It’s an Emergency! Or Is it? The Admissibility of 911 Calls

Happy (belated) New Year!  I hope that you all had a healthy and happy holiday season and that you are just as excited as I am for 2019 and all that it may bring.  One thing I am definitely bringing – more blogs!  I’ve  found some great cases that have been decided recently and I’m looking forward to explaining them to you here on a weekly basis.  As always, the information that I provide is for educational purposes only.  If you or someone you know has been arrested, call me now (954-908-3399) and we can schedule a free consultation to discuss the legal issues in the case and make sure that your rights are being protected!

The first case of the new year comes to us from the Fifth District Court of Appeals, Raymond v. State,  5D17-2759 (link opens as PDF, full case below) and involves the admissibility of a victim’s call to 911 and the victim’s subsequent statements to the responding law enforcement officers. 

Mr. Raymond was charged with one count of attempted second degree murder with a firearm.  He was accused of firing a shotgun at his mother in her bedroom. (Not exactly the normal loving mother and son relationship!) Raymond’s mother was the only alleged witness to the shooting. At trial, his mother was NOT called to testify by the prosecution, perhaps because she was non-cooperative and didn’t want her charming baby boy to go to prison.  The Prosecution, In order to establish the facts of what happened without the mother testifying, presented the 911 call that his mother had made to ask for help and report the crime. Also two deputies who arrived at the scene of the shooting and spoke to the mother were allowed by the Court to testify to what his mother had said. What the mother advised the officers, in addition to the 911 tape that was played for the jury, was very damning evidence.  This evidence was admitted into trial over the defense’s objection and Mr. Raymond was convicted.  Mr. Raymond then appealed, claiming that the admission of this evidence was error and that he was entitled to a new trial.  

The Appellate Court was forced to address two separate issues regarding the admission of these statements: (1) was the Sixth Amendment’s Confrontation Clause violated by their admission and (2) Are the statements admissible hearsay.

The Confrontation Clause Argument

Because Mr. Raymond’s mother did not testify, Mr. Raymond was not afforded the opportunity to cross examine her directly about the facts and circumstances under which she made these statements.  A statement is not barred by the Confrontation Clause, if the statement is “non-testimonial” in nature.  The Supreme Court has defined testimonial and non-testimonial statements as:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

The Court found that the 911 call was non-testimonial in nature.  Mr. Raymond’s mother was crying and distraught on the 911 call, said that her son had just shot at her in her bedroom and told the dispatcher “he’s going to kill me . . . hurry . . . please hurry.”  This statement was clearly not made to aid a police investigation but was made to alert police to an ongoing emergency and to receive assistance.   The statements that Mr. Raymond’s mother made to the police after they arrived, however, were not made in the course of an on-going emergency.  At the time the officers arrived, Mr. Raymond had left the scene and was no longer a threat to his mother.  The officers were asking questions of his mother in order to piece together possible criminal charges.  Because those statements were testimonial in nature, they were inadmissible unless Mr. Raymond’s mother testified at trial and could be confronted and cross-examined about them.

The Hearsay Argument

The Court ruled that the 911 tape was non-testimonial, so it could be admitted without violating the confrontation clause.  The Court also had to determine whether the 911 tape was admissible hearsay.  Hearsay is an out-of-court statement that is admitted into evidence in order to prove the truth of the matter asserted.  The general rule is the hearsay is inadmissible, unless the statement fits into a hearsay exception. One of the many hearsay exceptions, is the “Excited Utterance” hearsay exception. This exception is codified in statute: section 90.803(2), Florida Statutes (2017). “[T]o qualify as an excited utterance, the statement must be made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’”  The Court found that all of those factors were present in this case, as Mr. Raymond’s mother had just been shot at, was clearly upset on the audio, and made a statement about the shooting which was the thing that made her upset.

Because of the inadmissible statements allowed in through the deputies’ testimony, the case was remanded to the lower court for a new trial.  Assuming Mr. Raymond’s mother does not testify, the State will be allowed to use the 911 call to prove its case, but will NOT be allowed to use the statements Mr. Raymond’s mother made to the responding deputies.

Again, if you or someone you know is facing arrest and trial on criminal charges it is vitally important that you reach out to me immediately.  And until next time, stay out of jail and live your life the way it should be lived!

CHRISTOPHER M. RAYMOND,

v.

STATE OF FLORIDA,

COHEN, C.J. Christopher Raymond appeals his conviction following a jury trial for attempted second-degree murder by discharging a firearm. We reverse and remand for a new trial.

The State alleged that Raymond attempted to kill his mother, Nicole Raymond, by firing a shotgun over her head when she was in her bedroom. Mrs. Raymond did not testify at the trial. To prove its case, the State heavily relied on the 911 phone call Mrs. Raymond made after the shooting as well as her statements to the responding officers. The State also presented inculpatory statements Raymond made to officers and photographic evidence of the shooting.

Casey Biuk, a 911 communications officer, testified that on the night of the incident, she answered a call from Mrs. Raymond, who sounded distraught. Mrs. Raymond was crying and relayed that her son had just shot at her in her bedroom. Mrs. Raymond told Officer Biuk that “he’s going to kill me . . . hurry . . . please hurry.” The State played a recording of Mrs. Raymond’s call for the jury.

Deputy Knight, a responding officer, testified that when he entered the residence, Mrs. Raymond was alone in her bedroom, crying hysterically and shaking uncontrollably. Upon Deputy Knight’s questioning, Mrs. Raymond detailed the evening’s events that led to Raymond firing the weapon. Deputy Knight observed a spent shotgun shell at the foot of the bed as well as evidence on the pillow and wall consistent with the firing of a shotgun.

Deputy Fernandez, who also responded to the scene, testified that upon making contact with Mrs. Raymond, she stated that she had just been shot at by her son and that he fled to his grandmother’s house nearby. Deputy Fernandez subsequently approached Raymond at his grandmother’s house and testified that as Raymond was exiting the house, he stated, “The devil is going to give her hers . . . she’s going to get hers.” The deputies recovered a shotgun from the grandmother’s house and a hooded sweatshirt containing four unspent shotgun shells consistent with the shell recovered from Mrs. Raymond’s bedroom.

The State’s last witness, Detective Ricci, testified regarding an interview of Raymond conducted upon his arrest. During the interview, Raymond stated that on the night of the shooting, he had been drinking alcohol in the home, then entered his mother’s bedroom, fired a shot, and left the residence. Raymond offered no explanation for his actions but expressed remorse for what he had done. The jury heard a recording of the interview.

On appeal, Raymond raises two issues, only one of which merits discussion: the trial court erred in admitting Mrs. Raymond’s 911 call with Officer Biuk and the testimony of Deputies Knight and Fernandez regarding statements made by Mrs. Raymond to them. We separately analyze Mrs. Raymond’s statements made during the 911 call and to the responding deputies.

Raymond’s arguments regarding Mrs. Raymond’s statements conflate his right to confront witnesses against him under the Confrontation Clause of the Sixth Amendment2 and the excited utterance exception to the hearsay rule. These are two distinct analyses. Statements admitted against a criminal defendant must be both nonviolative of the Confrontation Clause and permissible under the hearsay rules. See, e.g., State v. Contreras, 979 So. 2d 896 (Fla. 2008).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court discussed in depth the history of the Confrontation Clause. The Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands [witness] unavailability and a prior opportunity for cross-examination.” Id. at 68. The Court left open the precise qualities of testimonial statements but provided that “[w]hatever else the term covers, it applies at a minimum to . . . police interrogations.” Id.

In two consolidated cases, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), the Court defined the nature of testimonial statements. Both cases involved statements officers obtained in the course of their investigations. The Court explained:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822. The Court found that the statements made by the victim in Davis when calling 911 described events “as they were actually happening” and objectively indicated that their main purpose was to assist police with an ongoing emergency. Id. at 827–28. The Court held that these statements were nontestimonial and outside the scope of the Confrontation Clause. Id. at 826–28. In contrast, the statements made by the victim to responding officers in Hammon, when there was no ongoing emergency, described past events and were “part of an investigation into possibly criminal past conduct.” Id. at 829. The Court held that these statements were testimonial and subject to the requirements of the Confrontation Clause. Id. at 829–30. We find the circumstances of Mrs. Raymond’s 911 call to be akin to those in Davis because her statements described events “as they were actually happening” in order to assist law enforcement with the ongoing emergency she faced. Thus, the statements were nontestimonial and not in violation of the Confrontation Clause. See id. at 826–28. The next step in the analysis is to determine whether the statements fall within the excited utterance exception in section 90.803(2), Florida Statutes (2017). “[T]o qualify as an excited utterance, the statement must be made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’” Pasha v. State, 225 So. 3d 688, 707 (Fla. 2017) (quoting Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008)).

We find that Mrs. Raymond’s statements made during the 911 call meet these requirements: she called 911 immediately after Raymond shot at her, while under the stress of the shooting, and explained what had just happened before she had time for reflective thought or the capacity for conscious misrepresentation. See id. (finding witness’s statements made during 911 call qualified as admissible excited utterances); see also Taylor v. State, 146 So. 3d 113, 114–16 (Fla. 5th DCA 2014) (finding victim’s statements to law enforcement following shooting were admissible excited utterances because there was no evidence that victim had sufficient time for reflection and the State presented evidence that victim was still in a state of panic as she relayed the events, which had occurred just minutes before); Barron v. State, 990 So. 2d 1098, 1101 (Fla. 3d DCA 2007) (finding statements made during 911 call placed immediately after shooting were excited utterances, nontestimonial, and nonviolative of the Confrontation Clause).

