DEFENDANT, by and through his undersigned counsel and pursuant to Rule 3.190(g), Florida Rules of Criminal Procedure, hereby moves this Honorable Court to suppress certain evidence in this cause. In support thereof, Defendant states as follows:


Defendant was arrested on Friday, November 5, 2012 for possession of a concealed firearm, a third degree felony, in violation of F.S. §790.01(2). This firearm was in his pocket. A copy of the Arrest and Booking Report is attached hereto as Exhibit A. [remaining background information omitted]


  1. Defendant and his friend, John Rodriguez, were both lawfully present at the Mission Springs Apartments at the time of Defendant’s encounter with police, and his arrest. John’s aunt lived at the apartments.
  2. Officers Frisk and Hunch were both Jacksonville Sheriff’s Officers, but were employed on that day as off-duty security guards for the Mission Springs Apartments. Ex. C at 8:1-8 and Ex. D at 7:20-23.
  3. Defendant and John were standing in the vicinity of apartment building 33 when the officers approached, both in separate vehicles. Ex. C at 14:1-3 and 15:6-7. Officer Frisk was in a marked car. Officer Hunch was in an unmarked car [remaining citations omitted]. Both were in uniform. The officers testified they saw the boys standing there, and, perceiving that they appeared to be under the age of 18, approached to inquire with them about a possible truancy matter.
  4. Defendant’s school, Pathways Academy, would have released him at 1:16 p.m. at the time of this Friday, November 5, 2012 incident. However, the officers did not approach Defendant until 1:23 p.m.- some seven minutes after Defendant would have been released from school. Indeed, the arrest was at 1:30 p.m.- a full 14 minutes after school was out. Defendant’s school is located close to the Mission Springs Apartments.
  5. The officers had no reasonable suspicion that Defendant was truant at the time of the confrontation with him for, inter alia, the following reasons: (a) as noted, Defendant’s school day was over; (b) the officers had no idea whether or not the boys had graduated high school; (c) the officers had no idea whether the boys were home schooled; (d) the officers had no idea whether the boys had permission to be out of school; (e) the officers had no idea as to whether the boys had been suspended or expelled from school; and (f) the officers had no idea as to whether the boys were in the presence of a parent or legal guardian.
  6. The sole factor upon which the officers relied to assert their claim of reasonable suspicion was their perception that the boys appeared to be under the age of 18. The first question asked by the officers was whether or not the boys had identification. Both boys responded, “no,” although Defendant was searching his pockets to see if he had any.
  7. When Officer Frisk saw Defendant as he “attempted to place his right hand in his pocket,” Officer Hunch grabbed Defendant’s wrist, made him put his hands behind his back, held both of Defendant’s hands, and proceeded to pat Defendant down.
  8. During the pat down, Officer Hunch felt what he believed to be a handgun in Defendant’s right front pocket. He immediately placed Defendant in handcuffs and then conducted a search of Defendant’s person, recovering small 22 caliber Derringer style handgun. Defendant was subsequently arrested and charged with carrying a concealed firearm, a third degree felony under Section 790.01(2), Florida Statutes.
  9. Applicable Law

