcox arrived on scene, Hernandez told Willis to speak to him and that she would let him "go in a sec" so that she could speak to Rosado, the original 911 caller. Hernandez testified that this was a request and not an order. Willis did not ask for his social security card back and he was not handcuffed or otherwise physically restrained. However, Hernandez testified that Willis did not dissuade her fears about him being armed or his mental capacity. Hernandez testified that when she walked away from Willis, he was not free to leave.
Officer Woodcox's bodycam video was entered into evidence. Woodcox began asking Willis why he was wearing the vest and Willis gave the same response given to Hernandez. The bodycam footage showed another officer, Officer Valasquez, asking Willis if he had anything in his pockets. Valasquez testified that as he approached Willis, he observed a large bulge in Willis' front left pocket, which Valasquez believed to be a weapon. Valasquez was concerned because, given the time of year and the heat, and "this day and age," it was not normal for someone other than law enforcement to wear a vest in public. As reflected in the bodycam footage, Valasquez grabbed Willis' wrist and advised Willis that he was not going to search him, but that he wanted to pat him down for safety. Willis refused.
Officer Cook was the next on scene. She also testified that it was not normal for someone to walk into a public place wearing body armor outside of their clothing and that doing so was indicative of an active shooter situation. Cook also observed a large bulge in Willis' left front pocket and did not believe permission was required to pat Willis down in light of his suspicious behavior of openly wearing a bulletproof vest in a church where no one recognized him as well as his attempt to avoid contact with law enforcement. As Cook grabbed Willis' wrist, she looked down at his pocket and saw the hammer and grip of a gun. Willis was immediately placed in handcuffs.
In argument on the motion to suppress, Willis argued that Hernandez's statement to Willis to "hold up" after Willis clearly attempted to leave was a seizure. Willis further argued that he gave his social security card to Hernandez because he felt that he was being stopped by law enforcement. Moreover, Willis argued that Hernandez did not have reasonable suspicion to stop him. The trial court granted Willis' motion, suppressing the firearm found in Willis' pocket, as well as an additional magazine, ammunition, and the bullet proof vest Willis was wearing. This appeal followed.
We review a suppression order to determine whether competent, substantial evidence supports the trial court's findings of historical fact. State v. Roman, 983 So. 2d 731, 734 (Fla. 3d DCA 2008). "It has also been observed, however, that to the extent a ruling is based on an audio recording, 'the trial court is in no better position to evaluate such evidence than the appellate court, which may review the tape for facts legally sufficient to support the trial court's ruling.'" Bailey v. State, 31 So. 3d 809, 812 (Fla. 1st DCA 2009) (citing Dooley v. State, 743 So. 2d 65, 68 (Fla. 4th DCA 1999)). We review that evidence and any inferences from it in favor of supporting the trial court's ruling. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). We must "independently review mixed questions of law and fact that ultimately determine constitutional issues." Schoenwetter v. State, 931 So. 2d 857, 866 (Fla. 2006). The trial court's application of law to the facts in a finding as to reasonable suspicion, or the lack thereof, is subject to de novo review. State v. Cruse, 121 So. 3d 91, 95 (Fla. 3d DCA 2013) (citing Ornelas v. United States, 517 U.S. 690, 697 (1996)).
In Popple v. State, the court identified three levels of police-citizen encounters. 626 So. 2d 185, 186 (Fla. 1993). The first level, a "consensual encounter," involves minimal police contact and does not invoke constitutional safeguards. Id. During a consensual encounter, an individual is free to leave at any time and may choose to ignore the officer's requests and go about his business. Id. The second level is an "investigatory stop," during which an officer "may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime." Id. (citing § 901.151, Fla. Stat.). While mere suspicion is insufficient to support an investigatory stop, a stop will not violate a citizen's rights where it is based on "a well-founded, articulable suspicion of criminal activity." Id. at 196 (citing Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984)). The third level of police-citizen encounter is an arrest, which requires probable cause on the part of the officer that a crime has been, is being, or is about to be committed. Id. (citing Henry v. United States, 361 U.S. 98 (1959); § 901.15, Fla. Stat.).
A police-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. Rachel v. State, 987 So. 2d 1281, 1283 (Fla. 4th DCA 2008). The Florida Supreme Court adopted a four-factor analysis to determine whether a reasonable person would consider himself to be in custody under the totality of the circumstances. Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999). Factors to be considered are:
(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.Id. (citing State v. Countryman, 572 N.W. 2d 553, 558 (Iowa 1997)).