Raymond also argues that under Tucker v. State, 884 So. 2d 168 (Fla. 2d DCA 2004), the trial court per se reversibly erred by admitting the 911 call without making necessary specific findings that the statements were excited utterances. Raymond is correct that the trial court erred by failing to make any findings prior to admitting the 911 call. See Stoll v. State, 762 So. 2d 870, 873–74 (Fla. 2000) (explaining that “[w]hether the necessary state of mind is present” when analyzing if a statement is an excited utterance “is a preliminary fact for the court to determine”); see also Taylor, 146 So. 3d at 116 (“Whether the declarant made an excited utterance is a preliminary question of fact for the trial court . . . .”). However, our review of the record indicates that Raymond failed to bring this deficiency to the trial court’s attention with an objection. Cf. Tucker, 884 So. 2d at 171 (noting that defense requested that the trial court take evidence as to witness’s state of mind, which the court refused); see also § 90.104(1)(a), Fla. Stat. (explaining that a court may predicate an evidentiary error when, in part, “a timely objection . . . appears on the record, stating the specific ground of objection . . . .”). Thus, we find the error unpreserved for our review.

Mrs. Raymond’s statements made during the 911 call sit in stark contrast to the statements made to Deputies Knight and Fernandez upon their arrival at the scene. Those statements, explaining in detail the events leading up to the incident, occurred after the threat ceased and were the result of a police interrogation similar to the one conducted in Hammon, intended to capture historical information. See 547 U.S. at 829–30. Because Mrs. Raymond did not testify at trial, nor was she ever cross-examined, we agree with Raymond that the introduction of these statements violated his Sixth Amendment right to confrontation. See Bartee v. State, 922 So. 2d 1065, 1070 (Fla. 5th DCA 2006) (finding statements victim made to officers in response to questioning after incident were testimonial and that the use of statements at trial violated defendant’s right to confront victim where victim was unavailable).

The State bears the burden of establishing that this error was harmless under the circumstances of the case. See Contreras, 979 So. 3d at 911; State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The entirety of the State’s argument as to harmless error is as follows:

VICTIM’S COMMENTS CLEARLY FALL UNDER THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE. ANY ERROR HARMLESS.

The body of the argument within the brief is completely devoid of any analysis or attempt to demonstrate how the error was harmless. That said, we have an obligation to conduct an independent harmless error analysis. Goodwin v. State, 751 So. 2d 537, 545 (Fla. 1999).

This was not a case where the fact that a shot was fired or the identity of the shooter were in dispute. However, the nature of Raymond’s act was the critical issue at trial. To establish the second element of attempted second-degree murder, the State was required to prove beyond a reasonable doubt that Raymond committed an act “imminently dangerous to another and demonstrating a depraved mind without regard for human life.” Fla. Std. Jury Instr. (Crim.) 6.4; § 782.04(2), Fla. Stat. (2017). An act is imminently dangerous if “a person of ordinary judgment would know [it] is reasonably certain to kill or do serious bodily injury to another, and [it] is done from ill will, hatred, spite, or an evil 8 intent, and [it] is of such a nature that the act itself indicates an indifference to human life.” Fla. Std. Jury Instr. (Crim.) 6.4.

The evidence established that Raymond fired one shot, at close range, from a shotgun. Unlike a single projectile fired from a rifle, a shotgun shell is loaded with multiple projectiles which spread after being fired. Despite his close proximity, not one projectile struck Mrs. Raymond. The physical evidence reflected that Raymond opened the shotgun and expelled the shell, leaving it at the scene. The evidence also established that Raymond possessed four additional unspent shells but had made no effort to reload and fire a second shot, notwithstanding the State’s theory that Raymond attempted to kill his mother.

The issue is not whether the evidence might or might not have been sufficient to support a conviction for second-degree murder. Rather, it is whether the State met its burden of establishing beyond a reasonable doubt that Raymond’s conviction for attempted second-degree murder would have been reached even in the absence of the improperly admitted testimony. We find it did not. Because “there is a reasonable possibility that the error affected the verdict,” we reverse Raymond’s conviction and remand for a new trial. See Bartee, 922 So. 2d at 1071–72.

REVERSED AND REMANDED.

The Police Are Demanding My Phone's Password, What Should I Do?

Hello again! I hope that you found my last post instructive, interesting, and thought-provoking. I have a good feeling that you will find this one to be especially so. As always, this post is for educational purposes only and does not constitute legal advice. If you or someone you love are being investigated by law enforcement or you have been arrested, it is vital that you reach out to an attorney who can advise you on all of your rights and the best course of action in your case. Reach out to me now for a free consultation!

Today’s case comes to us from the Fourth District Court of Appeals and concerns a trial court’s ordering compelling a juvenile defendant to turn over passwords to a phone and to an iTunes account to law enforcement so that they may search his phone. This is a situation that comes up quite often and courts have come to different conclusions, making it all the more important that you reach out to a criminal defense attorney such as myself as soon as possible before taking any action that might prejudice your rights!

In GAQL v. State, 4D18-1811, the minor defendant was charged after being the driver in a crash that killed one passenger while the minor was allegedly under the influence of alcohol. The crash investigators located two phones within the crashed vehicle: one belonging to a surviving passenger and one belonging to the defendant. The surviving passenger told police that she had been communicating via phone with the juvenile and the state attorney wanted to see those communications to see if there were any incriminating statements on that phone. The police obtained a search warrant for the phone, but needed the passcode to the phone to gain access and the iTunes password to install an update on the phone so that it could be searched. The trial court granted the State’s motion to compel the juvenile to give the passcodes to the investigators despite the juvenile’s argument that this would violate his Fifth Amendment right against self-incrimination. The juvenile then appealed the trial court’s order to the Fourth District (this is one of the few instances were an appeal of a trial court’s order can be taken before the trial is conducted).

The District Court noted that courts, including Florida’s Second District, have grappled with this issue and have reached differing results. The Court started by analyzing whether the password should be considered a statement, or whether it is more like a blood sample, fingerprint sample, voice exemplar, or physical key, the disclosures of which are not protected by the Fifth Amendment.

Acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to “disclose any knowledge he might have” or “speak his guilt.” In other words, the Fifth Amendment is triggered when the act compelled would require the suspect “to disclose the contents of his own mind” to explicitly or implicitly communicate some statement of fact…. [R]evealing one’s password requires more than just a physical act; instead, it probes into the contents of an individual’s mind and therefore implicates the Fifth Amendment. The very act of revealing a password asserts a fact: that the defendant knows the password.

The Court found that the giving of the password was testimonial in nature because it would be necessity imply knowledge/ownership/authorship of all of the contents of that phone - the texts, the emails, the photos, etc. The State wasn’t interested in the passcode itself, but what communications that the passcode would reveal on the phone.

Having decided that the passcode was testimonial, the Court then turned to an exception to the Fifth Amendment protection - the “foregone conclusion exception”. The defendant would still be required to turn over the passcode if this exception applied. This exception applies when:

As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity “that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic.”

The files that the State must describe with particularity are the files on the phone - the alleged text messages, photos, emails, etc. - and not the passcode itself. Here, the State was engaging in a mere fishing expedition. It was hoping that it would find incriminating evidence on the phone, but could not state what that evidence would be. As such, the State could not rely upon the foregone conclusion exception and the juvenile was not required to turn over the two passcodes. For the State, all this means that it will not be able to rely upon whatever evidence it would have found when prosecuting the case. For the defendant, it means that he is not required to be a witness against himself, as the Constitution requires.

Again, if you find yourself being investigated by law enforcement or arrested for a crime, reach out to me immediately for a free consultation so that we can begin to craft your defense and protect your rights!

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

G.A.Q.L., a minor

v.

STATE OF FLORIDA,

LEVINE, J.

Two passcodes stand in the way of the state accessing the contents of a phone alleged to belong to a minor. The state sought, and the trial court agreed, to compel the minor to provide two passcodes, finding that “the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion.” We disagree. The minor is being compelled to “disclose the contents of his own mind” by producing a passcode for a phone and a password for an iTunes account. Further, because the state did not show, with any particularity, knowledge of the evidence within the phone, the trial court could not find that the contents of the phone were already known to the state and thus within the “foregone conclusion” exception. We grant the minor’s petition for writ of certiorari and quash the trial court’s order compelling the disclosure of the two passcodes.

The minor was speeding when he crashed. One of the passengers in his car died in the crash. At the hospital, the police had a blood test performed, showing that the minor had a .086 blood-alcohol content.

After obtaining a search warrant for the vehicle, the police located two iPhones. One iPhone belonged to a surviving passenger. The surviving passenger told police that the group had been drinking vodka earlier in the day and that she had been communicating with the minor on her iPhone.

