D.O. V. STATE

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Third District Court » 2011 » D.O. V. STATE

D.O. V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 10-3001

Case Date: 12/21/2011

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed December 21. 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-3001 Lower Tribunal No. 10-1480 ________________

D.O., a juvenile,
Appellant, vs.

The State of Florida,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge. Carlos J. Martinez, Public Defender, and Brian L.Ellison, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.

Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge. WELLS, Chief Judge.

Affirmed. See E.P. v. State, 997 So. 2d 1240 (Fla. 3d DCA 2008) (citing Jackson v. State, 791 P.2d 1023 (Alaska Ct.App.1990)("in the case of transportation in a police vehicle, however, or in the analogous circumstances here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person"), In re Kelsey, 243 Wis.2d 422, 626 N.W.2d 777 (2001), and State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993)).

2

D.O., a juvenile v. State of Florida 3D10-3001

EMAS, J. specially concurring. I concur in affirming the trial court's order denying the motion to suppress, but write to explain my reasons for doing so. The relevant facts are not in dispute: A patrol officer in a marked police car observed D.O. walking with a group of five other juveniles. It was a school day, during school hours, and the juveniles were not walking in the vicinity of a school, carrying any books or book bags, or wearing any clothing that would readily identify them as students. The officer approached the group and began to question them about their age and why they were not in school. After determining that D.O. was sixteen years old and should have been in school, the officer prepared to take D.O. back to school (or to his home, if he was suspended from school). Before placing D.O. in the back of the patrol car, the officer conducted a pat-down search of D.O.'s outer clothing. The officer did not have D.O.'s consent to do so, and the officer

acknowledged that he had no reasonable suspicion to believe that D.O. was armed. The officer testified that he conducted a pat-down search because it is department policy to pat down any person before placing them in a patrol car, for officer safety. Upon conducting the pat down, the officer felt a "bulge," which D.O. told

3

the officer was a firearm. The officer retrieved the firearm and D.O. was charged with carrying a concealed firearm. D.O. filed a motion to suppress, arguing that the existence of a departmental policy does not provide the necessary basis to justify a pat-down search of a juvenile who is being transported based on truancy, which is not a criminal offense. D.O. argues that, because the officer had no reasonable suspicion that D.O. was armed, the pat-down search violated D.O.'s Fourth Amendment rights, and the firearm must be suppressed. The trial court denied the motion to suppress, and D.O. entered a plea reserving the right to appeal the denial of this dispositive motion. Thus, the issue presented is this: upon lawfully taking a juvenile truant into custody pursuant to its duty under section 984.13, Florida Statutes, may a police officer conduct a limited pat-down search for weapons, even in the absence of reasonable suspicion to believe the juvenile is armed, before placing the juvenile in a police vehicle for the purpose of delivering the juvenile without unreasonable delay to the appropriate school system site? In order to properly analyze this particular search, we must first review the relevant statutory scheme. Chapter 984 (entitled "Children and Families in Need of Services") creates a broad array of services available to children and families in need of services and imposes a variety of duties upon state agencies to achieve

4

several important goals.

This chapter includes providing services for child

runaways, children locked out of their home, children beyond the control of their parents, and habitual truants. See

Download D.O. V. STATE.pdf