Motion to Supress – Stop and Frisk Law

COMES NOW the defendant, by and through his undersigned counsel, and hereby respectfully moves this Court, pursuant to Rule 3.190(g) of the Florida Rules of Criminal Procedure, to suppress the evidence seized from him, and in support thereof, states as follows:


1. The client was arrested on November 5, as a juvenile, for carrying a concealed firearm, a third degree felony, in violation F.S.§790.01(2). This firearm was in his pocket. A copy of the Arrest and Booking Report is attached as Exhibit A.
2. His case remained in Juvenile Court for several hearings, while he was released to the custody of his parents.
3. On November 15, a Juvenile Court Circuit Court Judge conducted a detention hearing and ordered the release of the client to his parents. The client’s father is an active duty Chief in the United States Navy, where he has honorably served for the last 24 years. The client’s mother had been employed at a bank in their Marketing Department for the six (6) proceeding years. Both parents appeared, with the father in uniform, at the detention hearing. In substance, the Judge ruled that if his father was willing to assure the Court that his son would comply with all court hearings, he would trust the father who was entrusted with the defense of our country.
4. Notwithstanding the long pendency of this case in Juvenile Court, on December 20, after some six (6) appearances in juvenile court, the State obtained an adult warrant for the arrest of the client. He was arrested in open court, in the presence of the Honorable Judge, and both of the client’s parents, and was removed from the juvenile court proceedings for the proceedings in adult court.
5. The parties and the Judge were startled by the adult arrest of the client. The Judge clearly explained, on the record, that many cases in his division involve concealed firearms, and many of them are placed on probation. A copy of the transcript of that proceeding is attached as Exhibit B. (the client has no criminal history, so that cannot be the explanation for the unexpected decision to direct file.) The Judge’s concern for the direct filing was so strong that he made these points:
a. “direct filing a third degree felony is terrible;”
b. “we have dozens of boys in this division and elsewhere who are on probation in juvenile court for carrying a concealed firearm;”
c. “a writ of habeas corpus is alive and well in Florida;”
d. “the judge in that [adult] division has the discretion to send it back to juvenile court;” and
e. “in my judgment, it [direct filing] is unwarranted.”
6. The State agreed to bond conditions in the adult proceedings and the client was again released to his parents, where he remains in full compliance with all conditions of release and is dutifully attending school.
7. Undersigned counsel subsequently has attended five (5) pretrial hearings in the adult court matter. Negotiations with the State have been held in an effort to seek the client’s return to Juvenile Court, as this Honorable Court has been advised on a couple of occasions. That return to Juvenile Court would have required the client to waive any suppression grounds. Unfortunately, the terms sought by the State with regard to a referral back to Juvenile Court would apparently involve a 6-9 month commitment, even though the client has been at liberty, and in custody of his parents, without incident, for the past five (5) months, and even though the client has absolutely no criminal history whatsoever. Thus, regretfully, the return to Juvenile Court pursuant to negotiations with the State Attorney’s Office have not reached fruition.
8. As a result of the inability to amicably resolve this case with juvenile sanctions, this motion respectfully seeks an order from this Honorable Court to suppress the evidence in the client’s case.


9. The client and his friend were both lawfully present at the apartment complex at the time of his encounter with the police, and his arrest. His friend’s aunt lived at the apartments.
10. Officers L. and R. were both Jacksonville Sheriff’s Officers, but were employed on that day as off duty security guards for the apartment complex. Ex. C at 8:1-8 and Ex. D at 7:20-23.
11. The client and his friend were standing in the vicinity of apartment building 33 when the officers approached, both in separate vehicles. Ex. C at 14:1-3 and 15:6-7. Officer L. was in a marked car. Ex. C at 14:20-21. Officer R. was in an unmarked car. Ex. D at 9:8-12. Both were in uniform. Ex. C at 15:1-5 and Ex. D 9:13-16. The officers testified they saw the boys standing there, and, perceiving that they appeared to be under the age of 18, approached to inquire them about a possible truancy matter. Ex. C at 26:2-3 and Ex. D at 26:21-23.
12. The client’s school would have released him at 1:16 p.m. at the time of this November 5 incident. However, the officers did not approach the client until 1:23 p.m. – some seven minutes after he would have been released from school. Indeed, the arrest was at 1:30 p.m. – which is 14 minutes after school was out. His school is located close to the apartment complex.
13. The officers had no lawful reasonable suspicion that the client was truant at the time of their confrontation with him, for, inter alia, the following reasons:
a. As noted, the client’s school day was over, several minutes prior to his encounter with the police.
b. The officers had no idea whether or not the boys had graduated high school.
c. They had no idea whether the boys were home schooled.
d. The officers had no idea whether the boys had permission to be out of school.
e. The officers had no idea as to whether the boys had been suspended or expelled from school.
f. The officers had no idea as to whether the boys were in the presence of a parent or legal guardian.
14. The sole factor upon which the officers relied to assert a claim they had reasonable suspicion the client was truant was their perception that the boys appeared to be under the age of 18. The first question asked by the officers was whether or not the boys had identification. Ex. C 17:3-5 and Ex. D 23:2-4. Both responded no, although the client was searching his pockets to see if he had any.
15. When Officer L. saw the client as he “attempted to place his right hand in his pocket,” Officer R. grabbed the client’s wrist, made him put his hands behind his back, held both of the client’s hands, and proceeded to pat him down. Ex. D 22:12-22. During the pat down, Officer R. felt what he believed to be a handgun in his right front pocket. Ex. D 22:17-19. He immediately placed the client in handcuffs and then searched him, recovering a small 22 caliber Derringer style handgun. Ex. D 36:17-20. During this encounter, Officer L. was facing the boys, while standing close to them, and Officer R. walked around the back of the boys, where he grabbed the client. Ex. C 18:13-25 and 19: 1-2.


