DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          HENOCK DIEUJUSTE,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

              Nos. 4D17-3842, 4D17-3858, and 4D17-3867

                               [May 15, 2019]

   Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara R. Duffy, Judge; L.T. Case Nos.
15-0547CF10A, 15-6593CF10A, 17-2606CF10A.

  Carey Haughwout, Public Defender, and Jaime Lapidus, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Appellant challenges the denial of his motion to suppress, after which
he pled guilty and was convicted of possession of cocaine. This conviction
also formed the sole basis for revocation of probation in two other cases,
all of which have been consolidated in this appeal. He contends that he
was stopped by law enforcement without a reasonable suspicion, thus
tainting the ensuing search. We agree that reasonable suspicion did not
exist to stop appellant and reverse.

    The State charged appellant with possession of cocaine after drugs were
found on appellant after a stop in a shopping center parking lot. He moved
to suppress the evidence. At the hearing on the motion, only one officer of
the four present during the incident testified. This officer testified that he
was dispatched based on an anonymous call regarding a black male with
dreads, wearing designer pants with glitter on the back side of the pants,
standing by a convertible black Camaro parked in front of a liquor store.
The anonymous caller said that the individual was dealing drugs out of
the vehicle. The caller described the car as being “filled with drugs.” The
officer responded to the location, which was in a shopping center. In
addition, at least four other officers responded, although it is unclear from
the record or the videos produced how many sheriff’s vehicles were
present.

   When the officer arrived, he observed a black Camaro, with a male
matching the description from the anonymous call standing at the driver’s
side of the Camaro, and appellant was standing at the passenger side. Two
other individuals were seated in the vehicle. The officer did not conduct
any surveillance or observe any illegal conduct as he approached. As soon
as appellant saw the officer, who was in uniform, get out of the police
vehicle, appellant walked quickly back to the vehicle door, bent down, and
was pulling on the center console. The officer was directly behind him,
and the officer pulled his gun as appellant bent down. He ordered
appellant to stand up and asked him what he had put under the console.
Appellant responded “nothing.” The officer testified that he knew it was a
plastic bag because he could hear the “crinkle” of plastic, and he saw a
tiny corner of the bag. At that point, the officer moved appellant away from
the door of the vehicle, ordered him to put his hands up, and then placed
him in handcuffs. The officer said that as he was speaking to appellant
he faintly smelled marijuana. He searched the passenger compartment of
the vehicle and found crack cocaine hidden underneath where he had seen
appellant pulling out the center console. He field tested the substance,
and it tested positive for cocaine. He did not find any marijuana or residue.
When asked about why he pulled his gun, he said that he could not see
what appellant was doing in the vehicle or if he was reaching for a weapon.
The court asked him if he were in fear, and the officer responded that he
was because of how fast appellant went back to the vehicle.

   Two videos from bodycams of other officers present were shown to the
court. Each video began after the initial stop of appellant, but in the
videos, the testifying officer is seen searching the vehicle. He searched the
entire vehicle prior to searching around the console, where he found one
rock of crack cocaine.

   The court denied the motion to suppress, concluding that although the
tip alone did not justify a stop, appellant’s actions as the officer
approached did:

      So the tip in this particular case is clearly insufficient to allow
      an investigatory stop.        But, however, that’s not what
      happened in this case. The actions of the—I’m sorry, the
      deputy, were not based upon the tip, the anonymous tip, but
      instead based upon the actions of Mr. Dieujuste. The

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      testimony was that the deputy exited his vehicle, or as he was
      exiting his vehicle he had no intention to stop anyone. More
      akin to a consensual encounter, but before he could even
      engage in any kind of consensual encounter, Mr. Dieujuste
      immediately turned and quickly proceeded to the open
      passenger door of a motor vehicle, bent down, and started
      placing something in the console. He heard what sounded
      like a bag. What was in the potential bag, the officer did not
      know.

      As a result, fearing for his safety, the deputy pulled his
      weapon, and gave the defendant orders to show his hands,
      which he had every legitimate right to do. He had no idea
      what the defendant was doing. The defendant’s conduct is
      what resulted in the stop, not the anonymous tip. While at
      the car, dealing with the defendant, whose actions caused the
      deputy to in fact fear that something—fear for his life. He
      doesn’t know [if] there’s a gun that’s being stashed in there.
      Where others could possibly have access to it. That’s when
      he smelled the burnt cannabis which at that time clearly was
      sufficient for probable cause. And exigent circumstances as
      well[.]

