STATE OF FLORIDA

v.

GRADY BROWN

FABER, Judge. ' O Sara IMM, Assistant State Attorney, Attorney for Appellant. I Jonathan Greenberg, Assistant Public Defender, Attorney fo1'Appe11ee Before, COHEN, FIGAROLA; HANZMAN, J]. '

HANZMAN, J.

[*2] INTRODUCTION - s ‘ The record, as well as the trial cou1t’s findings of fact — which are reviewed only for “clear error,” see D.H. v. State, 121 So. 3d 76, 79 (Fla. 3d DCA 2013) — reveal that at approximately 8:00 p.111. on March 3, 2012 Sergeant Daniel Chala, a seventeen (17) year veteran of the Miami-Dade Police Department, observed two people engaged ‘in sexual intercourse inside a pickup truck parked on a residential street. The officer, who was working uniform patrol, was in his vehicle but able to see a woman with her boots in the air and someone mounted on top of her in‘ a sexual position. I p A Aware that he was in an area known for prostitution, and concerned that: (a) there could possibly be a rape in progress; and (b) that this sexual act he was -witnessing was visible to the public, including children who may be in the neighborhood, Officer Chaladid what most people — applying common sense ~ would expect a police officer to do. He approached the vehicle and interrupted the occupants. This unexpected intrusion not surprisingly caused them to abruptly disengage and put their clothing on. The Defendant, Mr. Grady Brown, then sat up in the driver’s seat of the vehicle with the key in the ignition. ' g ' Upon opening the car door, and requesting that Mr. Brown and his companion exit, Officer Chala smelled a strong scent of alcohol and observed open containers in the vehicle. He also detected that Mr. Brown smelled of alcohol, had 7. [*3] i if I l slurred speech and blood shot eyes. Aiter Mr. Brown admitted that he had been drinking he was transported to the police station, administered a breath test, and ultimately arrested for DUI. The State later filed an information adding the additional charges of indecent exposure and soliciting a prostitute. I Mr. Brown filed a Motion to Suppress all evidence, arguing that there was no basis for an investigative stop (known as a Terry Stop), see Terry v. Ohio, 392 U.S. 1 (1968); the reason being that, according to Mr. Brown, Officer Chala did not have a well-founded reasonable suspicion that he had committed, was committing, or was about to commit a crime. Mackey v. State, 83 So. 3d 942, 945 (Fla. 3d DCA 2012) (an' investigative Terry stop “requires a reasonable suspicion that an individual has committed, is committing, or is about to commit a crime”). The trial court agreed and granted the motion, thereby effectively terminating the prosecution. We disagree and reverse. '

I.

