Kurt Erlenbach

This topic comes up with some regularity around here, so I thought you'd like to see some acutal law on the point.

Following is a decision from the Florida 2d District Court of Appeal, which is the Tampa area. The short version is that a juvenile was stopped by the police while riding on a bike path. The appellate court decided that the officer lacked sufficient suspicion that the kid had committed a crime, and the trial court should have suppressed the marijuana they found:

J.C., Appellant, v. STATE OF FLORIDA, Appellee. 2nd District. Case No. 2D08-4415. Opinion filed July 31, 2009. Appeal from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Counsel: James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

(DAVIS, Judge.) In this juvenile delinquency case, J.C. challenges his adjudication for the delinquent acts of possession of marijuana and possession of paraphernalia, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.

The charges against J.C. stem from an encounter he had with police while he was riding his bicycle on a bike path that runs parallel to a roadway. At the hearing on J.C.'s motion to suppress the physical evidence, the arresting officer testified that upon seeing J.C. riding his bike in “a high crime area,” he and the officer with whom he was riding “pulled along and asked to approach [J.C.].” There is no indication in the record of how J.C. responded. The officer went on to testify that he pulled the car over and “walked out towards the bike path where [J.C.] was at. We were in front of him. We had our range vests on, badge and made consensual contact with him.” When asked on direct examination what he said to J.C. to make contact with him, the officer testified, “We just asked him what he was doing.” However, on redirect, when asked, “Did you order him to stop when you saw him,” the officer testified, “I don't remember exactly what I said to him. I just said, ‘Hey, I've got to talk to you for a minute. Hang on.' But he could have drove off at any time.”1 Regarding whether J.C.'s way was blocked so that he could not leave, the officer testified on cross-examination, “We pulled [the car] up a ways in front of him, and we get out of the vehicle and we go to the path.” J.C. did not testify at the suppression hearing.

On appeal, J.C. argues that the trial court erred in denying his motion to suppress because the officers illegally detained J.C. without the necessary reasonable suspicion by blocking his path of travel and ordering him to “hang on.” Although we conclude that the evidence presented below does not support J.C.'s contention that the officers blocked his path, we do agree that the officers illegally detained J.C.

When reviewing a motion to suppress, the trial court's factual findings must be affirmed if supported by competent, substantial evidence, Caso v. State, 524 So. 2d 422 (Fla. 1988), while the trial courtţs application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690 (1996). Here, the trial court made the factual finding that the stop was consensual. This finding, however, is not supported by the facts.

The arresting officer testified that he told J.C., “Hey, I've got to talk to you for a minute. Hang on.” Considering the totality of the circumstances -- that two officers wearing range vests and badges pulled over, exited their car, and while approaching J.C., told him to “hang on” -- such statement amounts to an order and a show of authority. See Caldwell v. State, 985 So. 2d 602, 606 (Fla. 2d DCA 2008) (applying a totality-of-the-circumstances test to the issue of whether law enforcement's conduct amounted to “a show of authority that would have caused a reasonable person to believe that he was not free to terminate the encounter”).

[A] “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.” Parsons v. State, 825 So. 2d 406, 408 (Fla. 2d DCA 2002). In short, an investigatory stop occurs when a “reasonable person would not feel free to leave.” Hrezo v. State, 780 So. 2d 194, 195 (Fla. 2d DCA 2001).

Rios v. State, 975 So. 2d 488, 490 (Fla. 2d DCA 2007) (second alteration in original).

We conclude that a reasonable person would not feel free to walk away but rather would feel compelled to comply with a police officer's command, “I've got to talk to you for a minute. Hang on.” As such, we conclude that this was an investigatory stop for which reasonable suspicion of the commission of a crime is necessary. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (“The second level of police-citizen encounters involves an investigatory stop . . . . At this level, a police 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.”). It is undisputed here that the officers had no such suspicion. As such, the stop was illegal.

Accordingly, we reverse the trial court's disposition order and remand with instructions to grant J.C.'s motion to suppress.

Reversed. (LaROSE and KHOUZAM, JJ., Concur.)

sggoodri

This particular case has nothing to do with bikes. It would apply equally to a pedestrian.

Previous cases in other states and cities with "bell or gong" ordinances involved police who stopped and searched cyclists who did not have a "bell or gong" on their bikes. While the police were entitled to stop cyclists for non-compliance with an obsolete and silly ordinance, I believe the courts decided that the police were really using it as an excuse to perform racial profiling and unwarranted searches.

I-Like-To-Bike

But Steve! Didn't you see the the stout defense of referencing obsolete and silly ordinances by other BF posters on this list, when they believe that those obsolete or silly ordinances might somehow be used to punish cyclists that fail to give an audible warnings whenever passing any pedestrian or bicyclist?

Kurt Erlenbach

Your are completely correct. It applies to pedestrians and applies with some variations to automobile drivers. The point is that you cannot be stopped legally by the police unless they have reasoanble suspicion that you commited a crime. A whole other issue is what do you do when they try to stop you when you have committed no offense and the stop likely is illegal.

CB HI

True, but to some cops, cyclist just seem more suspicious.

mandovoodoo

And to some cyclists, cops just seem suspicious.

sggoodri

I oppose such ordinances as much or more due to my dislike of their abuse for racial profiling than for personal concern of being prosecuted over them. If I as a spandex-clad road-biking white male riding to the store in the suburbs have no realistic chance of being pulled over for such, why should a black male riding to the store in a rough neighborhood have to deal with it? At least enforcing laws like lights at night might do some good as a side effect.