Appellant then pled guilty, reserving his right to appeal the denial of the
motion to suppress. The court adjudicated him guilty of possession of
cocaine and revoked his probation on two earlier charges, based upon his
possession of cocaine. He was sentenced, and this appeal follows.

   “[W]hen reviewing a ruling on a motion to suppress, an appellate court
presumes the trial court’s findings of fact are correct and reverses only
those findings not supported by competent substantial evidence.” Pierre
v. State, 

, 765 (Fla. 4th DCA 2009). The appellate court
reviews de novo the court’s application of the law to the facts. 

that he was detained and searched without
reasonable suspicion of criminal activity. We agree. Popple v. State, 

, 186 (Fla. 1993), sets out the three levels of police-citizen
encounters: 1) a consensual encounter where a citizen is free to leave; 2)
an investigatory stop or detention which requires a well-founded suspicion
of criminal activity; and 3) an arrest supported by probable cause that a
crime has been committed.

   The trial court determined correctly that the anonymous tip of drug
activity was insufficient to justify the stop of appellant. The tip described

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an individual selling drugs from a black Camaro, but appellant did not
match the description of the individual selling drugs. More importantly,
the anonymous tip’s assertion of illegal conduct must be corroborated in
some way to establish its reliability. See Florida v. J.L., 

, 271
(2000) (“The reasonableness of official suspicion must be measured by
what the officers knew before they conducted their search. All the police
had to go on in this case was the bare report of an unknown,
unaccountable informant who neither explained how he knew about the
gun nor supplied any basis for believing he had inside information about
J.L.”). Here, the officers never observed any details that would corroborate
the anonymous tip.

    The trial court, however, found that appellant’s conduct of returning to
the vehicle, bending down, and doing something in the vehicle made the
officer fear for his safety and justified the stop and search of the vehicle.
In this finding, the court erred as a matter of law. In order to justify a
stop, there must be a well-founded suspicion of criminal activity. 

; R.J.C. v. State, 

, 1256 (Fla. 4th DCA
2012). There were no circumstances in this encounter from which the
officer could conclude that criminal activity had occurred, was occurring,
or was about to occur. Appellant’s retreat to the vehicle did not evidence
criminal activity. Indeed, if appellant could not retreat, then he was not
free to leave, which circumstance constitutes a seizure for Fourth
Amendment purposes. 

. Even where an
individual is lawfully stopped in a roadside encounter, law enforcement
may not engage in a search unless the police have a reasonable belief that
the suspect is armed and dangerous. In Michigan v. Long, 

,
1049 (1983), the Court explained:

      Our past cases indicate then that protection of police and
      others can justify protective searches when police have a
      reasonable belief that the suspect poses a danger, that
      roadside encounters between police and suspects are
      especially hazardous, and that danger may arise from the
      possible presence of weapons in the area surrounding a
      suspect. These principles compel our conclusion that the
      search of the passenger compartment of an automobile,
      limited to those areas in which a weapon may be placed or
      hidden, is permissible if the police officer possesses a
      reasonable belief based on “specific and articulable facts
      which, taken together with the rational inferences from those
      facts, reasonably warrant” the officers in believing that the
      suspect is dangerous and the suspect may gain immediate
      control of weapons.

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Here, there were no facts, even taken together with the anonymous tip
information, from which it could be inferred that the suspect was
dangerous and may gain control of a weapon. The tip did not mention
weapons at all, and the officer did not observe anything but appellant
bending down into the vehicle. What he heard was the crinkle of plastic,
which in no way suggests the sound of a gun.

   Because there was no reasonable suspicion to stop appellant, the
ensuing search of the vehicle also violated the Fourth Amendment. While
the officer stated that after ordering appellant to stop, he smelled
marijuana, the State conceded at oral argument that the court found that
the officer’s smell of marijuana occurred after the stop.

   In conclusion, the court erred in denying the motion to suppress the
contraband found after the stop, which violated the Fourth Amendment.
We reverse the convictions and sentences.

GROSS and FORST, JJ., concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.




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