Standard ofReview . A trial court’s ruling on a motion to suppress comes clothed with a presumption of correctness, “and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling,” see Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). This deference notwithstanding, the “trial court’s application of the law to [the] historical facts” is subject to de nova review. Mackey, supra at p. i [*4] 944. In other words, we review ale novo the trial court’s determination that the “facts” did not provide Officer Chala with the degree of “reasonable suspicion” required to conduct an investigative detention. D.H. v. State,-121 So. 3d 76, 79 (Fla. 3d DCA 2013) (application of facts to “determinations of reasonable suspicion and probable cause ... are reviewed de nova on appeal”). ' ~II. Analysis ' The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution prohibit unreasonable search and seizures, and there is no doubt that Mr. Brown was “seized” when Officer Chala opened the vehicle’s door and asked him to exit. See Popple v. State, 626 So. 2d I85 (Fla. 1993) (officer’s request that an occupant of a parked car step out ofhis vehicle was a “seizure” as opposed to a consensual encounter); Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010) (defendant was “seized” when police officer ordered him to turn off his car engine after noting he was asleep with the motor running in a mall parking lot); Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008) (driver in a stopped vehicle was “seized” when officer ordered that he roll down his window). While all “seizures,” including “those involving only a brief detention,” implicate constitutional concerns, see Gentles, supra at p. 1198, not all “seizures” are “unreasonable” and hence unconstitutional. Rather, “a police officer may constitutionally detain a citizen temporarily (a so-called investigative stop) if the i l [*5] l l r l l officer has a reasonable suspicion that [the] person has committed, is committing or is about to commit a crime.” Popple, 626 So. 2d at 186; Terry v. Ohio, supra. See also, Fla. Stat. 901.151(2)(2007) (“Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal » » offense”). So the question presented here is whether Officer Chala had a wellfounded reasonable suspicion that Mr. Brown was committing a crime. In assessing whether an officer had a well-founded reasonable suspicion of criminal activity “a court should consider all facts known at the time of the stop,” including factors such as time, location, a suspect's physical appearance, a suspects behavior, or “anything unusual that suggests criminal activity....” Parsons v. State, 825 So. 2d 406, 409 (Fia. 2d DCA 2002). Put simply a court “must consider the totality of the circumstances,” State v. Leonard, 103 So. 3d 998, 1000 (Fla. 3d DCA 2012), paying particular attention to “anything incongruous or unusual in the situation as interpreted in light of the officer’s kn0wledge.’? Parker . [*6] v. State, 18 So. 3d 555 (Fla. ist DCA 2008). For the stop to pass constitutionai muster, the totality of the circumstances must demonstrate that the officer had “a reasonable, articulable suspicion that criminal activity is afoot,” see Illinois v. Wardlow, 528 U.S. 119, 123-124 (2000); meaning that the officer must be able to “articulate more than an inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity. Id. See also Parsons, supra at p. 408 (an officer’s “[b]are suspicion or a mere hunch” is insufficient). ' , Importantly, and as the “reasonable suspicion” standard itself makes clear, an officer need‘ not observe a crime being committed in order to initiate a Terry stop, see Hernandez v. State, 784 So. 2d 1124, 1126 (Fla. 3d DCA 1999), as even conduct “consistent with innocent activity” can provide the requisite “reasonable suspicion” of criminal activity “when all the circumstances are taken into consideration.” State v. Cruse, 121 S0. 3d 9i (Fla. 3d DCA. 2013). In fact, the officer need not even conclude that a crime is “likely” taking place in order to have a “reasonable suspicion” that one may be in progress. The test is whether the officer had a “suspicion” -4 defined as, among other things, “the thought there is probably something wrong,” see, Webster’s Encyclopedic Dictionary, 1980 Ed., and whether that “suspicion” was reasonable — nothing more. See, e.g., State v. Outler, 20 So. 3d 421, 423 (Fla. 3d DCA 2009) (“The quantum of suspicion [*7] i i i i t required [for a Terry stop] is less than that for probable cause and ‘considerably less than proofofwrongdoing by a preponderance ofthe evidence”). Here, Officer Chala — an experienced veteran officer familiar with the character of the area he was patrolling — witnessed two people having intercourse in a public neighborhood; sexual activity that was clearly visible to the public as Officer Chala was able to witness it from the vantage point of his patrol car. So Officer Chala had two options. His first option was to initiate an investigative stop in order to ensure that a forcible rape was not in progress; ascertain whether