CHARLES ETIENNE

v.

THE STATE OF FLORIDA

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NOT FINAL

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MOTION FOR REHEARING EXPIRES

OR, IF FILED, DISPOSED OF. W

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CHARLES ETIENNE, Apliesllant,

V.

'_ - STATE OF FLORIDA, Appe-lice. —-w._ Opinion filed: March Ll, 2014. 2‘ V A ' ' Dad County Flofida, On appeal from th M, ‘ WS IN THE CIRCUIT comm" OF THE 11”‘

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MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

CASE NO. 13-165 AC % LOWER CASE NO.: 4;- ‘=ub§’::.'$ H13. ’ g M12054399 A , 1*‘ l.,., 5347 W:. 2: §?‘g.§§§§?§I§§§§ iéasalM' as"? .i»W\ ' mu; -‘. I¢‘ ‘ J’ _ ou_@. IE5? v I.- \.~;. ‘ e County Comt for Mlaml e , SPENCER MULTACK, Judge. ' ' ' for Apjaellant. scant Public Defender, Attorney Jonathan Greexmbarg, Assi Emily Ann B1111 Before, FIGAR 10, Assistant State Attorney, Attorney for Appellee. om; »HANf/_-MAN and SANTOVBNJTA, JJ.

HANZMAN, J.

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INTQODUCTION

Charles Etienne (“Appellant” 01- “Btien1ie”) was convicted of willfully violating e domestic violence injunction secured by his mother, Naomi Etienne. He claims the trial court erred in denying a motion to suppress a statement made to police officers who had been dispatched in response to a 911 call - insisting that because this initial encounter was “non-consensual” the statement “should have been suppressed as a the fi‘uit of his unlawful seizure.” App. Brief p. 14. See, Wong Sun v. United States,_37l U.S. 4'71 (1963); This error, he says, requires reversal because the State cannot proveheyond a reasonable doubt that this evidence “did not contribute to the verdict ot‘, alternatively stated, that there is no reasonable possibility that the error contributed to the conyiction.” Cucmo v. State, 967 So. 2d 155, 167 (Fla. 2007) (citing State v. DiGm'lto, 491 So. 2d 1129, 1135 (Fl-e..1986)). We agree. I . o Fncts On Decernber 6, 2013, two police officers (Robinson and Thomas) were dispatched to Ms. Etienne’s address in response to a disturbance. At the time of their arrival Appellant was standing across the street. The officers decided to confront him because unidentified individuals ‘were pointing in his direction. Based upon the officer’s testimony the trial court found that at the time of the initial encounter there was no basis for a so-called’ Terry stop, perrnissible only 03-26-’ 14 09:14 FRflil- T-048 P0002/0008 F-126 [*3] - s P0003 recs F-126 - s-’14 as 14 rr0s- .. I 94 ~/ ti»,I fl"—\ i when a law enforcement officer “encounters any person under circumstances which reasonably indicate that such person has committed, is cornniitting, or is about to commit a violation ofthe criminal laws ofthis state ...” §90l.I51(2), Fla. Stat, (1997); Telvjy v. Ohio, 392 U.S. I, 22 (1968); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (an officer may effect a temporary investigative detention based upon a “well-founded and articulable suspicion of criminal activity”). The State has not challenged this finding.‘ r Despite lacking any basis for an investigative detention the officers, with their vehicle in emergency mode (i.e., sirens on and lights flashing), pulled up ( ' alongside ofM1‘. Etienne = exited -— and “told him to come here.” They then asked him “why are you checking’ someone e1se’s mailbox?” Appellant responded by saying “Pm not going to lie; I saw you coming and _I wanted you to believe I stay here.” The trial court denied Appellant’s motion to suppress this statement, concluding that at this point Mr. Etienne “hadn’t been stopped or seized. It was a consensual conversation that was had.” As a result both officers relayed this admission to the jury and tostified that Mr. Etienne acloiowleclged trying to deceive - ._- .> _—_ ———— — —';_eT 1 Nor has it argued that because there was juslificatlon for an investigative detention the trial court’s order denying, the motion to suppress should be affirmed because it was correct — albeit for the wrong reason. See Robertson v. stare, 829 So.2c1 90l, 906 (Fla. 2002) (noting that the "tipsy coachman” doctrine allows an appellate court to affirm a trial court that "reaches the right result, but for the wrong reasons,” so long as “there is any basis which would support the judgment in the record”). While an investigative stop may have been justified, see KC. v. State, SI So. 3d 934 (Fla. 3d DCA 2010), We decline to review the record de nova (and without the benefit ofbriefing) in order to assess whether a "tipsy coaclnnan” affimrance is wanranted. Rather we assume -as both parties do — that the trial courfs ruling on this point was correct and that a Terry stop was not permissible under the “totality of the circumstances” presented. K.C. at p. 93$. 0- 1! 1, ll il it