The trial court correctly found that Hernandez continuing to pursue Willis after he attempted to walk away and subsequently directing him to speak to another officer constituted a stop. Where an officer makes a show of authority, such as a "request" for the defendant to remove his hands from his pockets, such show of authority may convert the consensual encounter into a stop. See, e.g., Neeley v. State, 112 So. 3d 764, 766 (Fla. 2d DCA 2013) ("Officer Hilton's instruction to Mr. Neeley to 'stand by' was a detention because a reasonable person under the circumstances would not feel free to leave or to disregard the instruction."); Gentles v. State, 50 So. 3d 1192, 1197 (Fla. 4th DCA 2010) (holding consensual encounter became stop when officer directed defendant to shut off car's engine as this "constituted a show of authority which restrained the defendant's freedom of movement"). Moreover, Hernandez testified that at that time, Willis was not free to leave. A reasonable person would not feel free to leave where, after ignoring one officer and walking away, that officer continues to pursue the individual and requests him to "hold up" and then directs him to speak to another officer. Thus, the trial court did not err in finding that the stop was a seizure under the Fourth Amendment.
The trial court, however, incorrectly found that Hernandez did not have reasonable suspicion to conduct the stop. The court reasoned that there was no testimony that Hernandez observed a bulge that would lead her to have further concerns that a crime had occurred or was about to occur. The court found that Hernandez had the opportunity to dispel any concerns she may have had when she spoke directly to Willis and asked if he was okay and why he was wearing the bulletproof vest. The court further found that there was no testimony that Willis exhibited any odd behavior, furtive movements, or that he refused to engage in conversation or respond to the officer's reasonable questions.
The trial court's findings are not only unsupported by the evidence, they are directly contradicted. Hernandez specifically testified that Willis' answers to her questions did not alleviate her concerns that he might be armed. Moreover, Hernandez testified that even after Willis responded that everything was okay, she still had concerns for his mental capacity. Additionally, Willis told Hernandez that he came to that church every day wearing a bulletproof vest, even though no one at the church recognized Willis or had previously seen him.
Like the instant case, officers sometimes stop people based on reports of essentially innocent behavior. Innocent behavior will frequently provide the basis for reasonable suspicion. See United States v. Sokolow, 490 U.S. 1, 10 (1989); see also Illinois v. Wardlow, 528 U.S. 119, 125-26 (2000) (acknowledging this fact and recognizing that officer can detain individual to resolve ambiguity regarding suspicious yet lawful or innocent conduct). "[T]he relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts." Sokolow, 490 U.S. at 10 (internal quotation marks omitted). Here, the State concedes that wearing body armor is not a violation of a Florida law.
The basis for the investigatory stop was that Willis was wearing a bulletproof vest while observing a private christening. The attendees did not know Willis nor had they seen him at the church previously. Willis was sitting at the back of the church by himself, and those inside the church were aware of church shootings occurring across the United States and the world. Upon noticing law enforcement, Willis began to walk the other direction and exited the building. These facts provided law enforcement with reasonable suspicion to conduct an investigatory stop.
No Florida court has yet to address the degree of suspicion attached to the wearing of a bulletproof vest. However, the court in People v. Carvey, 680 N.E.2d 150, 153 (N.Y. 1997), noted—"[t]he act of wearing a bulletproof vest . . . suggests more than the presence of a deadly weapon—it demonstrates its owner's readiness and willingness to use a deadly weapon."
Unlike bullets, a bulletproof vest has a practical use by itself as a measure of protection. . . . Like bullets, however, the wearing of a bulletproof vest is more immediately associated with the presence and use of a firearm than an empty holster or practice target. . . . [A] bulletproof vest is designed to prevent the penetration of bullets, and there is an inherent linkage between a vest and possession of a firearm. . . . Indeed, [t]he whole purpose of the wearing of the vest is to make it more feasible to go armed, [and] to enhance the advantage of doing so.Id. (citations and internal quotations omitted).
Here, Willis wore an article of clothing that uniquely evidenced his preparation to engage in gun battle. Sheathed in this protective armor, he also suspiciously walked the other direction and exited the building as the police approached. Hernandez indicated that she had a specific fear that Willis was dangerous and she testified her suspicions were based upon her own observations. Moreover, Willis' answers to Hernandez's questions did not dissuade her fears. Hernandez had reasonable cause to believe that Willis was committing or was about to commit a crime and it was error to grant the motion to suppress. The trial court's order is reversed and the matter remanded for further proceedings.
REVERSED and REMANDED. COHEN and LAMBERT, JJ., concur.