the occupants were involved in illegal prostitution; and prevent any further possible violation of Fla. Stat. § '796.07(2)(e), prohibiting “lewdness” - defined as any “indecent or_ obscene act.” His second option was to simply move on and let Mr. Brown and his companion go about their business. Mr. Brown, relying on the Second District’s decision in Cerrone v. State,_744 So. 2d 590 (Fla. 2d DCA 1999), persuaded the trial judge that Officer Chala was constitutionally compelled to choose option number two based on the claim that: (a) it is not a crime per se to engage in a sex act in an automobile in Florida; and (b) Cerrone holds that observation of a couple having intercourse does not give rise to a reasonable suspicion of criminal activity. We disagree. , As an initial matter, the trial court’s conclusion that sexual activity in a car is not “per se” a crime ~ while technically correct - is legally irrelevant. See, e.g., . [*8] I‘. E l ....-.._._.,__. I i i t |I . |I I | I l Mackey, supra (“whether, as a general proposition, mere possession of a firearm is not illegal in Florida, is beside the point”). In some circumstances engaging in sexual intercourse in av vehicle parked in a public place would in fact be an unlawful “indecent or obscene act.” No one, for example, would responsibly argue that it is “legal” to engage in intercourse in the front seat of a car parkedadjacent to ,a playground outside an elementary school in broad daylight. On the other hand, engaging in intercourse in a car parked on a deserted road in the middle of the night might be “legal.” But the issue here is not whether “sex in a car” is per se legal or illegal. Nor is it whether the defendant would (or could) ultimately be convicted of committing an “indecent or obscene act.” It is whether Officer Chala had a “reasonable suspicion” that a crime was being committed. And Officer Chala clearly had a reasonable basis to suspect that a couple having intercourse in a vehicle parked in a residential neighborhood were committing a crime; particularly when their activities are visible to the public at large. See, e.g., State v. Farina, 9l5 So. 2d 685 (Fla. 2d DCA 2005); State v. Kees, 919 So. 2d 504 (Fla. 5thlDCA 2005); Conforti v. State, 200 So. 2d 350 (Fla. annon 2001) Officer Chala also knew that the neighborhood was frequented by prostitutes and had been called out to investigate possible rapes in theuarea. In our view, his decision to stop and investigate was not only constitutionally permissible, it was the type of police work that should be encouraged. In fact, we believe that “it [*9] would have been poor police work indeed for [Officer Chala] to have failed to investigate” the matter and simply carry on hoping that no rape was taking place and that no children wandering the neighborhood stumbled upon Mr. Brown’s open sexual encounter. Terry, 392 U.S. at 23; State v. Lopez, 29 So. 3d 399, 401 (Fla. 3d DCA 2010). i Although deciding whether -— in light of the “totality of circumstances” — an officer had a “reasonable suspicion” of criminal activity obviously requires a fact intensive inquiry, and it is highly unlikely that any two factual scenarios are precisely the “same,” Mr. Brown argues - and the trial court concluded - that this case is “controlled” by Cerrone - a proverbial "‘red cow.” See Corn v. City of Lauderdale Lakes, 997 F. 2d 1369, I390 fn, 2 (llth Cir. 1993), (“The term ‘red covv’ is used in some legal circles, particularly in Florida, to describe a case that is directly on point, a commanding precedent”). We again disagree. In Cerrone an officer had been dispatched to the parking lot of a shoe store afier the police received a call concerning a suspicious van. When the officer approached the van he heard voices, causing him to go to the front window. When he looked inside he observed two people who appeared to be having sex. The officer then knocked on the door, identified himself, and asked the occupants to “exit the vehicle. l . [*10] After the occupants exited the van the officer “conducted a field interrogation” which included! a complete search of the female occupant’s purse. Upon finding marijuana the officer arrested the female occupant and placed both her and the defendant — Mr. Cerrone — in his patrol car. The officer then called for a K-9 unit which arrived twenty five minutes later. “During all this time Mr. Cerrone was held in the parked car.” 744 So. 2d at 591. Following the dog’s alert, marijuana was found in the van’s glove compartment and Mr. Cerrone was arrested. - . g Concluding that Mr. Cerrone’s motion to suppress this evidence should have been granted, the appellate court poignantly observed that “once Cerrone and his passenger got out of the van, there were no other facts which would have justified a detention.” See Cerrone 744 So. 2d at 591. The officer nevertheless held Mr. Cerrone for almost half anihour while he waited for a K—9 team to conduct a search. The case sub judice differs from Cerrone in two material respects. First, nothing in the Cerrone opinion suggests that