State v. K.W. 832 So. 2d 803

PER CURIAM.

The State appeals an order granting juvenile KW.’s motion to suppress. At issue was a pill bottle taken from a pair of orange shorts which the youth had taken off in the front yard of his home. We affirm the trial court’s ruling.

Officer John Rojas received a radio dispatch to be on the look out for a youth wearing all orange clothing and waiving a gun. Rojas went to the vicinity of the incident and eventually, spotted a youth wearing orange shorts, but not displaying a gun. Rojas followed the youth as far as he could before the youth suspected he was being pursued. At that point, the youth ran several blocks and the officer followed. There, in the front yard of the home in which the juvenile apparently lived, the youth dropped his orange shorts. At that point, a women presumed to be the youth’s mother exited the house, picked up the shorts and took them to a washing machine located outside the home. Officer Rojas went into the washing machine, and retrieved a pill bottle from the shorts. The officer admitted that he had not observed any bulge in the youth’s waistband, nor had he observed the youth abandon anything during the pursuit. On these facts, we agree with the appellee that the officer did not have probable cause to detain the youth or confiscate the pill box. See U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)(A warrantless *804search or seizure without probable cause is unlawful, and the fruits of such a search are inadmissible and must be suppressed.)

Affirmed.

SORONDO, J.

(dissenting).

The trial court determined the facts to be the following:

On February 15, 2001, Miami Dade Police Officer John Rojas received a dispatch that a black male wearing all orange clothes was waiving a gun in the air at the intersection of Northwest 62nd Street and 31st Avenue. Officer Rojas drove to the intersection, but did not see anyone at the intersection matching the description. Officer Rojas looked south on Northwest 31st Avenue, and saw respondent, who was wearing all orange clothing, walking down the street. Officer Rojas followed the respondent in his vehicle. When the respondent turned to walk east into an alley, Officer Rojas exited his vehicle and began to follow the respondent on foot. While following the Respondent, Officer Rojas did not observe any gun or bulge on the Respondent. The Respondent’s hands were empty.

While walking in the alley, the Respondent turned around, made eye contact with Officer Rojas, then began running down the alley. The Respondent then jumped a fence of a residence, ran into the front yard, and took his shorts off, discarding them in the front yard. At no point during this encounter did Officer Rojas order the Respondent to stop. At the front of the yard, which turned out to be the residence of the Respondent, another police officer arrived and detained the Respondent. Simultaneously, the Respondent’s mother picked up the Respondent’s shorts and put them inside a washing machine located on the side of the house. Officer Rojas retrieved the shorts from the washing machine, felt a bulge or hard object in the pocket, and pulled out a pill bottle. Officer Rojas stated that he did not think that the hard object he felt was a gun. The Respondent was arrested after the discovery of the drugs inside the pill bottle. No gun was found.

On these facts, the trial judge suppressed the narcotics confiscated from respondent’s shorts. In her analysis, the judge focused on the fact that “Officer Rojas relied upon an unsubstantiated anonymous tip to detain and search respondent,” and that the officer “did not independently observe the Respondent engage in any suspicious or illegal conduct.” Citing J.L. v. State, 727 So.2d 204 (Fla.1999). The court went on to conclude that “[mjerely walking down the street, and then running upon seeing a police officer, without any direction to stop, is not enough to justify a Terry stop.” Finding that there was no reasonable suspicion for the stop, the trial court suppressed the fruits of the defendant’s “seizure.”

I disagree with the lower court’s conclusion because I do not believe that this case is properly analyzed under the anonymous tipster line of cases. Instead, I believe this case involves an abandonment which is comparable to that in the case of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Like the respondent in the present case, Hodari fled at the approach of an unmarked police vehicle. As he ran, Hodari was looking behind himself and was unable to see that a police officer was approaching him from another direction. When he realized his predicament, he threw away a small rock of crack cocaine, moments before he was tackled and handcuffed by the officer. The United State Supreme Court framed the question before them as “whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield.” Id. at 626, 111 S.Ct. 1547. *805The Court held that it did not. The Court went on to reason that because the contraband was abandoned during the chase, it was not a fruit of the seizure. Id. at 629, 111 S.Ct. 1547. Likewise, in the present case, before respondent was detained by police, he voluntarily removed and discarded his shorts.1 Accordingly, the contraband discovered therein was not a fruit of the seizure of respondent, and the Fourth Amendment of the United States Constitution was not violated.

Because I believe the motion to suppress should have been denied, I respectfully dissent.

ON REHEARING DENIED

PER CURIAM.

The State’s Motion for Rehearing of this court’s opinion filed September 30, 2002, is denied.

NESBITT, Senior Judge,

specially concurring.

I concur with the majority decision, but write separately to explain why I believe the trial court properly granted the juvenile’s motion to suppress. While I do not question consideration of California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690(1991), I conclude affirmance is nonetheless mandated, where the boy shed his shorts on his own property and the shorts were immediately placed in the family washing machine. Under the facts at hand, I find that O’Shaughnessy v. State, 420 So.2d 377(Fla. 3d DCA 1982), as cited by the juvenile, supports the conclusion that the shorts should not be viewed as abandoned property subject to police inspection.

[T]he test to be applied in determining whether a person has abandoned property is an objective one' — the words used, the conduct exhibited, and other objective facts such as where and for what length of time the property is relinquished and the condition of the property. United States v. Kendall, [655 F.2d 199 (9th Cir.1981) ] supra, United States v. Williams, 569 F.2d 823 (5th Cir.1978); Morton v. State, [284 Md. 526, 397 A.2d 1385 (1979) ].

The burden is on the state to establish abandonment and it has been said that the proof thereof must be by ‘clear, unequivocal and decisive evidence.’

O’Shaughnessy v. State, 420 So.2d at 379.

When addressing an abandonment issue, the question is whether, under the totality of the circumstances, a defendant has a reasonable expectation of privacy in the invaded property. See Kelly v. State, 536 So.2d 1113 (Fla. 1st DCA 1988). “Whether property has been ‘abandoned’ for search and seizure purposes is viewed primarily as a question of intent, to be inferred from the words and actions of the parties and other circumstances surrounding the purported abandonment.” Kelly, *806536 So.2d at 1114. See State v. Kennon, 652 So.2d 396, 397-98 (Fla. 2d DCA 1995)(citing 1 Wayne R. LaFave, Search and Seizure § 2.6(b) (2d ed.1987) wherein the author observes: “In the law of search and seizure, ... the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment.... In essence, what is abandoned is not necessarily the defendant’s property, but his reasonable expectation of privacy therein.”) See also 14 Fla. Jur.2d, Abandoned Property § 633.

Admittedly, not every seizure of property occurring under the curtilage of one’s home negates the finding of a valid abandonment of the property at issue. See State v. Duhart, 810 So.2d 972, 973-74 (Fla. 4th DCA 2002)(coneluding that the Fourth Amendment is not necessarily a protection in areas of the home which are open and exposed to public view); Koehler v. State, 444 So.2d 1032 (Fla. 1st DCA 1984)(no expectation of privacy on unenclosed front porch which was exposed to public view); State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976)(no reasonable expectation of privacy on front porch of home where delivery men and others were free to observe plants thereon). Nonetheless, considering the instant facts, I conclude that the order under review must be affirmed based on the juvenile’s “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576(1967). The State failed to establish abandonment by clear, unequivocal, and decisive evidence. See Kelly, 536 So.2d at 1113; O’Shaughnessy, 420 So.2d at 377. The evidence at issue was properly suppressed.