IN THE SUPREME COURT OF FLORIDA CASE NO. a juvenile, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION

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1 N THE SUPREME COURT OF FLORDA CASE NO. L.C., a juvenile, Petitioner, \ "\ \ '- \ -vs- THE STATE OF FLORDA, Respondent. BREF OF PETTONER ON JURSDCTON ON PETTON FOR DSCRETONARY REVEW FROM THE DSTRCT COURT OF APPEAL OF FLORDA, THRD DSTRCT Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida (305) Kathryn J. Strobach Assistant Public Defender Florida Bar No KJS@pdmiami.com Counsel for Petitioner

2 TABLE OF CONTENTS PAGE NTRODUCTON...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF ARGUMENT...3 ARGUMENT...4 E THE DECSON OF THE THRD DSTRCT COURT OF APPEAL CONFLCTS WTH THE DECSONS OF ALL OTHER FLORDA COURTS APPLYNG THE REQURENTS OF TERRY v. OHO, AND FLORDA'S STOP AND FRSK LAW, SECTON (5) OF THE FLORDA STATUTES, AS TO WHETHER OFFCERS MAY PAT DOWN A PERSON EVEN WHERE THE NDVDUAL S NOT UNDER ARREST AND S NOT SUSPECTED OF BENG "ARMED AND DANGEROUS."...4 CONCLUSON...9 CERTFCATE OF SERVCE CERTFCATE OF FONT...10

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4 TABLE OF CTATONS CASES PAGE(S) Augustus v. State, 773 So. 2d 104 (Fla. 5th DCA 2000)... 1, 5, 8 C.G. v. State, 689 So. 2d 1246 (Fla. 4th DCA 1997)...4 D.L.J. v. State, 932 So. 2d 1133 (Fla. 2d DCA 2006)...2, 6, 8 D.O. v. State, 77 So. 3d 787 (Fla. 3d DCA 2011)...5 Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1989)... 1, 7, 8 Dawson v. State, 58 So. 3d 419 (Fla. 2d DCA 2011)... 2, 5, 8 E.P. v. State, 997 So. 2d 1240 (Fla. 3d DCA 2008)... 5 Estevez v. State, 915 So. 2d 185 (Fla. st DCA 2005)... 1, 6, 8 Harris v. State, 574 So. 2d 243 (Fla. 1st DCA 1991)... 1, 6, 8 Jackson v. State, 791 P. 2d 1023 (Alaska Ct. App. 1990)... 5 i People v. Brisendine, 531 P.2d 1099 (Cal. 1975)...5 ll

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6 Terry v. Ohio, 392 U.S. 1 (1968) Florida Statues (2012) Section (5).....6, 8 Section (1)(b)...4 Section (1)(a)1...5 Florida Constitution Provisions Article 1, Section V

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10 N THE SUPREME COURT OF FLORDA CASE NO. L.C., a juvenile, Petitioner, -vs- THE STATE OF FLORDA, Respondent. ON PETTON FOR DSCRETONARY REVEW FROM THE DSTRCT COURT OF APPEAL OF FLORDA, THRD DSTRCT BREF OF PETTONER ON JURSDCTON NTRODUCTON This is a petition for discretionary review on the grounds of express and direct conflict of decisions between the Third District Court of Appeal in L.C. v. State, 38 Fla. L. Weekly D173a (Fla. 3d DCA Jan. 23, 2013), and other Florida district courts that apply Terry v. Ohio, 392 U.S. 1 (1968), and Florida's Stop and Frisk Law, such as Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1989); Harris v. State, 574 So. 2d 243 (Fla. 1st DCA 1991); Augustus v. State, 773 So. 2d 104 (Fla.