The second phone, an iPhone 7, was alleged to have belonged to the minor. The police obtained a warrant to search the phone for data, photographs, assigned numbers, content, applications, text messages, and other information. After obtaining a warrant to search this iPhone, the police sought an order compelling the minor to provide the passcode for the iPhone and the password for an iTunes account associated with it. 

In its first motion, the state identified the iPhone and “request[ed] the court compel production of the passcode for the minor’s cellular phone.” In its second motion, the state sought to compel the minor to produce an iTunes password. This was necessary, the state argued, because the phone could not be searched before receiving a software update from Apple’s iTunes service. Thus, the state needed both the passcode to access the phone and the iTunes password to update it.

At a hearing on the motions, the state noted that the surviving passenger from the car crash had provided a sworn statement that on the day of the crash and in the days following the crash, she had communicated with the minor via text and Snapchat. The passenger had also told police that she and the minor had been consuming alcoholic beverages the day of the crash. As such, the state needed the phone passcode and iTunes password to obtain any possible communications between the defendant and the surviving passenger.

The minor argued that compelling disclosure of the iPhone passcode and iTunes password violated his rights under the Fifth Amendment to the United States Constitution. The trial court disagreed and concluded in its order that the minor’s “passcodes are not testimonial in and of themselves. See State v. Stahl, 206 So. 3d 124, 134 (Fla. 2d DCA 2016). The passcodes merely allow the State to access the phone, which the State has a warrant to search. See id.” According to the trial court, the state had established the “existence, possession, and authenticity of the documents” it sought. Thus, the “existences of the passcodes in the instant case is a foregone  conclusion.” Finally, the trial court determined that the act of producing the passcode and password was not testimonial. As a result, the trial court granted the state’s motions to compel.

The minor petitioned for writ of certiorari to quash the circuit court’s order. This court has jurisdiction to issue a writ of certiorari under article V, section 4(b)(3) of the Florida Constitution. See also Appel v. Bard, 154 So. 3d 1227, 1228 (Fla. 4th DCA 2015) (granting certiorari to review order compelling answers to deposition questions and overruling Fifth Amendment privilege objections); cf. Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th DCA 2003). Our standard of review when considering whether to issue such a writ is “whether the trial court . . . departed from the essential requirements of law.” Anderson v. E.T., 862 So. 2d 839, 840 (Fla. 4th DCA 2003) (citation omitted). To warrant a writ of certiorari, “there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (citation and internal quotation marks omitted).

Compelled Production of the Passcodes

This case is governed by the Fifth Amendment to the United States Constitution, which states: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V; see also Fla. Const. art. I, § 9. The Fifth Amendment proscribes the compelled production of an incriminating testimonial communication. Fisher v. United States, 425 U.S. 391, 40 425 U.S. 391, 408 (1976).

“[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S. 201, 210 (1988) (footnote omitted). As such, acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to “disclose any knowledge he might have” or “speak his guilt.” Id. at 211 (citation omitted). In other words, the Fifth Amendment is triggered when the act compelled would require the suspect “to disclose the contents of his own mind” to explicitly or implicitly communicate some statement of fact. Curcio v. United States, 354 U.S. 118, 128 (1957).

In his famous dissent in Doe, Justice Stevens utilized an analogy to describe the scope of the Fifth Amendment protection against selfincrimination: “[A defendant] may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.” Doe, 487 U.S. at 219 (Stevens, J., dissenting). Applying this analogy to the act of producing documents responsible to a subpoena, the Supreme Court once observed, “[t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” United States v. Hubbell, 530 U.S. 27, 43 (2000). Thus, when the compelled act is one of testimony rather than simple surrender, the Fifth Amendment applies. See Fisher, 425 U.S. at 411.

This analogy has been invoked with some frequency as courts have grappled with whether being forced to produce a phone password is more akin to surrendering a key or revealing a combination. See, e.g., State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012); United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010); Seo v. State, No. 29A05-1710-CR-2466, 2018 WL 4040295 (Ind. Ct. App. Aug. 21, 2018).

All of these password cases, with the exception of Stahl, have determined that the compelled production of a passcode is more akin to revealing a combination than producing a key. This is so because revealing one’s password requires more than just a physical act; instead, it probes into the contents of an individual’s mind and therefore implicates the Fifth Amendment. See Kirschner, 823 F. Supp. 2d at 669. The very act of revealing a password asserts a fact: that the defendant knows the password. See Hubbell, 530 U.S. at 43 (stating that the Fifth Amendment applies “to the testimonial aspect of a response to a subpoena seeking discovery” of sources of potentially incriminating information). Thus, being forced to produce a password is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination. See id. at 38 (“Compelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.”) (quoting Doe, 487 U.S. at 208 n.6).

In accepting this interpretation of Fifth Amendment doctrine, we disagree with the Second District’s Stahl opinion. In Stahl, officers sought to search a defendant’s locked phone, but the defendant refused to give them his passcode. 206 So. 3d at 128. The Second District concluded that making the defendant reveal his passcode was not testimonial, as the passcode was “sought only for its content and the content has no other value or significance,” making communication of the passcode nontestimonial. Id. at 134. The court explicitly rejected the notion of passcode-as-combination under the Doe analogy and determined that, although it did require the use of the defendant’s mind, compelled unlocking of the phone via passcode was not a protected testimonial communication under the Fifth Amendment. Id. We disagree.

We find the Eleventh Circuit’s decision in In re Grand Jury Subpoena to be instructive. In that case, John Doe was served a subpoena requiring him to decrypt several hard drives in his possession.1 670 F.3d at 1337. There, the court determined that compelled decryption of hard drives was testimonial in nature. Id. at 1346. In reaching this conclusion, the court noted that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. Specifically addressing the “key” and “combination” analogy, the court likened the forced decryption to production of a combination because it is “accompanied by . . . implied factual statements” and utilized the contents of the mind with the final objective not of obtaining the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption. Id.

Thus, this case is analogous to In re Grand Jury Subpoena. Here, the state seeks the phone passcode not because it wants the passcode itself, but because it wants to know what communications lie beyond the passcode wall. If the minor were to reveal this passcode, he would be engaging in a testimonial act utilizing the “contents of his mind” and demonstrating as a factual matter that he knows how to access the phone. See id. As such, the compelled production of the phone passcode or the iTunes password here would be testimonial and covered by the Fifth Amendment. Id.

The Foregone Conclusion Exception

Having determined that the production of the passcode and password are covered by the Fifth Amendment, we now address whether the “foregone conclusion” exception would nevertheless allow the state to compel the minor to reveal the passcode and password. We discuss this issue since the trial court applied the foregone conclusion exception below when it concluded that “the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion.” Although the foregone conclusion exception might apply in some circumstances, it does not apply here. The trial court therefore erred in relying on the foregone conclusion exception as a basis for allowing the production of the passcodes.

In general, if the state can meet the requirements of the foregone conclusion exception, it may compel otherwise ostensibly selfincriminating testimonial production of information. Fisher, 425 U.S. at 411; In re Grand Jury Subpoena, 670 F.3d at 1345-46. Under this exception, an act of production is not a violation of the Fifth Amendment— even if it conveys a fact—if the state can show with reasonable particularity that, at the time it sought to compel the act of production, it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion. Id. at 1346. As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity “that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic.” Id. at 1349 n.28.

It is critical to note here that when it comes to data locked behind a passcode wall, the object of the foregone conclusion exception is not the password itself, but the data the state seeks behind the passcode wall. See id. at 1349 (holding that foregone conclusion exception did not apply to compelled production of encrypted files because government could not show with “reasonable particularity” that files existed on the drive to which the individual who was subpoenaed had access). To find otherwise would expand the contours of the foregone conclusion exception so as to swallow the protections of the Fifth Amendment. For example, every password protected phone would be subject to compelled unlocking since it would be a foregone conclusion that any password-protected phone would have a passcode. That interpretation is wrong and contravenes the protections of the Fifth Amendment.

Below and on appeal, the state’s argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that “because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner’s cell phone, and that he can access the content of his phone,” the compelled search was acceptable. Similarly, the trial court specifically held that the “existence, custody, and authenticity of the passcodes are a foregone conclusion” in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark.

On this subject, we again disagree with the Second District. In Stahl, the court focused on the “reasonable particularity that the passcode exists,” a fact that the state had established. 206 So. 3d at 136 (emphasis in original). However, this is not the proper focus of the inquiry—it is not enough to know that a passcode wall exists, but rather, the state must demonstrate with reasonable particularity that what it is looking for is in fact located behind that wall. See In Re Grand Jury Subpoena, 670 F.3d at 1348-49. Contrary to the Stahl court’s conclusion, which the trial court adopted,2 the “evidence sought” in a password production case such as this is not the password itself; rather, it is the actual files or evidence on the locked phone. Compare Stahl, 206 So. 3d at 135, with In Re Grand Jury Subpoena, 670 F.3d at 1347. Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case “plainly fall outside” of the foregone conclusion exception and amount to a mere fishing expedition. Hubbell, 530 U.S. at 44.

