Baxter v. State

1

Jason Hassan Baxter, Appellant, v. State of Florida, Appellee.

No. 5D2023-0118

Florida Court of Appeals, Fifth District

August 2, 2024

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

On appeal from the County Court for Duval County. Julie K Taylor, Judge. LT Case No. 16-2021-MM-14027-AXXX

Charlie Cofer, Public Defender, and Elizabeth Hogan Webb Assistant Public Defender, Jacksonville, and Nancy Ryan Special Assistant Public Defender, Daytona Beach, for Appellant.

Carlos J. Martinez, Public Defender, Miami, Megan Long and Justin F. Karpf, Special Assistant Public Defenders, Tallahassee, amicus curiae, for Florida Public Defender Association, Inc., in support of Appellant.

Daniel Tibbitt, Amicus Chair and Dianne Carames, President, Miami Chapter, North Miami, Benjamin Eisenberg, of Office of the Public Defender, West Palm Beach, Jackie Perczek, of Black Srebnick, Miami, and Catherine Arcabascio, of Nova Southeastern University, Shepard Broad College of Law, Fort Lauderdale, amicus curiae, for Florida Association of Criminal Defense Lawyers, in support of Appellant.

Krista A. Dolan, of Southern Poverty Law Center, Tallahassee, Julian Clark, of American Civil Liberties Union Foundation, pro hac vice, New York, and Daniel Tilley, American Civil Liberties Union of Florida, Miami, amicus curiae, in support of Appellant.

Ashley Moody, Attorney General, and Christina Piotrowski and Adam B. Wilson, Assistant Attorneys General, Tallahassee, for Appellee.

Arthur I. Jacobs, of Jacobs Scholz &Wyler, LLC, Fernandina Beach, for Florida Prosecuting Attorney's Association, amicus curiae, in support of Appellee.

Robert Wayne Evans and Benjamin M. Lagos, of Allen, Norton &Blue, P.A., Tallahassee, for Florida Sheriffs Association, amicus curiae, in support of Appellee.

ON REHEARING EN BANC

KILBANE, J.

Having been presented with an issue of exceptional importance, we determined to rehear this case en banc, withdraw this Court's previously issued opinion, and substitute this opinion in its place. See Fla. R. App. P. 9.331(a).

This case requires us to examine the "plain smell" doctrine as applied to the smell of cannabis^[1] in light of changes to Florida and federal law regarding hemp. Because the "plain smell" of cannabis is no longer clearly indicative of criminal activity, it alone cannot provide reasonable suspicion to support an investigatory detention. However, because the officer reasonably relied on binding precedent, we affirm.

Facts

Jason Hassan Baxter was arrested and charged with possession of cannabis and drug paraphernalia. He filed a motion to suppress arguing that he was unlawfully detained without reasonable suspicion of criminal activity. The trial court held an evidentiary hearing on Baxter's motion.

Officer Accra of the Jacksonville Sheriff's Office testified he was on patrol in Duval County, Florida, on the night of August 16, 2021.^[2] While on patrol, Accra observed a vehicle pull into the parking lot of a closed CVS. Accra drove by and made a U-turn to go back to the CVS parking lot and speak with the driver of that vehicle. Accra testified he initially approached the vehicle because he

was concerned . . . from a well-being standpoint, also the fact that part of our mission statement on the midnight squad from our lieutenant and chief up is to ensure property crimes aren't being committed. As in this, [the vehicle] was outside of a closed business. Just to make sure a burglary wasn't progressing as well.

Accra explained it was "a common occurrence" for cars to be parked outside of closed businesses, and he regularly stops to check if those people are doing all right. Accra was not responding to a call for assistance. He did not pull Baxter over for a traffic infraction. He did not stop Baxter for any unlawful conduct. Accra further testified he observed Baxter make an "overt" movement to place something in the backseat of the vehicle but that this movement could not be seen on video. When he walked up to Baxter's vehicle, Accra smelled the odor or aroma of fresh marijuana and, by his own admission, began a criminal investigation.