J.

i ->':rg- -—»- El fl ‘l at ..-.__.<.- N-.s.i.__.\r.'.';-c:__.,....v_-.=r.,._.,_. [*4] - 6314 09:15 FR0l,\— ' I T-948 P9304/B098 F-123 ‘ 6. it t them. The State then argued that this “admission” demonstrated consciousness of guilt. ' - II. Gove1'ningwI4_§gal Principleg “The Fourth An1end1nent's requirement that searches and seizures be founded upon an objective justifioation, governs all seizures of the person, including seizures that involve only a brief detention Shofll of traditional arrest.” UrzitedSz‘ates v. Mendenhall, 446 U.S. 544, 551 (1980), citi11g_Davis v. Mississippi, 394 U.S. 721 (1969). A person is‘ seized for Fourth Amendment purposes “only when, by means ofphysical force‘ or a show of authority, his freedom ofmovement is 1"est1'icted,” which occurs Whenever “in view of all the oircutnstances surrotmding the incident, a reasonable person would have believed that he was not fi'ee to leave.” United States v. Mendenhall, 446 U.S. 554 (1980). Precedent applying this standard instructs that “per se rules are inappropriate in the context of Fourth Amendment seizure analyses.” GM’. v. State, 19 So. 3d 9'73, 979 (Fla. Z009). Rather, “the totality of all the circumstances surrounding the specific encounter must be considered.” Id. at 978. When those circumstances reveal that a reasonable person would not believe “that he or she was free to end the encounter with police and simply leave,” a seizure has occurred, thereby invoking constitutional safeguards. Id. at 980. The question then is would a “reasonable person” in Mr. Etienne’s position have felt free to end [*5] -26114 09:15 rsma- , __ P048 P00051000?» F-120 the encotmter with Officers Robinson and Thomas and “simply leave?” The answer, in our view, is no. -