The concurrence, meanwhile, argues that the foregone conclusion exception could never be applied to compelled “oral testimony” in any case. Like Stahl, this view seems to misconstrue the object of the foregone conclusion exception. It is not the verbal recitation of a passcode, but rather the documents, electronic or otherwise, hidden by an electronic wall that are the focus of this exception. Further, it would seem unreasonable not to subject documents protected by a passcode to the foregone conclusion exception where the state compels the subject to orally recite a passcode, but allow the foregone conclusion exception to apply to protected documents where the state compels the subject, for example, to physically write down a password, effectively creating the document. In both scenarios the subject is compelled to disclose the “contents of his mind” by different modalities—written in one scenario and oral in the other—to the same inculpatory effect. See Couch v. United States, 409 U.S. 322, 328 (1973) (“It is extortion of information from the accused himself that offends our sense of justice.”) (emphasis added). However, in any event, since the state did not know with “reasonable certainty” the electronic documents behind the wall, this is not dispositive to the resolution of this case.

Here, the state’s subpoena fails to identify any specific file locations or even name particular files that it seeks from the encrypted, passcodeprotected phone. Instead, it generally seeks essentially all communications, data, and images on the locked iPhone. The only possible indication that the state might be seeking anything more specific was the prosecutor’s statement at the hearing that the surviving passenger had been communicating with the minor via Snapchat and text message on the day of the accident and after the accident, a fact that the trial court briefly mentioned in its order but did not appear to rely on in reaching its conclusion.

However, this stand-alone statement is not enough to meet the “reasonable particularity” requirement of the foregone conclusion exception. Even if the state had argued that the evidence on the phone was a foregone conclusion—which it did not—this record does not indicate that the state can say with reasonable particularity that the Snapchat and text files are located on the phone. It is not enough for the state to infer that evidence exists—it must identify what evidence lies beyond the passcode wall with reasonable particularity. Stahl, 206 So. 3d at 135-36; see also In re Grand Jury Subpoena, 670 F.3d at 1347 (“[C]ategorical requests for documents the government anticipates are likely to exist simply will not suffice.”). Thus, as was the case in In re Grand Jury Subpoena, the foregone conclusion exception is inapplicable. See 670 F.3d at 1349.

We also find Seo persuasive. Like in this case, there the state sought to compel a defendant to unlock her iPhone in order to search it. 2018 WL 4040295 at *2. After holding that doing so would implicate the Fifth Amendment, the Court of Appeals of Indiana concluded that the foregone conclusion exception did not apply. Id. at *11-12. It noted that the government seeking to compel the production of a passcode must “be able to describe with reasonable particularity the documents or evidence it seeks to compel.” Id. at *12. Importantly, the court observed that “[w]hat is being compelled here is not merely the passcode,” but the contents of the phone that are instantly decrypted in their entirety upon inputting the passcode. Id. at *13. Because the state could not meet its burden of identifying the contents—that is, the actual phone data—sought with reasonable particularity, the foregone conclusion exception did not apply. Id.

The state here seeks to force the minor to produce the passcode and iTunes password for an iPhone. To do so would be to compel testimonial communications in violation of the minor’s invocation of his Fifth Amendment rights. See In re Grand Jury Subpoena, 670 F.3d at 1346. Additionally, the trial court erred in relying on the foregone conclusion exception, as the requirements of that exception were not met. See id. at 1349. As such, we grant the minor’s petition for writ of certiorari and quash the order of the trial court.

Petition granted; order quashed. CIKLIN, J., concurs. KUNTZ, J., concurs in result only with opinion.

Hey, That's Not My Stuff! The Law of Constructive Possession

Hope you all had a great Thanksgiving! I’ve been getting some good feedback from you all about these posts and I’m glad that you’re finding them helpful. As always, the information below is for educational purposes only and should not be construed as legal advice. If you or someone you know has been arrested, reach out to me immediately for a free consultation so I can start to represent you and your interests as soon as possible!

Today’s case comes to us from the First District Court of Appeals and concerns a topic that comes up frequently in criminal cases: constructive possession. In Jones v. State, 1D17-2808 (opens in PDF, full text below), the First District was asked to determine whether the State had in fact proved that Mr. Jones possessed cocaine located inside a closed center console of a vehicle that was occupied by multiple persons.

There are two types of possession - actual possession and constructive possession. Actual possession means that the item was found on your person (in your pocket, for example). Constructive possession means that the item was found in an area over which you exercise “dominion and control”. A classic example of constructive possession would be a case involving a person alone in his or her vehicle where narcotics are located in plain view on the passenger seat. The drugs may not be on the driver’s person, but the State would easily argue that the driver was in constructive possession of those items because the driver could see the items and there was no one else in the car that those items could belong to. As we see in Mr. Jones’s case, this issue becomes much more murky when the narcotics are not in plain view, when there are multiple occupants of a vehicle, when the alleged possessor doesn’t own the vehicle, when there are no statements, etc.

At Mr. Jones’s trial, the evidence established that Mr. Jones was the driver of a vehicle along with a single passenger. The vehicle had been rented by Mr. Jones’s sister. Mr. Jones was stopped due to a traffic violation and, ultimately, marijuana was located on the driver’s seat and a baggie of cocaine was located inside the center console. Mr. Jones admitted to ownership of the marijuana but denied knowledge of the cocaine. Mr. Jones’s attorney asked for a judgment of acquittal, a motion at the close of evidence stating that there was insufficient evidence for the case to go to the jury for deliberations. That motion was denied and Mr. Jones was convicted. The First District determined that this was error:

But because the rental car in which the troopers found the cocaine was in joint possession, rather than in Jones’s exclusive possession, “knowledge” and “ability to maintain dominion and control” could not be inferred from Jones’s mere proximity to the contraband. See Evans v. State, 32 So. 3d 188, 189-90 (Fla. 1st DCA 2010). Rather, the State was required to establish independent proof of Jones’s knowledge and ability to maintain control over the cocaine, such as evidence of incriminating statements or actions or circumstantial evidence from which a jury might properly infer that Jones had knowledge of the presence of the cocaine.

The Court found another case particularly instructive - Kemp v. State. In that case, the vehicle was parked and searched pursuant to a search warrant. A random receipt from two days before the search and bearing the defendant’s name was inside the center console, conveniently next to a firearm that was recovered. Even that evidence was insufficient because there was no time frame on when the firearm entered the car and there was evidence that individuals other than the defendant had access to the vehicle and could have placed the firearm there. It was certainly possible that Mr. Jones’s passenger or his sister (or any other person who had access to the vehicle) could have placed the cocaine within the center console and there was no evidence to rebut that reasonable hypothesis of innocence. Based on this lack of evidence, the District Court determined that the trial court should have granted Mr. Jones’s motion for acquittal and thus his conviction was reversed.

If you or someone you love finds yourself charged with possessing narcotics or a firearm or any other illegal matter, please reach out to me so that we can discuss your case and I can take steps to defend you immediately!

FIRST DISTRICT COURT OF APPEAL

CHRISTOPHER ANTIAWN JONES,

v.

STATE OF FLORIDA,

ROWE, J.

Christopher Antiawn Jones appeals his judgment and sentence for possession of cocaine, arguing that his motion for judgment of acquittal should have been granted because the State failed to prove the elements of constructive possession. We agree and reverse.

Jones and passenger Namre’h Lyles were pulled over by a state trooper on the interstate for following too closely to the car in front of them. Jones told the trooper he did not have his license, and Jones was instructed to exit the vehicle. Jones and the trooper walked behind Jones’s vehicle and stood at the front of the trooper’s vehicle where Jones was questioned. Lyles remained inside the vehicle.

Jones told the trooper that his name was Brandon Tremaine Bennett and that the car he was driving had been rented by his sister. After discovering that Jones had provided a false name, the trooper called a K9 unit to the scene. Jones and the trooper continued talking by the patrol car. Lyles remained in the rental car.

When the K9 unit arrived approximately nine minutes later, Lyles exited the vehicle. The canine “Mako” alerted and the troopers searched the rental car. They found Jones’s identification in the driver’s door pocket and a paper CD case containing marijuana on the driver’s seat. Lyles had a marijuana grinder in her purse. Inside the closed center console, the troopers found a baggie of cocaine and a box of “Swisher cigars.” After waiving his Miranda rights, Jones admitted his real name was Christopher Jones and that the marijuana found on the driver’s seat belonged to him. But he denied knowledge of the cocaine found in the center console.

Jones was charged with providing false identification to a law enforcement officer, possession of less than 20 grams of marijuana, possession of drug paraphernalia, and possession of cocaine.

At trial, Jones’s defense counsel admitted to all charges except possession of cocaine. The defense moved for judgment of acquittal, arguing that the State was required to provide independent proof that Jones had knowledge of the cocaine and the ability to maintain dominion and control over it because the rental vehicle was jointly occupied. Defense counsel also argued that the cocaine could have been in the rental car before Jones took control over it or Lyles could have placed it in the center console during the approximately nine minutes she was left alone in the vehicle while Jones was outside the vehicle being questioned by the troopers. The trial court denied the motion, and Jones was convicted as charged.

The evidence against Jones at trial was circumstantial. The cocaine was not found on his person and he was not seen placing the cocaine in the center console. Thus, in reviewing the trial court’s denial of the motion for judgment of acquittal, we “must determine whether the State presented competent evidence from which the jury could exclude every reasonable hypothesis except guilt.” State v. Burrows, 940 So. 2d 1259, 1262 (Fla. 1st DCA 2006) (emphasis in original).