16. JSO procedures on truancy investigation require the officers to determine “in which school the juveniles are enrolled.” A copy of the JSO truancy procedures are attached hereto as Exhibit E. In contravention of the JSO policy, at no time was the client asked in which school he was enrolled.
17. In addition, the JSO truancy policy requires the officer to determine “the school hours” – and allows the officers to detain juveniles “up to one hour before school ends [if they are truant] without a justifiable reason.” Again, the client was never asked such a question, nor was the answer determined. Indeed, as noted, the officers encountered the client after he was lawfully out of school – not before he got out of school. Thus, under their own policy, the officers had no authority to detain him – even if they had properly ascertained the school attended by the client, and the time he got out of school.
18. In summary, prior to the search of the client, the officers had no well-founded suspicion of truancy.
19. Under the F.S.§901.151, the Florida Stop and Frisk Law, officers are permitted to detain a person under circumstances which reasonably indicate they are committing a violation of the criminal laws. Of course, truancy is not a crime. Thus, the officers had no authority to detain the client under that statute.
20. Moreover, even if the officers had lawfully detained the client under the statute, unless they had probable cause to believe that he was “armed with a dangerous weapon,” they had no authority to search him. The officers testified that they had no such probable cause. Ex. C 41:19-24 and Ex. D 37:17-25. Thus, that illegal search must be suppressed, by operation of the Stop and Frisk Law itself. F.S.§901.151(6) specifically provides that evidence obtained in violation of the Stop and Frisk Law must be suppressed – a part and aside from other applicable Fourth Amendment case law.
21. The State relies on the fact that the client had his hand in his pocket at the time of the search. However, that is not correct, as the Arrest Report notes, and as confirmed by the testimony of the officers. At worst, the client “attempted to place his right hand in his pocket.” His hand never made it into his pocket. Indeed, he was taken into custody by Officer R. and his hand was grabbed, by the wrist, with only a portion of the client’s hand in his pocket, and his hand was forcibly placed behind his back – prior to him placing his hand in his pocket.
22. Moreover, even if the client had placed his hand (or both hands) in his pocket(s) during a stop for a non-criminal infraction, that does not justify reasonable suspicion for the police to conduct a pat down or a search. D.B.P. v. State, 31 So. 3d 883 (5th DCA 2010). Indeed, the facts in D.B.P. v. State are virtually identical to ours, including the following:
a. Juvenile put both hands in pocket, when the officer approached him (and looked nervous).
b. Officer told juvenile to take hands out of pockets – but he did not do so.
c. When the child failed to remove his hands from his pockets, the officer had him place hands above his head, then patted him down, and felt the handle of a handgun – then took him into custody.
23. The court in D.B.P. held that these factors did not justify reasonable suspicion for the police to conduct a pat down or a search. Id. The court specifically stated, “The mere thrusting of one’s hand in one’s pocket in front of a police officer does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous.” That holding applies in this case, a fortiori, given the fact that the officers never even instructed the client to remove his hand, and the client only had a portion of one hand in his pocket – not two. Indeed, he was lawfully looking for a possible identification. Instead of ordering the client to remove the portion of his hand that was entering his pocket, the officers took him into custody immediately, and searched him.
24. Here, the officers testified that they observed no bulge in the client’s pocket. Ex. C 47:5-8 and Ex. D 36:11-15. Thus, they had no “objective indication that the juvenile was carrying a weapon in his pockets.” D.B.P. v. State, at 4.
25. There are countless “hands in pocket” cases that contain the same holding. For example, in State v. Barnes, 979 So. 2d 991 (Fla. 4th DCA 2008) even though the defendant was nervous and had his hands in his pocket, the officers could not properly believe that he was armed or dangerous. Id. As in this case, the officer did not observe a bulge in Barnes’s pocket, nor did Barnes engage in any violent behavior that could give rise to a reasonable belief that a weapon might be present. Id.
26. Similarly, in Ray v. State, 849 So. 2d 1222 (Fla. 4th DCA 2003) the deputy testified that Ray was reluctant to remove his hands from his pockets. The court held that was insufficient to establish a reasonable suspicion that Ray was armed with a dangerous weapon. Id.
27. In E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991), the officer expressed concern that E.H. kept reaching into his pocket, but as in this case, there was no testimony that the officer observed a bulge in E.H.’s pocket or made any other observations which caused him to believe that a dangerous weapon might be present. Id. The court held that the officer did not have probable cause to believe E.H. was armed with a dangerous weapon. Id.
28. In Delorenzo v. State, 921 So. 2d 873 (Fla. 4th DCA 2006) an officer saw Delorenzo put his hand in his pocket, but did not see a bulge in his pocket and saw no threatening gesture. The court held the officer had no reasonable basis to fear for his safety, and the stop was illegal. Id.
29. In summary, in the instant case, the officers had no articulable reasonable suspicion to conclude that the client was truant. Even if they possessed such suspicion, truancy is not a crime and they were obliged to ask appropriate questions before taking the client into custody (which would have revealed that his school was already out and they could not have taken him into custody). Their custodial pat down and search of him violated both the Stop and Frisk Law as well as the case law noted above, and detaining and searching the client was done without just cause.

WHEREFORE, respectfully it is requested that this Motion be granted and the evidence seized from the client at the time of his arrest be suppressed.