the officer was able to observe the sexual activity from a public vantage point — as Officer Chala was able to do here. Rather the officer in Cerrone approached the van not because. he personally witnessed possible criminal activity, but because he was dispatched in response to a call which reported nothing more than a suspicious van. And he apparently had .._. ti__._ [*11] to walk in front of the van and look through the front window before he was able to see the occupants having sex. See also, Satterfield v. State, 609 So. 2d 157 (Fla. 2d DCA 1992) (officer who viewed vehicle occupants “fooling around” while parked on a “private road” used for shooting practice did not have a reasonable basis to suspect criminal activity). ' Secondly, as the Cerrone court emphasized, after Mr. Cerrone and his passenger exited the van, “there were no other facts which would have justified a detention.” The opposite is true here. Once Officer Chala opened the car door he observed open containers and was able to detect that Mr. Brown -.~ who had control of the vehicle — was significantly impaired. He did not detain Mr. Brown without cause while he waited a half an hour for a K-9 or anyone else to “search” for evidence. Rather, the evidence of Mr. Brown’s criminality was in plain view immediately upon his exiting the car. See State v. Redding, 362 So. 2d 1'70 (Fla. 2d DCA 1978) (an officer who has a prior justification for an intrusion can seize contraband or incriminating evidence which is in plain view). A The bottom line is that Officer Chala - having previously observed possible criminal activity (i.e., sexual intercourse in public view), and having other knowledge that a crime might be afoot, clearly had “prior justification for an intrusion,” see Redding, supra at p. 172, because, in our view he had a “reasonable suspicion” that the occupants of the vehicle were committing a crime. And his ll J i i [*12] i l J ...._____,?.<._,.__, ,L ..._. .._.___._._,__..-._.-. ! initial encounter »~ which was justified — led to “facts that [justified] a detention” — facts which he immediately observed. Cerrone, supra at p. 591. Given the “totality. of circumstances” present here we simply cannot conclude that Officer Chala had merely a “hunch” that criminal activity maybe taking place. 9 See, e.g., Beckham v. State, 934 So. 2d 681 (Fla. 2d DCA 2006) (fact that three people are standing in a car wash stall in neighborhood. known for drug transactions may supply officer with_a “hunch” but not a reasonable suspicion); Hills v. State, 629 So. 2d 152 (Fla. lst DCA 1993) (behavior which maybe suspicious but not demonstrably or conceivably criminal is not sufficient to establish founded suspicion); Walker v. State, 846 So. 2d 643 (Fla. 2d DCA 2003) (“A bare suspicion or mere “hunch” that criminal activity may be occurring is not sufficient”-). Nor is this a case where Officer'Chala never suspected any criminal activity at all. See, e.g., Cree v. State, 619 So. 2d 398 (Fla. 2d DCA 1993) (officer “never articulated any reasonable suspicion that he might have had, or that he really suspected anything at all”). In Tamer v. State, 484 So. 2d 583 (Fla. 1986) our Supreme Court, citing United States v. Cortez, 101 S. Ct. 690 (1981), observed that: Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like “articuIab_le reasons” and “founded suspicion” are not selfdefining; they fall short ofproviding clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances-~t11e whole l2 [*13] picture-——must be taken into account. Based upon that whole picture the detaining officers must have a particularizcd and objective basis for suspecting the particular person stopped ofcriminal activity. 101 S. Ct. at 6_95. Based upon the “whole picture” here “[we] believe that circumstances observed by [Officer Chala, a seventeen year veteran police officer] vvere sufficient for him to reasonably suspect [Mr. Brown] of criminal activity. They were sufficient for the short investigative stop which produced evidence sufficientfor a probable cause arrest.” Tamer v. State, 484 So. 2d at 585.

III.

CONCLUSION

As we observed earlier, most citizens applying simple common sense would undoubtedly believe that Officer Chala had “reas0n_able suspicion” of criminal activity sufficient to justify a brief investigative stop. And while there certainly are instances where there is much light between common sense and the law, this is not one of them. The trial courts order granting Mr. Brown’s Motion to Suppress is REVERSED, and this cause is remanded for further proceedings consistent with this opinion.‘ COHEN, J. Concurs. A V FIGAROLA, J. Concurs. ' Because we conclude that Officer Chala’s investigative stop wasjustified due to a reasonable suspicion ofcriminal activity we need not address the State's alternative argument that reversal is warranted because the officer was acting in a community caretaker capacity. See, e.g., Bailey v. State, 3l9 So. 2d 22 (Fla. 1975); State, Dept. of Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d i349 (Fla. 2d DCA 1992). - I3