The State’s case was based on a theory that Jones was in constructive possession of the cocaine. Constructive possession exists where the defendant does not have physical possession of the contraband but knows of its presence and can maintain dominion and control over it. See Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016); Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989). But because the rental car in which the troopers found the cocaine was in joint possession, rather than in Jones’s exclusive possession, “knowledge” and “ability to maintain dominion and control” could not be inferred from Jones’s mere proximity to the contraband. See Evans v. State, 32 So. 3d 188, 189-90 (Fla. 1st DCA 2010). Rather, the State was required to establish independent proof of Jones’s knowledge and ability to maintain control over the cocaine, such as evidence of incriminating statements or actions or circumstantial evidence from which a jury might properly infer that Jones had knowledge of the presence of the cocaine. Kemp v. State, 166 So. 3d 213, 217 (Fla. 1st DCA 2015) (quoting Julian, 545 So. 2d at 348); Robinson v. State, 936 So. 2d 1164, 1167 (Fla. 1st DCA 2006); Brown v. State, 8 So. 3d 1187, 1189 (Fla. 4th DCA 2009).

This Court’s decision in Kemp is instructive. 166 So. 3d at 213. There, officers executed a search warrant at a residence and searched a vehicle parked in the fenced-in area adjacent to the home. Id. at 214. Inside the vehicle’s glove compartment, officers found a car rental agreement bearing Kemp’s name. Id. In the closed center console, officers found a handgun and a receipt for payment of a T-Mobile cell phone bill, also bearing Kemp’s name. Id. at 215. The phone bill was dated two days before the search. Id. Officers did not perform any DNA or fingerprint testing on the firearm or any other items, and none of the occupants of the residence, including Kemp, claimed ownership of the gun. Id. Kemp was arrested and charged based on the fact that his name was on both the rental agreement of the vehicle and on the receipt inside the center console with the gun. Id. Kemp moved for judgment of acquittal, arguing that the State failed to prove a prima facie case of possession of a firearm. Id. The trial court denied the motion based on the presence of the T-Mobile receipt bearing Kemp’s name in the same container that was holding the gun. Id.

We reversed Kemp’s conviction, finding that the State presented no evidence to rebut Kemp’s hypothesis that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Id. We noted that “although the presence of the T-Mobile receipt bearing Appellant’s name suggests Appellant may have placed the receipt there, ‘[s]uch an inference, however, provides no time frame with regard to when the [gun] came to reside’ in the console, ‘nor any help as to appellant’s present dominion over the [gun].’” Id. (quoting Evans, 32 So. 3d at 191).

Similarly, here, the State failed to present independent proof that Jones had knowledge and control over the cocaine found in the closed center console of a jointly occupied vehicle. In arguing that Jones had knowledge and control over the cocaine, the State relied heavily on Jones’s multiple requests to the troopers during the time he was questioned outside the vehicle to smoke a “Black and Mild,” along with evidence that “Swisher cigars” were found in the closed center console where the cocaine was found. However, there was no testimony or evidence that a “Black and Mild” cigarette is the same as a “Swisher cigar.” And, while it is true that “[a]n inference of knowledge and dominion and control may arise where the contraband located in a jointly occupied area is found in or about other personal property which is shown to be owned or controlled by the defendant[,]” such an inference cannot be made in this case because the State failed to establish that the “Swisher cigars” found in the center console belonged to Jones. Edwards v. State, 186 So. 3d 1069, 1072 (Fla. 2d DCA 2016)

Even viewing the evidence in a light most favorable to the State and assuming the “Swisher cigars” found in the center console belonged to Jones, such evidence would not be sufficient to establish Jones’s knowledge of the cocaine or rebut Jones’s hypothesis of innocence. Although the cigars were present in the center console at the time of the search, no time frame was established with regard to when the cocaine came to reside in the center console, nor was there any indication of Jones’s present dominion over the cocaine. See Kemp, 166 So. 3d at 215; Evans, 32 So. 3d at 191. The trooper took Jones’s fingerprints, but the baggie of cocaine was never tested for fingerprints or DNA. The car was a rental vehicle, and the State never presented evidence of the timeline of when Jones gained access to the vehicle and for how long the vehicle was in Jones’s possession before he was stopped.

Moreover, while the proximity of the “Swisher cigars” to the cocaine might be consistent with Jones having knowledge and control over the cocaine, those facts are equally susceptible to the reasonable hypothesis argued at trial that it was Lyles who placed the cocaine in the center console while Jones and the trooper were talking outside. The dash cam footage played at trial showed that Lyles was alone in the vehicle for at least nine minutes while Jones and the trooper were behind the vehicle and out of view. The State failed to present sufficient evidence or testimony to rebut Jones’s hypothesis that Lyles placed the baggie of cocaine in the center console during that time. See Kemp, 166 So. 3d at 215; see also N.K.W., Jr. v. State, 788 So. 2d 1036, 1038 (Fla. 2d DCA 2001) (holding evidence was insufficient to establish constructive possession where, although drugs were found in a plastic bag inside defendant’s wallet, defendant was never asked if the bag belonged to him, no fingerprints were lifted from the bag, defendant denied ownership of the bag, and multiple people had access to the room where his wallet was located).

The State also argued that while Jones and Lyles were in the back of the trooper’s vehicle, Jones apologized to Lyles “about the process that this is” and indicated his intention to “let them know that, too.” The State contends that these statements support an inference that “that” refers to the cocaine found in the center console and that Jones had knowledge of it. After careful review of the record, we find that Jones’s statements to Lyles are far too vague to support an inference that he had knowledge of the cocaine. Nor do the statements by Jones to Lyles rebut Jones’s reasonable hypothesis that it was Lyles who placed the cocaine in the center console.

Finally, the State argues that Jones’s nervousness and conduct during questioning by the troopers is independent proof of his knowledge of the cocaine found in the vehicle. But Jones’s nervousness and failure to perceptibly react when he heard about the discovery of the cocaine in the vehicle does not constitute independent proof of Jones’s dominion or control of the cocaine because Jones’s nervousness could equally be attributable to the fact that Jones had been stopped or that he was found with marijuana on the driver’s seat and driving without a license. See Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013).

Because the State failed to rebut Jones’s reasonable hypothesis of innocence or provide independent proof that he had knowledge and control over the cocaine found in the center console, the trial court erred in denying the motion for judgment of acquittal. Jones’s conviction and sentence for possession of cocaine are REVERSED.

When Does a 911 Call Allow Police to Enter Your Home?

Just came across an interesting case from the Second District Court of Appeals, and I thought I’d share it with all of you. As always, the information below is for educational purposes only and does not constitute legal advice. In Lapace v. State, 2D17-1493 (link to PDF, full text below), the Second District addressed whether and when a 911 call can provide sufficient exigent circumstances for a police officer to enter into a residence without a warrant.

The case began with a vague call and hangup to 911. The only useful information relayed to dispatch was the address of occurrence. Deputies responded to that address and spoke with an unknown woman who told them a person with a warrant was inside the residence across the street. The deputies then went to that residence and spoke with a woman who answered the door. She had some marks on her, but indicated that she had been in a fight with a woman who had just left. The officers asked to enter her home and she refused to give them consent to enter. However, when she went to get her ID at the deputies’ request, they followed her into the residence and once again she told them they were not welcome. The deputies ignored her and searched the house anyway, finding Mr. Lapace in a bedoom. He was immediately handcuffed and found to be in possession of narcotics.

The general and zealously-protected rule is that law enforcement may not enter your home without a warrant. An exception to the warrant requirement is when there is some “exigent circumstance” that would justify law enforcement entering quickly into the residence before obtaining a warrant. One such circumstance is where there is a need to assist persons who are seriously injured or threatened with such injury. The Second District listed a few factors that would show such an emergency exists: when there is a 911 call that is corroborated with screaming, a blood trail, broken objects, etc. Crucially, none of these factors were present in this case:

The deputies did not hear anything within the residence that would lead them to reasonably conclude that someone in the residence was in distress. They did not observe any evidence of an ongoing domestic dispute, which might have required immediate entry without a warrant. Accordingly, any exigency that may have existed and prompted the 911 call had dissipated by the time the deputies arrived and received the initial explanation from Ms. Lawson that she was battered by an unknown woman, whom the detectives had seen fleeing the scene.

The deputies observed a calm scene upon arrival that was fully explained by the woman who answered the door. At that point, it would not have been reasonable for them to believe that anyone was in immediate danger and that any exigent circumstance existed. Because the entry into the residence was unlawful, the evidence discovered after that entry should have been suppressed (thrown out) and not be used against the defendant.

The thought of the police or anyone barging into your home without a valid legal reason is a scary proposition. Your home is a very sacred place and your right to privacy in your home is given great protection under the 4th Amendment and the laws of the State of Florida. If you or someone you know has recently been arrested and the police entered your residence, it is vital that you hire a criminal defense attorney who will research all aspects of the case to determine whether that entry into your residence was lawful or not. If the entry was not lawful, the evidence that the police seized may be thrown out and your case dismissed. Reach out to me now in order to receive a free consultation!