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12 5th DCA 2000); Estevez v. State, 915 So. 2d 185 (Fla. 1st DCA 2005); and D.L.J. v. State, 932 So. 2d 1133 (Fla. 2d DCA 2006); and Dawson v. State, 58 So. 3d 419 (Fla. 2d DCA 2011). Attached to this brief is the appendix containing the L.C. opinion, paginated separately and identified below as "A." STATEMENTOFCASEANDFACTS The relevant facts are fully set forth in the Third District Court's opinion, L.C. v. State. (A. 1-4.) A police officer stopped L.C., a child, in order to investigate whether he was truant. (A. 2.) L.C.'s explanation as to why he was out of school during school hours did not dispel the officer's suspicion of truancy, so the officer patted him down for transport to school and found marijuana. (A. 2-3.) There was no justification for this pat-down other than the officer's suspicion that L.C. was truant and therefore needed to be transported to school. (A. 4.) The opinion in L.C. held that suspicion of truancy was sufficient to justify a weapons pat-down. Judge Rothenberg wrote that, [T]he evidence presented at trial demonstrates that Officer Rivers observed L.C., who appeared to be young and carried a book bag, walking down a street near a high school during school hours. Believing that L.C. was truant from school, Officer Rivers stopped L.C. to inquire. When L.C.'s explanation did not make sense, Officer Rivers took L.C. into "custody" and conducted a pat-down before placing him in his patrol car to be transported to school. Therefore, based on the totality of these circumstances, Officer Rivers had the necessary "reasonable grounds to believe" L.C. was "absent from 2

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14 school without authorization" '; the State was not required to present evidence that Officer Rivers "confirmed" that L.C. was truant; and the pat-down prior to placing L.C. in Officer Rivers' police vehicle in order to transport L.C. to school was lawful. (A. 4.) On February 1, 2013, Appellant filed a notice to invoke this Court's discretionary jurisdiction and now files this jurisdictional brief on the ground of express and direct conflict with a number of Florida decisions that apply the Terry "armed and dangerous" requirement to all pat-downs conducted in police-citizen encounters that fall short of an arrest. SUMMARY OF ARGUMENT The opinion of the Third District Court of Appeal in this case dispenses with the Terry "armed and dangerous" requirement any time a suspected truant child is to be transported by a police officer. However, it is well established in Florida that, under Terry and the Stop and Frisk Law, a valid pat-down search in a nonarrest situation must be justified by a reasonable belief that the person is armed and dangerous. n that regard, the Third District is in express and direct conflict with the many cases that apply Terry and Florida's Stop and Frisk Law. The quoted language in the Third District's decision is taken from section (1)(b) of the Florida Statutes, entitled, "Taking into custody a child alleged to be from a family in need of services or to be a child in need of services," which authorizes transport - but not pat-downs - of truant children. 3

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16 ARGUMENT. THE DECSON OF THE THRD DSTRCT COURT OF APPEAL CONFLCTS WTH THE DECSONS OF ALL OTHER FLORDA COURTS APPLYNG THE REQURENTS OF TERRY v. OHO, AND FLORDA'S STOP AND FRSK LAW, SECTON (5) OF THE FLORDA STATUTES, AS TO WHETHER OFFCERS MAY PAT DOWN A PERSON EVEN WHERE THE NDVDUAL S NOT UNDER ARREST AND S NOT SUSPECTED OF BENG "ARMED AND DANGEROUS." The Third District Opinion The Third District's opinion concludes that, because the officer had "reasonable grounds to believe" that L.C. was truant, the officer had the authority to pat the child down prior to placing him in a police car for transport to school, even though the officer did not have reasonable suspicion that the child was armed and dangerous. (A. 1-4.) This opinion stands for a new and far reaching proposition, which is that police have blanket authority to pat down suspect truants prior to transport, regardless of the protections afforded by the Fourth Amendment and section (5), Florida Statues (2010). See C.G. v. State, 689 So. 2d 1246, 1247 (Fla. 4th DCA 1997) (truancy is not a crime); Section (1)(b), Fla. Stat. (2012) (allowing officers to take truants into custody for transport, but not 4