  10. JSO procedures on truancy investigations require officers to determine “in which school the juveniles are enrolled.” A copy of the JSO truancy investigation procedures are attached hereto as Exhibit E. At no time was Defendant asked in which school he was enrolled. In addition, the JSO truancy policy requires the officer to determine “the school hours” and allows the officers to detain juveniles for “up to one hour before school ends without a justifiable reason.” Again, Defendant was never asked such a question, nor was the answer ever determined. Indeed, as noted, the officers encountered Defendant after he was lawfully out of school, not before he got out of school. Thus, under their own policy, the officers had no authority to detain Defendant- even if they had properly ascertained the school attended by Defendant, and the time he got out of school.
  11. In summary, prior to the search of Defendant, the officers had no well-founded suspicion of truancy.
  12. Under Section 901.151, Florida Statutes, the “Florida Stop and Frisk Law,” officers are permitted to detain a person under circumstances which reasonably indicate they are committing a violation of the criminal laws. Truancy is not a crime. Thus, the officers had no authority to detain Defendant under that statute.
  13. Moreover, even if the officers had lawfully detained Defendant under that statute, unless they had probable cause to believe that he was “armed with a dangerous weapon,” they had no authority to search him.
  14. Both officers testified that they had no such probable cause. Thus, that illegal search must be suppressed, by operation of the Stop and Frisk Law itself. F.S. §901.151(6) specifically provides that evidence obtained in violation of the Stop and Frisk Law must be suppressed-apart and aside from other applicable Fourth Amendment case law.
  15. The State of Florida relies on the fact that Defendant had his hand in his pocket at the time of the search. This rendition of events, however, is incorrect, as the Arrest and Booking Reports clearly states that Defendant merely “attempted to place his right hand in his pocket.”
  16. Defendant’s hand never made it into his pocket. Moreover, even if Defendant had placed his hand (or both hands) into his pocket(s) during the stop for a non-criminal infraction, this would not justify reasonable suspicion for the police to conduct a pat-down search. D.B.P. v. State, 31 So. 3d 883 (Fla. 5th DCA 2012).
  17. Indeed, the facts in D.B.P. are virtually identical to ours, including the following: (a) juvenile put both hands in his pocket when the officer approached him; (b) Officer told juvenile to place hands out of pockets- but the juvenile refused; (c) When the juvenile failed to remove his hands from his pockets, the officer had him place his hands above his head, then patted him down, and felt the handle of a handgun- then took him into custody.
  18. The court in D.B.P. held that these factors did not justify reasonable suspicion for the police to conduct a pat down or to conduct a regular search. Id. The court specifically stated: “The mere thrusting of one’s hand in one’s pocket in front of police does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous.” Id. That holding applies in the instant case, given the fact that the officers never even instructed Defendant to remove his hand from his pocket, and given that Defendant only had a portion of one hand in his pocket, not two. Indeed, Defendant was lawfully looking for identification, which had previously been requested by the officers.
  19. Moreover, the officers in the instant case have testified that they observed no bulge in Defendant’s pocket. Thus, they had no “objective indication that the juvenile was carrying a weapon in his pockets. Id. at 4.
  20. There are countless “hands in pocket” cases that parallel the holding of D.B.P. In State v. Barnes, 979 So. 2d 991 (Fla. 4th DCA 2008), even though the defendant was nervous and had his hands in his pockets, the officers could not properly believe that he was armed and dangerous so as to support a pat down search. Id. As in this case, the officers did not observe a bulge in Barnes’s pockets, nor did Barnes engaged in any violent behavior that could give rise to a reasonable belief that a weapon might be present. Id.
  21. Similarly, in Ray v. State, 849 So. 2d 1222 (Fla. 4th DCA 2003) the deputy testified that Ray was reluctant to remove his hands from his pockets. The Court held that this was insufficient to establish a reasonable suspicion that Ray was armed with a dangerous weapon.
  22. In E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991), the officer expressed concern that E.H. kept reaching into his pocket but, as in the instant case, there was no testimony that the officers observed a bulge in E.H.’s pocket or made any other observations which caused him to believe that a dangerous weapon might be present. Id. Accordingly, the court held that the officer did not have probable cause to believe E.H. was armed with a dangerous weapon.
  23. In Delorenzo v. State, 921 So. 2d 873 (Fla. 4th DCA 2006), an officer saw Delorenzo put his hand into his pocket, but did not see a bulge and saw no threatening gesture. The court held that the officer had no reasonable basis to fear for his safety, and the stop was illegal.

In summary, in the instant case, the officers had no articulable suspicion to conclude that Defendant was truant. Even if they possessed such suspicion, truancy is not a crime and the officers were obliged to ask appropriate question prior to taking Defendant into custody (which would have revealed that his school was already out and that they could not have taken him into custody). Their custodial pat down and search of Defendant violated both the Stop and Frisk Law as well as the case law noted above, and detaining and searching Defendant was done without just cause.

WHEREFORE, Defendant respectfully requests that his Motion be granted and the evidence seized from Defendant at the time of his arrest be suppressed.