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

MICHAEL FRANK LAPACE

v.

STATE OF FLORIDA

CRENSHAW, Judge.

Michael Lapace appeals his convictions and sentences after pleading nolo contendere to a number of drug related charges. Mr. Lapace entered his pleas after the trial court denied his motion to suppress evidence obtained as a result of a warrantless search of a residence, reserving the right to appeal the adverse ruling. We reverse the trial court's denial of Mr. Lapace's motion to suppress because the evidence presented did not support the trial court's finding that the deputies reasonably believed that exigent circumstances existed that justified immediate entry into the residence without a warrant.

The testimony at the suppression hearing revealed that on September 4, 2016, two Manatee County Sheriff's deputies were responding to an unknown law enforcement problem call. The person who called 911 did not know her exact address and was giving the dispatcher landmarks around her location. At some point, the caller hung up but answered when the dispatcher called back and continued to try and relay the address, which was eventually determined by the cell phone satellite ping. No testimony was elicited at the hearing regarding who had called 911 or what crime or problem the caller had been reporting.

When the deputies arrived at the address provided by dispatch, they saw a woman parked in a car in an empty lot across from the address provided. The deputies approached the woman and asked if she knew why they had been dispatched to that location. The woman responded that she had no idea. As the deputies continued toward the house, and as the woman was pulling away to leave, she yelled out the window that her ex-boyfriend was inside the house and that he had a warrant out for his arrest and she stated his first name. At the hearing, the deputy testified that he could not remember what name she had given but remembered that it started with an "M" and thought it was either Michael or Matthew. The deputies did not know the name of this woman until after they had Mr. Lapace in custody.

The deputies proceeded to knock on the door of the house. Heather Lawson answered the deputies' knock but refused to open the door, stating that she had just been beaten up by an unknown woman. The deputies advised Ms. Lawson that the other woman was no longer there and that it was safe to come out. Ms. Lawson opened the door and appeared to be nervous and hesitant to speak to the deputies. She told them that a woman she did not know had knocked on her door and that they got into a physical altercation. Ms. Lawson had a cut on her foot and a red mark on her leg, where Ms. Lawson indicated that the unknown woman had bitten her.

The deputies asked Ms. Lawson if anyone else was inside the house. Ms. Lawson hesitated, looked back into the house, and stated, "No, and you can't come inside." The deputy testifying stated that he did not believe Ms. Lawson because the woman in the car had told them that there was a male inside and because Ms. Lawson seemed reluctant to answer any questions. At that point, the deputy testified that he believed there was a possible domestic dispute of some sort and believed that he needed to check on the welfare of anyone who may have been inside the house. The deputy acknowledged that based on the injuries observed on Ms. Lawson, any domestic battery would have been a first-degree misdemeanor.

Ms. Lawson was instructed to get her identification, and when she turned to go into the house, the deputies followed her inside. When Ms. Lawson realized they were trying to follow her inside, she again told them that they could not come in and continued to protest while the deputies proceeded to search the house.

Only one of the deputies testified at the hearing. The deputy testified that prior to knocking on the door, he did not hear any yelling or anything else coming from inside the house. There were no trails of blood or anything that would lead one to believe that someone was injured inside. Ms. Lawson had explained that her injuries were the result of a physical altercation with another woman. Once they entered the house, the deputy did not hear anyone crying, did not observe any blood, and did not hear anyone asking for assistance.

The deputy found Mr. Lapace hiding behind the door to a bedroom. Mr. Lapace was not in distress, he did not appear to need any medical attention, and the deputy did not observe any injuries on Mr. Lapace. Upon finding Mr. Lapace, the deputy physically grabbed Mr. Lapace's arms, put him belly down onto the bed, and put him in handcuffs. While Mr. Lapace was belly down on the bed, the deputy took his ID from his back pocket, ran his identification through dispatch, and learned that Mr. Lapace had a felony warrant. After Mr. Lapace had been detained, the deputy saw a laundry basket next to the bed, and on top of the clothes was a pipe commonly used for smoking methamphetamine. The deputy also noticed an open dresser drawer approximately two feet from the bed with narcotics inside. The deputy then searched through a bag and found a plethora of other narcotics. The deputy seized the property and took Mr. Lapace outside.

Mr. Lapace moved to suppress the physical evidence obtained as a result of the search, contending that contrary to the State's position, exigent circumstances did not justify a warrantless entry into the residence. The trial court denied the motion to suppress, finding that the deputies were entitled to enter the house without a warrant under the emergency aid exception to the warrant requirement. The trial court noted that a 911 call is a cry to authorities for help and found that the deputies would have been remiss in not entering the residence of an abandoned 911 call. The trial court reasoned that after seeing Ms. Lawson come outside with injuries to her body and noting her nervousness and her hesitance to speak to law enforcement, a common reasonable assumption would be that there was someone in the house that either may have injured this woman or that there may be other injured people inside the home.

The trial court's conclusion that the deputies' entry into the residence was lawful was error. In Brigham City v. Stuart, 547 U.S. 398 (2006), the Supreme Court set forth the principles of Fourth Amendment law:

It is a " 'basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.' " Nevertheless, because the ultimate touchstone of the Fourth Amendment is "reasonableness," the warrant requirement is subject to certain exceptions. . . . "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. " 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.' " Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Id. at 403 (alteration in original) (citations omitted).

Whether a warrantless search is justified by such an emergency is determined by the totality of the circumstances. See Zeigler v. State, 402 So. 2d 365, 371 (Fla. 1981). The "police may enter a residence without a warrant if an objectively reasonable basis exists for the officer to believe that there is an immediate need for police assistance for the protection of life or substantial property interests." Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006) (citing Rolling v. State, 695 So. 2d 278, 293-94 (Fla. 1997)). "[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). In addition, "an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists." Rolling, 695 So. 2d at 293.

The dispositive question in this case is whether the State met its burden of showing that the deputies reasonably believed that exigent circumstances existed that justified an immediate entry into the home without a warrant. See Dixon v. State, 36 So. 3d 920, 924 (Fla. 4th DCA 2010); see also Wheeler v. State, 956 So. 2d 517, 521 (Fla. 2d DCA 2007) ("Our analysis turns on whether the State was able to demonstrate that the deputies faced a grave emergency that made entry into Wheeler's home imperative."). If the State meets this burden, ordinarily the court must then determine whether the subsequent search of the house exceeded the parameters allowed if the entry was warranted. Seibert, 923 So. 2d at 468. However, neither of the parties here have raised any argument related to the scope of the search that was conducted after the deputies entered the house, and as such, any argument related to the scope of the search has been waived and will not be addressed by this court.

Here, the State contends that the deputies were justified in entering the residence because, under the totality of the circumstances, the deputies' suspicion of a medical emergency was based upon reasonable inferences drawn from the available evidence. However, the cases relied upon by the State are distinguishable from the facts of this case because in each of the cited cases, the officers' belief that there was an immediate need for their entry into the residence to address a medical emergency was based on more than just a suspicion of a "possible domestic dispute of some sort." See, e.g., Michigan v. Fisher, 558 U.S. 45, 45-56 (2009) (holding that exigent circumstances existed when officers responded to a disturbance complaint; observed a pickup truck with its front smashed, damaged fence posts, broken house windows with glass still on the ground, blood on the hood of the pickup and on clothes inside the pickup, and blood on one of the doors to the house; and could see the defendant inside the home, with a cut on his hand, screaming and throwing things, and arming himself with a gun); State v. Shillingford, 136 So. 3d 1242, 1244 (Fla. 5th DCA 2014) (holding that exigent circumstances existed when officers were summoned to investigate a domestic battery and observed a blood trail leading to the defendant's apartment and heard moaning coming from within the apartment); C.L.L. v. State, 115 So. 3d 1114, 1116 (Fla. 1st DCA 2013) (holding that exigent circumstances existed when officers responded to a 911 hang-up where a disturbance could be heard in the background and upon arrival observed a man with blood on his hands but no injury and admitted to being in a fight but claimed that the other participants had left); United Sates v. Barone, 330 F.2d 543, 544 (2d Cir. 1964) (holding that exigent circumstances existed where officers heard screams coming from apartment).

In the instant case, the State does not argue that the deputies encountered any screaming, suspicious sounds, blood, or other readily apparent disturbance when they arrived at the residence. The State argues that based on the totality of the circumstances, the deputies could reasonably believe that there was an ongoing domestic dispute based on the 911 call, the information from the unidentified woman, and Ms. Lawson's suspicious behavior and injuries. We consider each of these circumstances in turn.

The 911 call

The deputies were dispatched to the residence in response to an unknown law enforcement problem call. When they arrived, the deputies were armed only with the information that a person had called 911, was unable to give her exact address, and was providing landmarks to assist in locating the residence.

"Exigent circumstances have been determined to exist when 911 calls were received, even in cases when the callers did not identify a life-threatening emergency, when the officers arrived at the source of the 911 call to find suspicious circumstances at the residence." Seibert, 923 So. 2d at 469. The focus of the inquiry is on the reasonableness of the officers' belief that an emergency existed at the time of entry. Id. at 468.