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18 conferring authority to conduct a pat-down). The controlling effect of the Third District's holding in L.C. is therefore that suspected truants of any school-going age2 are a special class of citizens who are not entitled to the full scope of protections afforded by the United States Supreme Court, all other Florida Courts, and the Florida Legislature. 3 Terry and the Stop-and-Frisk Statute t is well settled in Florida that, under Terry, absent an arrest, a pat-down pursuant to a stop must always be preceded by an officer's reasonable suspicion that a person is armed and dangerous. See e.g., Dawson v. State, 58 So. 3d 419, 422 (Fla. 2d DCA 2011) ("For a weapons pat-down search to be valid, an officer 2 n Florida, school-age children are those who are mandated to attend school between the ages of 6 and 16 years (1)(a)l, Fla. Stat. (2012). 3 This is the third time that the Third District has departed from Terry in the context of truancy stops by issuing holdings that indicate a pat-down search is automatically justified where a suspect truant is about to be transported in a police car. See E.P. v. State, 997 So. 2d 1240 (Fla. 3d DCA 2008); and D.O. v. State, 77 So. 3d 787 (Fla. 3d DCA 2011). n the prior opinions of E.P. and D.O., the Third District's majority holdings relied upon a quotation contained within dicta from an Alaska state opinion, Jackson v. State, 791 P. 2d 1023 (Alaska Ct. App. 1990). The Jackson opinion, however, dealt with the lawfulness of a search incident to arrest on an outstanding warrant, and relied upon language from the very different case of People v. Brisendine, 531 P.2d 1099, 1109 (Cal. 1975) (discussing police car transport by way of analogy in a case where an officer searched a knapsack incident to an arrest prior to taking several individuals to his car in an isolated area with rocky terrain.) 5

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20 must identify objective facts indicating that a person detained is armed and dangerous."); Augustus v. State, 773 So. 2d 104, 106 (Fla. 5th DCA 2000) ("a protective pat down search in connection with an investigatory stop is only allowed if the officer has a reasonable belief that the subject is an armed threat"); Daniels v. State, 543 So. 2d 363, 365 (Fla. 1st DCA 1989) ("f an officer validly stops and detains an individual, and has probable cause to believe that the individual seized is armed with a dangerous weapon and poses a threat to the officer or any other person, the officer may search the individual to the extent necessary to disclose the weapon."). The Florida legislature has codified that unequivocal Terry requirement in section (5), Florida Statutes. See also Art. 1, 12, Fla. Const. (requiring Florida's search and seizure law to "be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court"). Florida courts have uniformly applied the Terry requirements to reject routine searches for officer safety purposes in the absence of reasonable suspicion that the suspect is armed and dangerous, even in the context of a valid stop. D.L.J. v. State, 932 So. 2d 1133 (Fla. 2d DCA 2006) (finding that a routine pat-down search for officer safety purposes was constitutionally impermissible); Harris v. 6

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22 State, 574 So. 2d 243 (Fla. 1st DCA 1991) (fmding that a protective safety frisk based on routine practice in the absence of proper factual predicate is unconstitutional). Even when a suspect is placed into a police vehicle during a valid stop, particularized reasonable suspicion has been held to be required to pat the person down. Estevez v. State, 915 So. 2d 185 (Fla. 1st DCA 2005) (finding that a routine pat-down for officer safety was unconstitutional even though the defendant was placed in a police car while the officer issued a trespass warning.) The Third District's decision in L.C. creates an exception to Terry that permits protective frisks as a matter of routine whenever an officer transports a school-aged child who is merely truant and not suspected of criminal activity. All of the above-named authorities demonstrate that the "armed and dangerous" test is i a constitutional requirement, and therefore prohibit this exception. Conflict Under L.C., an officer does not have to articulate objective facts that give rise to a reasonable belief that a suspected truant child is armed and dangerous in order to justify a weapons frisk. nstead, an officer may pat down school-aged boys and girls as a matter of routine with no regard for the Fourth Amendment. L.C.'s Terry exception is in conflict with section (5) of the Florida 7

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24 Statutes, Florida's Stop and Frisk Law, as well as the courts that have found that Terry requires an officer to have an objectively reasonably belief that a person is armed and dangerous in order to conduct a pat-down during an investigatory stop, including Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1989); Harris v. State, 574 So. 2d 243 (Fla. 1st DCA 1991); Augustus v. State, 773 So. 2d 104 (Fla. 5th DCA 2000); Estevez v. State, 915 So. 2d 185 (Fla. 1st DCA 2005); D.L.J. v. State, 932 So. 2d 1133 (Fla. 2d DCA 2006); and Dawson v. State, 58 So. 3d 419 (Fla. 2d DCA 2011). Thus, because the Third District's opinion is in conflict with all other Florida courts that apply the pat-down requirements of Terry and section (5) of the Florida Statutes, this Court should resolve that important discrepancy in the law and exercise its discretionary jurisdiction in this case. 8

