STATE OF FLORIDA

v.

DEVIN SHAWN DENONCOURT

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-0947 LT Case No. 2023-CF-000044-A _____________________________

STATE OF FLORIDA,

Appellant,

v.

DEVIN SHAWN DENONCOURT,

Appellee. _____________________________

On appeal from the Circuit Court for Citrus County. Joel D. Fritton, Judge.

Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellant.

Matthew J. Metz, Public Defender, and Zachary L. Wiseman, Assistant Public Defender, Daytona Beach, for Appellee.

December 27, 2024

HARRIS, J.

The State appeals the trial court’s order granting Appellee’s, Devin Shawn Denoncourt, motion to suppress evidence seized during a traffic stop. It argues the traffic stop was not unreasonably prolonged, the officer conducted a valid pat-down,

Appellee was charged with trafficking in methamphetamine (count one), possession with the intent to sell/manufacture cocaine (count two), possession of fentanyl (count three), and drug possession (morphine) (count four). He filed a motion to suppress evidence that was seized from his person during a traffic stop after a K⁹ alerted to the presence of narcotics in the vehicle he was driving. Appellee argued that the traffic stop was unconstitutionally extended because he was only pulled over for a traffic infraction and there was no reasonable suspicion a crime was being committed. He also argued that there was no constitutional justification for the pat-down of his person. He further argued that any manipulation of the bulge the officer observed in the front of Appellee’s pants fell outside the plain-feel doctrine, and the continued exploration after concluding that Appellee’s pants contained no weapon was unrelated to the sole justification of the search, i.e., the protection of the officer and others.

The court conducted a hearing on the motion and the following evidence was presented. Deputy David Elias is a deputy sheriff, SWAT team member, and K⁹ officer, and was previously a narcotics patrol deputy. He has been a K⁹ officer for five years and has conducted “[t]housands” of pat-down searches. He testified that on January 17, 2023, he conducted a traffic stop on Appellee shortly before⁴:00 a.m., due to possible improper window tint and deficient taillight on a trailer. When he activated his sirens and lights, the vehicle did not stop right away, but continued driving at a slow rate of speed for a few hundred yards before eventually turning off a street in a residential area and coming to a stop. Appellee was the driver and Cody Brunner was the passenger. Elias had come into contact with Brunner “[l]ots” of times before, including for incidents involving drugs, thefts, and eluding. When he approached the vehicle, he asked the occupants for their drivers’ licenses, insurance, and registration, which was Elias’s standard procedure for traffic stops. Appellee provided his driver’s license and registration, but the registration did not match the tag that was on the vehicle. They also did not have any proof of insurance, but Brunner said “hey, give me a minute, I’ll go ahead and contact

6 his safety); see also Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding once motor vehicle has been lawfully detained for traffic violation, officers may order driver to get out of vehicle without violating Fourth Amendment). As to the pat-down search, under the Florida Stop and Frisk Law, an officer who has validly stopped an individual may search that individual “only if the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person.” Dewberry v. State, 905 So. 2d 963, 966 (Fla. 5th DCA 2005). Probable cause for a stop and frisk requires “an articulable reasonable belief or suspicion that the individual is armed and poses a threat to the officer.” Leach v. State, 957 So. 2d 717 (Fla. 5th DCA 2007). In determining the reasonableness of an officer’s suspicion, trial courts must consider the totality of the circumstances as viewed by an experienced police officer. See id. (citing Dewberry, 905 So. 2d at 966). In Leach, there was a lawful traffic stop, the K⁹ alerted to the presence of an odor of narcotics where the defendant was sitting, the occupants of the vehicle appeared uneasy and moved around in an unusual fashion, the officer’s experience taught him that weapons and drugs were frequently associated, and there were only two police officers to deal with the situation. 957 So. 2d at 721–22. This Court held that based on these factors, there was a reasonable basis for the officer to conduct the pat-down, which led to the discovery of drugs and paraphernalia. Id. at 722. The facts of the instant case are similar to those in Leach. Here, Deputy Elias stopped Appellee’s vehicle in the early morning hours shortly before⁴:00 a.m.; the vehicle did not stop right away despite having multiple opportunities to do so; the vehicle belonged to someone else; the K⁹ alerted to the presence of the odor of narcotics on the vehicle; in Elias’s experience, weapons are found with drugs eight out of ten times; when Appellee exited the vehicle, he faced away from Elias and was moving his hands furtively around his waistband; and when Appellee turned to face Elias, Elias noticed a bulge in Appellee’s pants. Considering the totality of the circumstances, Elias had a reasonable suspicion that Appellee posed a threat to his safety.

