
    Larry Charles WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2964.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    
      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Larry Williams appeals his judgment and sentence for possession of cocaine and marijuana. Williams argues that the trial court improperly denied his motion to suppress because the police lacked a founded suspicion to stop Williams. We affirm.

The following facts were established at the hearing on the motion to suppress and were the basis for the trial court’s ruling. The arresting officer, a St. Lucie County deputy, was an experienced narcotics law enforcement officer. On the day of Williams’ arrest, at approximately 1:00 a.m., the deputy and his partner approached a vehicle with a female occupant in a parking lot near a night club. The deputy was clothed in apparel identifying him as a law enforcement officer. Upon approaching the vehicle, the deputy looked inside the vehicle and noticed a crack cocaine pipe in plain view. A criminal investigation ensued. The deputy returned to his vehicle to continue his investigation when he noticed Williams approach the driver’s side of the vehicle, lean in toward the driver’s side window, and begin speaking with the female occupant. Upon seeing Williams, the deputy asked Williams: “Hey man, what’s going on? What are you doing?” Williams became startled and took a step back at which point, the deputy noticed Williams’ clenched fist. The deputy could not recognize anything in Williams’ hand, but “it was very suspicious” to him and he feared the possibility that Williams was clenching a weapon or drugs. The deputy provided an example in which a weapon could be concealed in a clenched hand. Williams started to walk away and the deputy attempted to stop Williams by saying: “Hey man, where are you going? Come here, let me talk to you.” Williams turned around, unclenched his fist, and dropped what turned out to be cocaine. The trial court denied the motion to suppress, reasoning that the deputy had reasonable suspicion to stop Williams based on the totality of the circumstances.

Williams argues that the evidence does not support the trial court’s conclusion that the deputy possessed reasonable suspicion to stop him. The State counters that the factual circumstances justified a stop. In the alternative, the State argues that the encounter between the deputy and Williams was consensual. We reject the State’s alternative argument without further comment.

When reviewing a trial court’s order on a motion to suppress evidence, we defer to the trial court’s factual findings but review legal conclusions de novo. Castella v. State, 959 So.2d 1285, 1289 (Fla. 4th DCA 2007).

To detain a person for investigation, an officer must have a reasonable suspicion, based on objective, articulable facts, that the person has committed, is committing, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Whether an officer has a ‘founded suspicion’ for a stop depends on the totality of the circumstances ... in light of the officer’s knowledge and experience.” Ippolito v. State, 789 So.2d 423, 425 (Fla. 4th DCA 2001). However, a bare suspicion or “mere ‘hunch’ that criminal activity may be occurring is not sufficient.” Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002). Factors that may be considered in establishing reasonable suspicion include: “the time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” May v. State, 77 So.3d 831, 834 (Fla. 4th DCA 2012) (quotations and citations omitted).

The cumulative impact of a number of factors leads us to conclude that the deputy had a reasonable basis for suspicion that Williams was or had been engaged in criminal activity. See State v. Jenkins, 566 So.2d 926, 927 (Fla. 2d DCA 1990) (recognizing that the cumulative impact of independent factors may provide sufficient basis for reasonable suspicion of criminal activity). First, it was 1:00 a.m. in a dark parking lot. Second, located in the parking lot was a vehicle in which the deputy had just discovered a crack pipe. Third, Williams approached this vehicle and proceeded to lean into the vehicle and engage with its occupant, who was under active investigation. Finally, after engaging with the occupant of the vehicle, the deputy asked Williams what he was doing and Williams started to leave the scene with a clenched fist. When considered in light of the deputy’s extensive training and field experience, including both narcotics investigations and experience with small weapons that could be concealed within a fist, these facts provide justifiable reasons to suspect that Williams possessed either drugs or a weapon within his clenched fist. See, e.g., May, 77 So.3d at 834 (explaining that it is not absolutely necessary for an officer to observe drugs or money change hands in order to support a reasonable suspicion that a drug offense was committed and deference should be given to the officer’s perspective); Gentles v. State, 50 So.3d 1192, 1198 (Fla. 4th DCA 2010) (noting that in certain circumstances, “[a] temporary detention of an individual may be justified by an officer’s specific concern for his own safety”).