BLACK BIKE

It appears that in this case their suspicions were correct.

sggoodri

I would first ask the police what they want. The could be looking for witnesses as part of a crime investigation. I would be happy to help.

If their attention was on me, and not how I could help them, and they seemed to be fishing, I would frankly ask them if I was free to go.

BLACK BIKE

Your approach is perfectly reasonable, and leaves no question to weather or not the stop is considered a seizure under the fourth amendment.

CB HI

Would we even of heard of the case if they did not find anything on this illegal stop and search? NO. So how many suspicions were they wrong on, that we never found out about?

Defending BS like this, does not improve the image of cops overall.

Carusoswi

Agreed. You cannot just stop someone on a suspicion. That's what probably cause is all about.

Caruso

BLACK BIKE

You are extremely confused.

"Reasonable Suspicion" is the level of suspicion needed to make a stop.

I don't know what "probably cause" is is.

"Probable Cause" is the level of suspicion necessary to make an arrest.

The case at hand involves officers who made a stop because they suspected that the subject was doing something illegal. During the stop, it was established that the subject was in fact doing something illegal. Based on the available information, It appears that the suspicion of the officers was reasonable and there was no violation of the fourth amendment. Your animosity toward law enforcement not change this fact.

GodsBassist

And the court said that based on the available information, it appears that suspicion of the officers didn't exist, and that the stop was illegal. In fact the only 'reason' given was that he was in a high crime area. Does that change the fact?

And don't confuse my love for liberty with animosity toward law enforcement, like you seem to have with CB HI.

CB HI

Seems the Florida 2d District Court of Appeal disagrees with your view of "Reasonable Suspicion". It would do cops well to actually learn from cases such as this.

CB HI

Are you implying that "Probable Cause" does not apply to searches?
Are you extremely confused?

BLACK BIKE

How do you figure I implied that? Do you have a reading comprehension problem? I said that probable cause is the level of suspicion needed to make an arrest. I didn't state that it is not needed to execute a warrant, although that's not the issue here. You're so full of hatred that you're loosing focus now.

BLACK BIKE

How do you figure that officers' suspicion didn't exist when it was, in fact, correct. The only thing that "didn't exist" here was the officer's ability to articulate their suspicions. If more people would learn the importance of proper report writing, the courts wouldn't be forced to hand down rulings like this. What happened here is a case of scumbag attorneys perverting our constitution in order to set a criminal free, and you call this liberty.

GodsBassist

If I think that a coin is going to land heads up and it does, it doesn't make my psychic. It makes me lucky.

If a police officer stops somebody based on nothing but a wild goose chase, and finds something, it doesn't necessarily mean he had a reasonable suspicion. It means he was lucky.


What happened here is a case of an attorney holding our officers accountable in order to protect ALL of us from spiraling into a fascist state. I hope that the officers involved go on to have careers protecting us in a manner that is both legal and productive.

Ngchen

(this topic is quickly moving toward P&R)
Something people often forget when it comes to stops and searches is this. Fishing expeditions are not only illegal, but are generally ineffective in that they waste police resources that could/should be more intelligently deployed. In addition, stopping people without decent cause makes people hate the cops, and well, I'm sure police work is much harder when people in general hate them (Would you know anything about X? Maybe, maybe not, but I sure won't tell YOU anything!). In the case mentioned by the OP, of course there ultimately were drugs turned up. The "exclusionary rule" has always been controversial; supporters say it's the only thing that can deter overzealous law enforcement, while opponents point to cases like this one where obviously guilty people go free. One has to bear in mind that if the cops turned up nothing, then it's unlikely the case would have ever seen a courtroom, so we'll only hear about the cases where something DID turn up.

I hear a large part of the controversy over racial profiling revolves around police seeing someone of the "wrong" race in particular neighborhoods, proceeding to stops and investigations. Cops are trained to spot things that seem out of place; but of course there's something very wrong when a person is deemed "out of place" based on skin color.

chipcom 

Look, it's quite simple. If, as an LEO, I have a reasonable suspicion that you have committed a crime, have material information concerning the commission of a crime, are obstructing an investigation or my ability to do my job, or that you are at grave risk of harm to yourself, I have every right to detain you.

Otherwise, not so much.

BLACK BIKE

You make some good points, especially that this topic is quickly moving toward P&R.

The last thing I have to say about this topic is that the officers tried to bring a criminal to justice. In this case they were unsucsessful. I hope they can learn from this experience, and not let it discourage them from doing their job in the future.

hotbike

I don't think bicycle bells are obsolete. The one chime gong is still popular in NYC.

But I agree that this has nothing to do with bikes. Yesterday, on the radio, I heard a Lawyer say "Marijuana is not illegal, it is a public health violation..."

What if they check your bike for a bell or gong and they find a bong??? lol.

Digital_Cowboy

What "suspicions" the from what I read the only "obvious" thing that the individual did wrong was riding his bike in a "high crime area:"

<Quote>
At the hearing on J.C.'s motion to suppress the physical evidence, the arresting officer testified that upon seeing J.C. riding his bike in “a high crime area,” he and the officer with whom he was riding “pulled along and asked to approach [J.C.].” There is no indication in the record of how J.C. responded.
</Quote>

Granted the rider as it turns out because of the suspect/illegal search is/was engaged in an illegal activity, but how does riding one's bike in a "high crime area" constitute probable cause to stop/detain and search said rider? Doesn't there need to be more cause then riding "in a high crime area?"

Dchiefransom

What about all the people that live in that high crime area? Should the police be able to search their homes?