DARRY D. TOWNSEND

v.

STATE OF FLORIDA

Appeal from the Circuit Court for Polk County; Wayne M. Durden and Andrea Teves Smith, Judges. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. After the trial court determined that he was competent to proceed in case no. 2017-CF-4971, Darry Townsend pleaded nolo contendere to possessing a firearm as a convicted felon, reserving his right to appeal the trial court's denial of his dispositive motion to suppress the firearm found during a pat-down search. On this appeal from

- 2 - the judgment, he challenges the trial court's asserted failure to make an independent determination of his competency, its failure to enter a written order of competency, and its denial of his suppression motion. We find no merit to Townsend's argument that the trial court erred with respect to the competency determination, but for the integrity of the record, we remand for entry of a nunc pro tunc written order. See Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014) ("[T]he trial court . . . must enter a written order if the defendant is found competent to proceed."). Because we agree with Townsend that suppression was warranted, however, we reverse his conviction and remand for entry of a judgment of dismissal. Around 11:30 p.m. on June 1, 2017, a single suspect committed a robbery in a Walmart parking lot in Mulberry, Florida. The suspect drove away in a maroon Buick with the victim's credit cards, cell phone with wallet case, and groceries. Around 11:00 a.m. the next day, Polk County Sheriff's Detectives Dustin Pantalone and Joshua Williams were investigating an unrelated report of a stolen vehicle when they observed the maroon Buick parked outside a house in Lakeland. While they waited in their car for backup, Frank Murray exited the house and walked over to them. Murray confirmed that the driver of the Buick—later identified as Carlos Wiggins—was the robbery suspect and was currently inside the house. After speaking with the detectives, Murray walked off. As they continued waiting, the detectives saw a white car arrive at the house. Townsend got out of the car, checked the mailbox, and then went inside the house. After that, the detectives saw Murray begin to make his way back to the house. Afraid that Murray might alert Wiggins to their presence, Detective Williams stopped

- 3 - Murray in the doorway of the house while Detective Pantalone went around the back of the house. Still without backup and now separated from his partner, Detective Williams did not go inside but instead called for the occupants to come out of the house. Around back, Detective Pantalone saw one of the occupants—not Wiggins or Townsend—attempting to crawl out of a window. Pantalone shouted at the occupant, who retreated inside. By this time, backup had arrived. Wiggins was the last person to exit the house, and detectives handcuffed him. Detective Williams then began patting down the other occupants, who were now standing around outside. During the pat-down, Detective Williams felt a firearm in Townsend's "larger, baggier pants." Upon discovering the firearm, Detective Williams asked Townsend if he was a felon, and Townsend confirmed that he was. After the trial court determined that he was competent to proceed, Townsend moved to suppress the firearm. The court denied the motion.1 The court concluded that officer safety had justified the pat-down because it had occurred "soon after an individual was seen attempting to flee the Residence and after Carlos Wiggins was arrested." In reviewing the trial court's denial of Townsend's suppression motion, we must "accord a presumption of correctness to the trial court's determination of the historical facts, but must independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment." Dawson v. State, 58 So. 3d 419, 421 (Fla. 2d DCA 2011) (quoting Moody 1To the extent that Townsend sought suppression of other evidence and statements, the court granted the motion in part and denied it in part, but none of that bears on the issue on appeal.

- 4 - v. State, 842 So. 2d 754, 758 (Fla. 2003)). We therefore look to determine if competent, substantial evidence supports the factual findings, and we review de novo the trial court's application of the law to the facts. Id. (citing State v. Clark, 986 So. 2d 625, 628 (Fla. 2d DCA 2008)). "A pat-down for weapons is permissible only when the officer has a reasonable suspicion that the defendant is armed and dangerous." Owens v. State, 854 So. 2d 737, 740 (Fla. 2d DCA 2003) (citing Everette v. State, 736 So. 2d 726, 728 (Fla. 2d DCA 1999)).² See, e.g., State v. Rand, 209 So. 3d 660, 678-79 (Fla. 1st DCA 2017) ("A suspect's hand movements in the vicinity of pockets and the waist area are significant indicators of the possible presence of a concealed weapon, and such gestures are sufficient to support an officer's pat-down search to ensure officer safety." (citing State v. Cruse, 121 So. 3d 91, 99-100 (Fla. 3d DCA 2013))). The detectives did not observe the ubiquitous "bulge." 2This is true regardless of whether the initial detention is legal, see § 901.151(5), Fla. Stat. (2016); therefore, we need not address Townsend's argument that Detective Williams unlawfully seized him by calling for the occupants to come out of the house.

- 5 - Absent any factor giving rise to reasonable suspicion that Townsend was armed, the only question is whether general concerns of officer safety justified the pat-down. But this is a question that we have previously, and repeatedly, answered in the negative. See, e.g., Forman v. State, 128 So. 3d 817, 819, 820 (Fla. 2d DCA 2013) (concluding, where defendant was merely the passenger in a car that had been involved in an accident, that "[the officer's] conclusory testimony that he had a generalized concern for officer safety was insufficient to support either [the defendant's] involuntary removal from the car or the ensuing pat-down search"); McNeil v. State, 995 So. 2d 525, 526 (Fla. 2d DCA 2008) ("Routine patdown searches based on general concerns for officer safety are not constitutionally permitted." (citing D.L.J. v. State, 932 So. 2d 1133, 1135 (Fla. 2d DCA 2006))); Hunt v. State, 700 So. 2d 94, 95 (Fla. 2d DCA 1997) ("Pat-down searches performed routinely or for safety purposes only are constitutionally impermissible." (citing Harris v. State, 574 So. 2d 243 (Fla. 1st DCA 1991))). As we stated in Dawson, 58 So. 3d at 422, "we do not treat lightly the concerns for officer safety," but we must balance those concerns against concern for the rights guaranteed under the Fourth Amendment. Although it is particularly troubling where, as here, the pat-down results in the discovery of a felon with a firearm, "we are not permitted to be distracted by the fruit of the search. Instead, our focus must be on the justification for the search." Id. at 421. Townsend was patted down simply because he was, at that moment, in the same house as someone who had committed a robbery in a different town some twelve hours earlier. In these circumstances, the balance warranted suppression.

- 6 - We therefore reverse the conviction and remand for entry of a judgment of dismissal. To preserve the integrity of the record, on remand, the trial court shall first enter a nunc pro tunc written order of competency. Reversed and remanded with instructions. SILBERMAN and BADALAMENTI, JJ., Concur.