Williams argues his approaching the vehicle, engaging the driver of the vehicle in conversation, and the deputy merely observing him with a clenched fist, without any indication of a drug transaction, is an insufficient reason to justify conducting an investigatory stop. Williams emphasizes that he did not attempt to flee when he was asked to stop. Citing to Kearse v. State, 384 So.2d 272, (Fla. 4th DCA 1980), Williams asserts that the deputy acted on bare suspicion rather than articulable, reasonable suspicion of criminal behavior. Id. 273-74 (holding that an officer may not conduct an investigatory stop without well-founded suspicion that the defendant is committing or will imminently commit a criminal offense). We find none of the cases cited by Williams persuasive. In Huntley v. State, 575 So.2d 285 (Fla. 5th DCA 1991), a police officer observed defendant in a high crime area standing close to a young black male. Id. Both appeared to be exchanging something multiple times. Id. No reasonable suspicion was found. Id. at 286. Likewise, in Stanton v. State, 576 So.2d 925 (Fla. 1st DCA 1991), no reasonable suspicion was found where defendant stood at the passenger side of parked vehicle, extending his arm into the vehicle. Id. at 926, 927. Finally, in Hewlett v. State, 599 So.2d 757 (Fla. 2d DCA 1992), the court held that officers lacked reasonable suspicion to stop a vehicle based on the fact that the vehicle and three males who were previously standing next to the vehicle left the area upon the officers’ approach. Id. at 757, 758.

None of these cases involved the circumstances present here, and none rise to the level of reasonable suspicion even when considering their cumulative effect. Jenkins, 566 So.2d at 927. Specifically, none of the cases cited by Williams involve a suspect’s interference with an ongoing and obvious investigation.

Affirmed.

KLINGENSMITH, J., concurs.

TAYLOR, J., concurs in result only.

TAYLOR, J.,

concurring in result only.

I concur in the majority decision to uphold the denial of the defendant’s motion to suppress, but not because I agree that the officer had a founded suspicion to stop Williams for interference with his criminal investigation. Founded suspicion requires more than a “hunch” or a “bare” suspicion to validate the stop. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Kearse v. State, 384 So.2d 272, 274 (Fla. 4th DCA 1980); § 901.151(2), Fla. Stat. (2010). Here, the mere fact that Williams walked up to the driver in a parked vehicle and then quickly backed way with a clenched hand after becoming aware of the presence of police officers did not give rise to a well-founded suspicion that Williams had committed, was committing, or was about to commit a criminal offense.

The deputy testified that when Williams approached the driver’s side of the vehicle and leaned inside, the deputy was several feet away checking the driver’s identification with the Sheriffs Office dispatch. The deputy could not overhear the conversation between Williams and the driver, and the deputy did not see Williams do anything to disrupt his investigation. When the deputy noticed Williams, he asked him what he was doing. Williams, who appeared startled upon seeing the deputy, took a step back and then walked past him. The deputy observed that Williams’ right hand was clenched, but he could not see if he had anything in his hand. The deputy just felt that “it was obviously very suspicious.” These facts simply do not support a reasonable suspicion of criminal activity for an investigatory stop.

That said, however, I would nonetheless affirm the denial of the motion to suppress, because the evidence in this case does not show that the defendant complied with the officer’s request to stop before he dropped the cocaine. Therefore the defendant was not unlawfully seized and the Fourth Amendment was never implicated. When the deputy attempted to stop Williams, Williams simply turned around and dropped a crack cocaine rock. “[A]n unlawful seizure takes place only if the person either willingly obeys or is physically forced to obey the police request. As such, there is no unlawful seizure when the person ‘drops then stops,’ even where the drop occurs after an order to stop.” State v. Woods, 680 So.2d 630, 631 (Fla. 4th DCA 1996) (holding that defendant was not unlawfully seized before he dropped the handgun and cocaine while fleeing officer, although officer was three to four feet behind defendant when he turned around and dropped the items); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (a seizure requires either physical force or submission to a show of authority); Johnson v. State, 640 So.2d 136, 137-38 (Fla. 4th DCA 1994) (holding that no unlawful seizure of defendant occurred before defendant voluntarily abandoned cocaine rocks; he dropped the drugs after the officer asked him to stop but before he willfully-obeyed, and the officer did not physically force the defendant to obey his request to stop); State v. A.M., 788 So.2d 398 (Fla. 3d DCA 2001) (holding that juvenile was not seized by police officer where juvenile had refused to stop and began to walk away after officer tried to question him).

Viewing the testimony and all inferences in the light most favorable to sustaining the trial court’s denial of the motion to suppress, I would conclude that the defendant was not unlawfully seized before he discarded the drugs. For that reason, I concur in the decision to affirm.  