7 The trial court took issue with Elias’s testimony that he pats down every driver that exits a vehicle; however, Elias also testified that he was concerned about the presence of a weapon, especially because weapons are often found with drugs, which the K⁹ alerted to, and the way Appellee exited the vehicle was unusual.² Cf. Santiago v. State, 84 So. 3d 455, 458 (Fla. 4th DCA 2012) (holding although there was testimony regarding a bulge in defendant’s pants and defendant’s “scared” demeanor, officer did not provide testimony that he had a suspicion or feared defendant was armed with a dangerous weapon). Additionally, “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996). Accordingly, we conclude that the pat-down was proper. Finally, we look at the search of Appellee’s person. A stop and frisk may not extend beyond a pat-down of a suspect’s outer clothing unless the officer concludes the suspect has a weapon. See Santiago, 84 So. 3d at 459. Before retrieving contraband from a suspect’s person during a pat-down, an officer must have probable cause to believe that the item felt during the pat-down is contraband. See State v. J.D., 796 So. 2d 1217, 1219 (Fla. 4th DCA 2001). Probable cause to search a suspect exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not, a crime has been committed. See Santiago, 84 So. 3d at 459. Probable cause does not develop anytime an officer feels an object he reasonably suspects to be contraband; rather, the officer must be reasonably certain the object is contraband. See Harris v. State, 790 So. 2d 1246, 1249 (Fla. 5th DCA 2001). The burden is on the State to prove that the officer had probable cause to seize items felt during a frisk for weapons. See J.D., 796 So. 2d at 1219. It must present more than the subjective statement of a

8 police officer that he had a feeling based on experience that the seized item was contraband. See id. As an initial matter, the trial court did not believe that Elias detected, with just the palm of his hand, the crystal-like methamphetamine through three layers of clothing and multiple plastic bags. Because this Court defers to the trial court’s factual findings on that matter, the issue is whether, disregarding Elias’s testimony that he immediately identified the feeling of meth through the clothing, he still had probable cause to search Appellee’s person based on the totality of circumstances. In addition to those circumstances we found to authorize the patdown search, we also note that Appellee made furtive movements towards his waistband, which, in Elias’s experience, appeared to be an attempt to conceal something; when Appellee voluntarily lifted his shirt up, Elias observed the corner of a plastic baggie; and in Elias’s experience and training as a narcotics patrol deputy, K⁹ See Santiago, 84 So. 3d at 459 (providing officer does not need to “know” item is contraband, and finding of probable cause does not require absolute certitude, but rather, totality of circumstances allows reasonable officer to believe, more likely than not, a crime has been committed); Doctor v. State, 596 So. 2d 442, 445 (Fla. 1992) (finding totality of circumstances gave officer probable cause to believe defendant was carrying crack cocaine in groin area because defendant exited vehicle in suspicious manner, officers observed large bulge which defendant attempted to hide, and officer had knowledge through experience with unique texture of crack cocaine and this type of concealment). Accordingly, the trial court erred in granting Appellee’s motion to suppress. We reverse and remand for further proceedings.

9 REVERSED and REMANDED.

EDWARDS, C.J., and WALLIS, J., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________