In In re J.B., 621 So. 2d 489, 489 (Fla. 4th DCA 1993), the officers were responding to a home that was the source of a 911 call where the caller hung up without speaking or requesting assistance. In finding that the officers acted lawfully in trying to enter the home, the court analogized a 911 call to screams for help. Id. at 490. The court also discussed the fact that the 911 system is used to report crimes and injuries requiring immediate assistance and that a disconnect could happen for a myriad of reasons and did not mean the emergency was over. Id. at 490-91. Given that "[a] 911 call is a cry to the authorities for help" and that the officers observed a window with a broken screen and trash all over the front room, taken together with the defendant's unusual behavior, the court in J.B. concluded that the investigating officer had a duty to investigate until he was satisfied that no emergency existed. Id. at 491.

Similarly, in Dixon, the court held that the officers had a duty to investigate a 911 call; however, in order to justify a warrantless entry and search of the apartment, the State was required to prove that exigent circumstances existed that required entry into the apartment immediately without a warrant. Dixon, 36 So. 3d at 924. When the officers first arrived at the apartment, before they entered, the defendant and his girlfriend informed them that the robbers had already left the apartment. Id. The testifying officer did not observe evidence of an ongoing burglary, which may have required immediate entry without a warrant. Id. Furthermore, the officer did not testify that he was concerned that there could be victims inside the apartment who needed immediate assistance. Id. Based on those facts, the court held that the observations by the officer did not support the warrantless entry into the apartment. Id.

Here, the deputies certainly had a duty to investigate the 911 call until they were reasonably satisfied that no emergency existed or that a once-urgent situation was no longer urgent. However, the deputies were not entitled to enter the home once they determined that any emergency had dissipated. In the instant case, Ms. Lawson came to the door and gave a plausible explanation for the injuries on her foot and leg, which the deputies were able to corroborate because they saw a woman drive away from the house upon their arrival. The deputies did not hear anything within the residence that would lead them to reasonably conclude that someone in the residence was in distress. They did not observe any evidence of an ongoing domestic dispute, which might have required immediate entry without a warrant. Accordingly, any exigency that may have existed and prompted the 911 call had dissipated by the time the deputies arrived and received the initial explanation from Ms. Lawson that she was battered by an unknown woman, whom the detectives had seen fleeing the scene.

The information from the unidentified woman in the car

After they arrived, the deputies saw an unidentified woman parked in a car across from the residence. When they approached the woman, she stated that she did not know why they were called, but as the deputies began approaching the residence and the woman was driving away, the unidentified woman rolled her window down and shouted to the deputies that her ex-boyfriend was in the house and there was a warrant out for his arrest. The deputy testified that she also stated her ex-boyfriend's name but that he could not recall whether she said Michael or Matthew. He thought the name started with an "M."

An anonymous tip may provide the basis for conducting a warrantless entry to render emergency assistance or to protect someone from imminent injury. But for an anonymous tip to justify a warrantless entry, the tip—considered in the context of the totality of relevant circumstances—must provide an "objectively reasonable basis" for the officer "to believe that there is an immediate need for police assistance." Seibert, 923 So. 2d at 468.

Anonymous tips, which are more susceptible to abuse than a tip by a known informant, may be less reliable than other investigative leads. See Florida v. J.L., 529 U.S. 266, 270 (2000). The government's interest in conducting a search based upon an anonymous tip, therefore, is usually measured by examining the tip's "indicia of reliability." Id. Generally, a search based upon an anonymous tip withstands scrutiny under the Fourth Amendment only if the tip contains sufficient details and information that can be independently corroborated by the police to establish a level of reliability regarding the information in the tip. Id. at 270-71.

Here, the woman did not give her name, did not give her ex-boyfriend's full name, did not give a physical description of her ex-boyfriend, and gave no information regarding the type of warrant allegedly outstanding. The record is devoid of any details that would provide support for the conclusion that the anonymous tip was reliable. The tip provided no basis for concluding either that anyone in the house had suffered any injury or that anyone in the house was at risk of imminent injury. The vague statements concerning an "ex-boyfriend" and a possible warrant are insufficient to establish that it was necessary for the deputies to enter the house "to protect an occupant from imminent injury." See Vanslyke v. State, 936 So. 2d 1218, 1224 (Fla. 2d DCA 2006) (quoting Brigham City, 547 U.S. at 402) (holding that even a reliable report that children were living in a house with drugs and guns would not show the existence of an exigency justifying a warrantless search without an additional showing of a specific threat of imminent harm to the children in the house). That the tip proved accurate and that the officers acted with good intentions does not alter the legal conclusion that the search was improper. See J.L., 529 U.S. at 271 ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.").

Ms. Lawson's behavior

In denying the motion to suppress, the trial court considered Ms. Lawson's "demeanor, her behavior, her conduct" in finding that the deputies had an objectively reasonable basis for believing that there was an emergency that required immediate police attention.

Allowing police to use a resident's reaction to law enforcement's presence at their home and the resident's contemporaneous clear expression of unwillingness to engage with the officers "as the only extra information necessary to confirm whatever suspicion brought [the officers] to the door in the first place . . . would . . . unjustifiably erode 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion'—which stands '[a]t the very core' of our Fourth Amendment protections." Calloway v. State, 118 So. 3d 277, 280 (Fla. 5th DCA 2013) (second alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31 (2001)). Here, Ms. Lawson's reaction to the deputies' presence at her home, together with her unwillingness to allow the deputies into the house, cannot satisfy the requisite showing of an objective belief that there was an ongoing emergency that required the immediate attention of the police. Even when Ms. Lawson's behavior is combined with the information from the anonymous tip—that there was a man in the house, who had an outstanding warrant—and the unknown law enforcement problem call, it was not objectively reasonable for the deputies to believe that there was an ongoing or imminent emergency that required their immediate attention.

There was no objective basis for the deputies to fear for anyone's safety. The deputies responded to the residence and came upon a quiet scene. The deputies observed no noise that would indicate a disturbance, no screaming, no blood, nor anything else that would indicate that there was a domestic disturbance taking place. The only information the deputies had prior to entering the house was that they were responding to an unknown law enforcement problem call based upon a 911 call from a person who did not know her exact address, that there may have been a man inside the house who had a warrant out for his arrest, that Ms. Lawson had a cut on her foot and a bite mark on her leg that she claimed was the result of an altercation with an unknown woman, that an unknown woman had just driven away from the house, and that, based on a hunch, there may have been a "possible domestic dispute of some sort." This was not enough to form an objectively reasonable basis to believe that there was an immediate need for police assistance for the protection of life.

We conclude that the deputies lacked an objectively reasonable belief that there was an ongoing or imminent emergency that required immediate police attention. The entry into the house and subsequent search without a warrant were in violation of the Fourth Amendment. All physical evidence derived from the initial unlawful search should have been suppressed. Accordingly, we reverse Mr. Lapace's convictions and sentences in case number 2016-CF-3094 and remand for further proceedings consistent with this opinion. Reversed and remanded.

When is a Tip Not Enough?

Welcome back! It’s been a great year here at hatejail.com and I’m hopeful that your year has been just as good as mine. I’m planning on kicking my legal writing back into high gear for the rest of 2018 and onward, so buckle up for some in-depth legal analysis of recent district court opinions. As always, criminal law is a complicated, fact-specific area of the law and the opinions below do not constitute legal advice. If you find yourself arrested and charged with a crime, it is extremely important that you reach out to an attorney such as myself who can guide you through the process and provide you with a vigorous defense.

I thought I would start with a case hot off the presses from the Fourth District Court of Appeals: J.H. (a juvenile) v. State, 4D17-2466 (link to PDF, full text below). In this case, a citizen informant called 911 and informed the police that there were “drug dealers” on the corner: specifically, three black males two of whom were wearing white shirts. Crucially, the person making the call did not say why s/he believed that the individuals were “drug dealers"; s/he didn’t say that she had seen drugs or drug transactions, but merely that the individuals were hanging around and would leave if/when the police drove by. In response to the call, police officers went to the area and saw one black male in a white shirt go behind an apartment complex. They followed him and saw two black juveniles (neither of whom were wearing a shirt) in the alley behind the complex. The police gave the juvenile orders to come to them and remove their hands from their pockets. Only after giving that order did the police witness criminal activity; they discovered cocaine and a firearm on the juvenile.

As far as the law is concerned, when the officer ordered the juvenile to come towards her and remove his hands from his pocket, he had been seized under the Fourth Amendment. An investigative detention, also called a Terry stop, must be supported by reasonable articulable suspicion that criminal activity is afoot. The tip provided by the citizen did not provide any basis for suspicion, because had the police officers themselves observed the activity that the citizen called 911 about, the police themselves would not have had sufficient suspicion to stop J.H. As the Court stated:

However, if an officer merely saw individuals, whom the officer knew were involved with drugs, standing on a corner, and the only other activity that the officer witnessed were those individuals disappearing when a police vehicle passed, the officer may have a bare suspicion but not a founded suspicion that criminal activity was occurring.