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26 CONCLUSON Based on the foregoing facts, authorities and arguments, petitioner respectfully requests this Court to exercise its discretionary jurisdiction to review the decision of the Third District Court of Appeal. Respectfully submitted, Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida BY: KATHRYN J. S OACH Assistant Public Defender

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28 CERTFCATE OF SERVCE HEREBY CERTFY that a true and correct copy of the foregoing was delivered by to the Office of the Attorney General, Criminal Division, CrimAppMia@myfloridalegal.com, this 4th day of February, Úëtb Brilvoà KATHRYN S OBACH Assistant Public Defender CERTFCATE OF FONT Undersigned counsel certifies that the type used in this brief is 14 point proportionately spaced Times Roman. KATHRYN J. STROBACH Assistant Public Defender

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30 N THE SUPREME COURT OF FLORDA CASE NO. L.C., a juvenile, Petitioner, -vs- THE STATE OF FLORDA, Respondent. NDEX TO APPENDX Third District Court of Appeal Opinion issued 1/23/

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32 Eijirb Bífftritt Court of ppeal State of Florida, January Term, A.D Opinion filed January 23, Not final until disposition of timely filed motion for rehearing. No. 3D Lower Tribunal No L.C., a juvenile, Appellant, Vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz- Cohen, Judge. Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, and Jacob Addicott, Certified Legal ntern, for appellee. Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge. ROTHENBERG, J.

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34 L.C. appeals an order withholding adjudication of delinquency and placing him on probation, contending the trial court erred by denying his motion to suppress marijuana found on his person following a pat-down search. We affirm. Officer Rivers testified that he saw L.C. walking down a street not far from a high school during school hours; L.C. appeared to be young; and L.C. was carrying a book bag. Officer Rivers conducted a Terry stop,1 which L.C. acknowledges was lawful, to inquire into the possibility that L.C. was truant. See D.O. v. State, 77 So. 3d 787, 790 (Fla. 3d DCA 2011) ("Law enforcement, in a very real sense, fulfills a role as a 'community caretaker' when they encounter truants, child runaways, children locked out of their home, and children beyond the control of their parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian, or return the child to school or the appropriate agency that can provide the services needed in light of the individual circumstances."). At trial, Officer Rivers explained that when he stops a child whom he believes is truant, he attempts to ascertain whether the child has permission to be out of school, such as participating in a work study program or having written permission from a parent to go to a doctor appointment. n response to Officer Rivers' inquiry, L.C. gave "some story" as to why he did not have to be in school, 1 Terry v. Ohio, 392 U.S. 1 (1968). 2

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36 but the "story" did not "sit right with" Officer Rivers. Therefore, prior to placing 3 L.C. into the police vehicle, Officer Rivers conducted a pat-down search for officer N THE SUPREME COURT OF FLORDA CASE NO. L.C., a juvenile, Petitioner, -vs- THE STATE OF FLORDA, Respondent. BREF OF PETTONER ON JURSDCTON ON PETTON FOR DSCRETONARY REVEW FROM THE DSTRCT COURT OF APPEAL OF FLORDA, THRD DSTRCT Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street L Miami, Florida (305) Kathryn J. Strobach Assistant Public Defender

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38 parent or legal guardian, to a location determined by the parent or guardian, or to a designated truancy interdiction site until the parent or guardian can be located. n the instant case, the evidence presented at trial demonstrates that Officer Rivers observed L.C., who appeared to be young and carried a book bag, walking 4 down a street near a high school during school hours. Believing that L.C. was truant from school, Officer Rivers stopped L.C. to inquire. When L.C.'s explanation did not make sense, Officer Rivers took L.C. into "custody" and conducted a pat-down before placing him in his patrol car to be transported to school. Therefore, based on the totality of these circumstances, Officer Rivers had the necessary "reasonable grounds to believe" L.C. was "absent from school without authorization"; the State was not required to present evidence that Officer Rivers "confirmed" that L.C. was truant; and the pat-down prior to placing L.C. in Officer Rivers' police vehicle in order to transport L.C. to school was lawful. Accordingly, we affirm the order withholding adjudication of delinquency and placing L.C. on probation, concluding the trial court correctly denied L.C.'s motion to suppress. Affirmed.

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