II. Analysis

\ The encounter between Appellant and the police commenced when the officers approached him in their patrol car with the sirens on and emergency lights flashing. The vehicle pulled upalongside Appellant (a pedestrian) and both officers exited the car. “Appellant was then “told” to “come here.” The episode lacked any indicia of a consensual encounter, defined as one where the officer does not “hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries ...” Popple, 626 So. 2d at 187. To the cont1'a1y,‘Office1's Robinson and Thomas unmistakably exhibited a “show of authority amounting to a restraint on liberty,” see Merjzderihall, and “it strains the bounds of reason” to ooncludethat a person in Mr. Etienne’s position would reasonably believe that he could simply “end the encounter” and Walk away. GMT, supra at 980. Stated differently, a “reasonable” person in Appel1ant’s position undoubtedly “would have believed that he was not free to leave,” at least without risk ofharm or arrest. , Both common sense and precedent confirm that Appellant was “seized” for Fourth Amendment purposes, and his statement should have been suppressed. See Popple, 626 So. 2d at 188- (finding that a deputy’s “direction” for defendant to “exit his vehicle constituted a show of authority which restrained [defendanfs] [*6] — J14 (19:15 ?RUii- _ ,... KP \,' Q \‘ ‘i P848 90006/U008 F-126 ..- o \ '\ I v fireedom of movement”); F.E.H., Jr. v. State, 28 So. 3d 213, 214 (Fla. 4th DCA 2010) (reversing finding of consensual encounter where detective “caileii [defendant] back” to him); IN. v. State, 778 So.(2d 440, 442 (Fla. 3<1DCA 2001) (a seizure occurred where defendant was told to stop and provide his name); D. G. v. State, 714 So. 2d 644, 646 (Fla. 4th DCA 1998) (holding that defendant was seized when offieer ordered him “to come over”); Gram‘ v. State, 596 So. 2d 98, I00 (Fla. 2d DCA 1992) (fi11(iillg‘6I1CO1l11$€=I‘I1011COI1S6IlSl1fll where offieer ordered defendant to come over end talk to him). Considering the surrounding oiroumstances, the officers’ coercive con_m1and that Mr. Etienne “come here" was simply not the type of “docile request” that Mr. Etienne had the option to refuse. Jr., 28 So. 3d at 216. Compare, Voorhees v. Stare, 699 So. 2d 602, 608 (Flo. 1997)'(no seizure Where deputies asked defendant whet he was doing in the area); P.W v. State, 965 So. 2d 1197, 1198 (Fla. _4t-h DCA 2007) (consensual encounter ‘where officer asked juvenile to speak to him); Chapman v. Staie, 780 S0. 2d 1036, I037 (Fla. 4th DCA 2001) (one offioer esking defendant to “[o]on1e here for a minute, can I talk to you,” was noi a seizure); State v. Crumpton, 676 So. 2d 987, 988-89 (Fla. 2d DCA 1996) (asking defendant if he “min(led” coming over and teliing the offioer what he hed placed in his pocket was not a seizure). Having found that Appellanfs statement should have been suppressed, the question then becomes whether the -State has shown, beyond e reasonable doubt, i --‘-I-1.-4| -L :=.-...4,-.-:=-:,..;,;.._. I [*7] it : that the error did not contribute to the conviction — in other words, that the error was harmless. See State v. DiGm'Ii0, 491 So. 2d 1129 (Fla. 1986); Chambers v. Maroney, 399 U.S. 42 (1970). Ifthe State" cannot establish, beyond a reasonable doubt, “that the error did not affect the verdict, then the error is by definition harmful,” even if there is other overwhelming evidence of guilt. Ventura v. State, 29 So. 3d 1086, 1089-1092 (Fla. 2010). Thus, “the test is not whether the jury reached what [the appellate court] believes to be the correct result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant's conviction.” Rigterink v. State, 2 So. 3d 221, 255-257 (Fla. 2009). So our only task is to determine “whether there is a reasonable possibility” that the trial court’s error “affected the verdict.” Rigterink, supra at 255-257. If such a possibility exists, “it is our duty to remand for a new trial,” Venture, supra at 1099, oven ifWe are convinced that thejury could have reached the same verdict absent error, and even though the evidence of guilt may in fact be “compelling.” Miles v. State, 60 So. 3d 447 (Fla. 1st DCA 2011). On this record we cannot possibly conclude — let alone beyond a reasonable doubt M that the improperly admitted statenient could not have contributed to the conviction. The evidence of Appellants willful violation ofthe domestic violence injunction was conflicting and largely circumstantial. Ms. Etienne in fact testified that Appellant had not been at her home that day. And while there certainly was I I '1 .,__q,, --v-»-¥-=c; '4 :1 \ [*8] H348 P0908/0903 F-126 U "26", ..... ,. .. .._._..-.;~.-.i_-.~w-\-+-cw.-Maw-.:-;-'4::aR€=??.>P=-'=% ' '—-‘ , o evidence to the contrary, we find that Appellant’s statement - which evinced a. consciousness of guilt — in all likelihood contributed to the verdict. The State repeatedly highlighted this stateinent in support. of its claim that Appellant knew he was in violation of the injunction, and we will not presume that this “evidence” was ignored by the jury, or find that it could not have impacted its decision? Appellant’s conviction is vacated and the matter is remanded for e new trial “which shall be free from the offending error.” Rigterink, 2 So. 3d at 255-257. . FIGAROLA, J. Concurs. SANTOVENIA, J, concurs in result. \ gamgilbliiiigiiiiii To eewieee t fiffieeo AND-TG' = ~ ‘ ideeeeiitteetett 2 The State’s claim that this error is "harmless" because it could have - and would have — argued the exact same inference (i.e., that Appellant was attempting to mislead the officers) even without Mr. Etiennefls admission is wide ofthe. mark. Having to rely on an "inference" In order to establish consciousness ofguilt is for different than having the benefit of e direct adl11i$siD1'l from the defendant, which is precisely why the State opposed‘ the motion to $Uppl‘esS. The State obviously believed that intfoduction of Mr. Etienue’s "admission" would assist in securing a conviction; a belief we find was wholly jnatified. That is plfifilflflly why we cannot conclude that this “evidence” could not have contributed to the verdict. - a .~-.-'.»‘<a.;. Q.\|'--2-\'--.'~'-:-'5,;--‘.-_._ _____.1, l“:‘.i,| ..w..:..=H. 5.*_:.‘.H.i:I__ . l