In addition, the officers did personally observe anything beyond the minimal information from the tip upon their arrival that would have created more suspicion that J.H. was engaged in some criminal activity. In fact, the officers’ observations did not even match the observations of the citizen as to the number of individuals wearing white shirts. Because there was no founded suspicion, the seizure was unlawful and all evidence that was discovered pursuant to that unlawful seizure should have been suppressed and not allowed to be used against the juvenile.

If you or someone you know is in a similar situation, reach out to me now so that we can begin to prepare your defense!

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

J.H., a child,

v.

STATE OF FLORIDA,

WARNER, J.

Appellant challenges the trial court’s denial of his motion to suppress evidence, which he claims was gathered after an unlawful stop without reasonable suspicion. Officers stopped appellant after a 911 caller from a restaurant, stated that drug dealers were out in front of the restaurant. Based upon the totality of the circumstances, we agree with appellant that the officer lacked reasonable suspicion to stop appellant. We reverse.

A dispatcher from the West Palm Beach Police Department received a 911 call mid-day from a person identifying herself as having a restaurant on Sapodilla Avenue in West Palm Beach. The caller reported that drug dealers were on the corner. She described them as three black males, two of whom were wearing white t-shirts. She did not describe any drug selling activity, but she said that as soon as they would see a police vehicle, they would disappear and come back immediately. She said the drug dealers moved between a few blocks around the restaurant. The caller complained that she had customers from all over South Florida, but as soon as they would see “that,” the customers would be scared. The dispatcher told the caller that someone would be there to check things out.

An officer with some familiarity with the neighborhood, which she described as a high crime area, was dispatched to investigate a “suspicious person” call. According to the officer, she was told that there were three black males on the corner of 7th and Sapodilla possibly selling drugs. They were wearing t-shirts and shorts. However, the restaurant caller did not mention shorts in her 911 call. When the officer and her partner got to the corner, she observed one adult black male in a white t-shirt. When this individual saw the police vehicle, he began walking to the rear of the building, an apartment complex. There were no other persons in the area.

The officers exited their vehicle, started walking down the alley towards the building, and ordered the male to stop. He continued walking to the rear of the apartment complex. As the officer rounded the corner, she saw two black juvenile males, wearing no shirts and peeking into an apartment window. The officer recognized appellant, J.H., as one of the boys peeking into the window because he had been in the area on a prior call to which she had responded. The officer knew that J.H. lived in the apartment complex.

When the juveniles saw the officer, they began walking down the alley in the other direction. Then they saw another officer at the other end of the alley. At that point, they reached into their pockets, and the first officer ordered them to stop because she was nervous for her safety and that of other officers on the scene. The officer ordered J.H. to walk towards her and to take his hands out of his pocket. As he approached her, she saw a container in his hand. It was a white, cylindrical container with a red cap and appeared to be a Krazy Glue container with the label off. Based on her training and experience, she knew that these containers are commonly known to hold crack cocaine. She conducted a pat-down search of J.H. for weapons and found a handgun. She then arrested him. Prior to seeing the Krazy Glue container, the officer had witnessed no criminal behavior by J.H.

The State charged J.H. as a delinquent in possession of a firearm, possession of cocaine while in possession of a firearm, and carrying a concealed weapon. J.H. moved to suppress the cocaine and the gun, contending that their seizure was the result of a stop unsupported by reasonable suspicion. The State contended that the officers had received a call from a citizen informant, thus making the call on the higher end of reliability. Based upon the totality of circumstances, the officers had reasonable suspicion to stop J.H. and seize the drugs and weapon. The defense argued that the boys did not match the description given by the caller, and there was no reasonable suspicion to detain J.H. when the officers surrounded J.H. in the alley and ordered him to stop and to take his hands out of his pocket.

The trial court found that the 911 caller was a readily identifiable citizen informant because she gave the name of the restaurant and its address. As a citizen informant, the caller’s information is at the high end of the reliability scale and can justify a reasonable suspicion. The court ruled that the officer had a reasonable suspicion, based on the content of the 911 call by a citizen informant, to detain J.H. Additionally, the court ruled that the action of all three of the suspects of reaching into their pockets, plus the sight of the glue container, which was commonly known to hold crack cocaine, justified a stop and frisk. Considering the totality of the circumstances, the higher veracity and reliability of the citizen informant, and the three men’s actions in walking away and their subsequent actions in the alley, the court denied the motion to suppress.

Thereafter, J.H. entered a no contest plea and reserved the right to appeal the denial of his motion to suppress. The State conceded that the motion to suppress was dispositive. J.H. was adjudicated delinquent and sentenced to a non-secure residential program under the Department of Juvenile Justice. J.H. now appeals.

In reviewing a motion to suppress, “appellate courts . . . accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” Connor v. State, 803 So. 2d 598, 608 (Fla. 2001); see also Ornelas v. United States, 517 U.S. 690, 699 (1996). “The standard of review of the findings of fact is whether competent, substantial evidence supports the findings.” Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). But the courts review the trial court’s application of the law to the facts de novo. Id.

There are three levels of police-citizen encounters: consensual encounters, investigatory stops, and full-blown arrests. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). “During a consensual encounter a citizen may either 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.” Id. During the second level of police-citizen encounter, an investigatory stop is involved. Police “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. It “requires a well-founded, articulable suspicion of criminal activity.” Id. The third level of police-citizen encounter, an arrest, “must be supported by probable cause that a crime has been or is being committed.” Id. This case involves the second level of encounter and requires us to analyze whether the officer had a wellfounded suspicion of criminal activity when she ordered J.H. to stop.

“Tips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action.” J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff’d sub nom. Florida v. J.L., 529 U.S. 266 (2000). The trial court found that the 911 caller was a citizen informant. Even though she declined to give her name, her identity was readily ascertainable, as she gave the name of the restaurant from which she was calling. See State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001) (finding that to qualify as a citizen informant, a person’s name need not be known so long as the person’s identity is readily discoverable).

However, “founded suspicion is dependent on both the informant’s reliability and the content of the information she relays; courts consider both factors in determining whether the totality of the circumstances justifies a stop.” Ford v. State, 783 So. 2d 284, 285 (Fla. 2d DCA 2001 (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)). In Ford, a citizen informant approached police and stated that she had just seen a black man approach an older white man in front of a store. Id. The white man put something in his pocket and handed the black man cash. Id. The informant believed she had witnessed a drug transaction. Id. Officers located Ford, the white man, and they stopped him, searched him, and found drugs. Id. In overturning the denial of a motion to suppress, the Second District determined that the citizen’s information did not provide a founded suspicion to stop Ford. Id. at 286. The only information that the citizen conveyed was observing a white man hand a black man money and receive something in return, activity which was as consistent with legal behavior as it was with a drug transaction. Id. Thus, the officers did not have a founded suspicion to detain Ford.

Applying the analysis of Ford to this case, the information provided by the citizen informant was that three drug dealers, who were black men, were standing on the corner near her restaurant. The informant did not state how she knew they were drug dealers, nor did she state that she saw them selling drugs. At least two were wearing white t-shirts. They would move up and down the block, and when they saw a police vehicle, they would disappear, only to reappear after the police vehicle passed. This information does not describe any criminal activity at all, whether it is information supplied by a citizen informant or witnessed by police. “A hand-to-hand exchange can warrant a detention when a law enforcement officer sees what transpires and his training and experience lead him to believe he has witnessed a drug transaction.” Id. However, if an officer merely saw individuals, whom the officer knew were involved with drugs, standing on a corner, and the only other activity that the officer witnessed were those individuals disappearing when a police vehicle passed, the officer may have a bare suspicion but not a founded suspicion that criminal activity was occurring.

Considering the totality of the circumstances, the remaining observations of the officer also do not provide founded suspicion to stop J.H. After following one white-shirted individual down the alley, the officer observed J.H. and another juvenile, both of whom were shirtless, looking into an apartment window. The officer did not testify that J.H. was known to have previously engaged in drug dealing; she merely knew that he lived in the apartment building. This information does not increase suspicion of drug dealing, nor does it match the description given by the citizen informant, who stated that at least two of the drug dealers wore white tshirts. The informant never mentioned how the third was dressed. The fact that J.H. began to walk away from the officer, until he saw the other officer coming up the alley from the other direction, does not add anything to support founded suspicion, because “reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears.” R.J.C. v. State, 84 So. 3d 1250, 1256 (Fla. 4th DCA 2012). While “headlong flight” from an officer in a high crime area may warrant founded suspicion to justify a Terry stop, see Illinois v. Wardlow, 528 U.S. 119, 124 (2000), this was not “headlong flight.” See also Lee v. State, 868 So. 2d 577, 581-82 (Fla. 4th DCA 2004) (finding no evidence of “headlong flight” where man walked quickly away from other suspects when police arrived, but there was no other suspicious activity). J.H. was walking away from the officer in an alley in which his home was located.

The officer ordered J.H. to stop and then ordered him to take his hands out of his pocket before the officer observed the glue container which she testified was indicative of a drug container. She had no founded suspicion of criminal activity prior to seeing the container. In fact, she testified that she had seen nothing to suggest criminal behavior before seeing it.

J.H. was detained when the officer ordered him to stop. Because the officer had no founded suspicion of criminal activity, the stop violated the Fourth Amendment. We therefore reverse and remand with directions to dismiss the petition.