As viewed on the bodycam video, Accra walked up to the open passenger window, and Baxter cordially greeted him. Accra told Baxter he was "making contact" because Baxter was parked outside a closed business. Baxter responded that he was about to leave and that he was waiting for a friend "to get from the gym." Accra continued his line of inquiry regarding Baxter's reason for waiting in the parking lot. Baxter explained that initially he pulled off to check his tire but was about to leave. Baxter then identified the name of the apartment complex where his friend lived. Accra asked why Baxter was in a hurry to leave if his friend had yet to arrive at the parking lot. Baxter clarified that he was not waiting for his friend to get to the parking lot. He reiterated that he pulled off to check his tire and was leaving to go to his friend's residence. Accra instructed Baxter to stand by so that he could check everything out. Baxter complied.

Several minutes later, another officer arrived on scene and without further conversation with Baxter the second officer directed him to step out of his vehicle. Once Baxter was out of the vehicle, officers asked him if he had a medical marijuana card, if he smoked marijuana, or if he smoked hemp products. Baxter was handcuffed and placed in the backseat of Accra's patrol car. Accra explained he was going to search the vehicle based on Baxter's statements in response to the questions regarding marijuana and hemp and because there was probable cause based on the smell of marijuana. The search of the vehicle revealed marijuana and drug paraphernalia.

At the hearing on Baxter's motion to suppress, the State argued that the encounter began as a consensual encounter, and Accra properly began a criminal investigation "upon making contact" because he smelled marijuana. Defense counsel responded that reasonable suspicion was not established because Accra did not ask questions at the outset regarding whether Baxter had a medical marijuana card or hemp. The trial court asked defense counsel when the questions regarding hemp and medical marijuana were asked. After confirming that these questions were asked only after Baxter was removed from the vehicle, the court asked defense counsel for case law on when those questions must be asked. Because defense counsel did not have any authority at that time, the trial court permitted both sides additional time to present case law on the issue.

Baxter's supplemental memorandum cited Kilburn v. State, 297 So.3d 671, 675 (Fla. 1st DCA 2020), for the proposition that Accra had not developed reasonable suspicion in addition to State v. Nord, 28 Fla.L.Weekly Supp. 511, 512-13 (Fla. 20th Cir. Ct. Aug. 8, 2020), where a trial court granted a motion to suppress under nearly identical factual circumstances. The State primarily relied on Johnson v. State, 275 So.3d 800, 802 (Fla. 1st DCA 2019), and Owens v. State, 317 So.3d 1218, 1220 (Fla. 2d DCA 2021), in support of its position that irrespective of whether there could have been a lawful explanation, smell alone was still sufficient to constitute probable cause.

The trial court reviewed the supplemental memorandums and case law provided from both sides and denied Baxter's motion to suppress. The court explained that Accra developed reasonable suspicion "once he detected the odor of marijuana, which it appears he did as soon as the defendant rolled down his window and they came into contact with each other." Subsequently, Baxter pled nolo contendere to possession of drug paraphernalia specifically reserving his right to appeal the denial of his dispositive motion to suppress.

Analysis

Baxter argues^[3] that changes to Florida and federal law legalizing hemp require law enforcement officers to develop some indication that criminal activity is afoot in connection with the smell of cannabis before conducting an investigatory detention. He contends that the officer here failed to do so, which rendered his detention unconstitutional. Based on recent changes to the law, we agree.

All citizens have the right to be free from unreasonable seizure guaranteed in the Fourth Amendment to the United States Constitution and article 1, section 12 of the Florida Constitution. Furthermore, "[t]he protections against unreasonable searches and seizures afforded by the Florida Constitution must be construed in conformity with the Fourth Amendment to the United States Constitution as interpreted by the United States Supreme Court." Caldwell v. State, 41 So.3d 188, 195 (Fla. 2010) (citing Art. I, § 12, Fla. Const.).

Based on these constitutional principles, there are three levels of encounters that law enforcement may have with citizens:

1) consensual encounters, during which the citizen remains free to leave at will, where a citizen may either voluntarily comply with a police officer's request or simply choose to ignore it; 2) an investigatory stop based on reasonable suspicion; and 3) an arrest supported by probable cause that a crime has been or is being committed.

McMaster v. State, 780 So.2d 1026, 1028 (Fla. 5th DCA 2001) (citing State v. Roux, 702 So.2d 240 (Fla 5th DCA 1997)). To justify an investigatory stop, a law enforcement officer must develop reasonable suspicion to believe that a person has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2021); State v. Allen, 994 So.2d 1192, 1193 (Fla. 5th DCA 2008). "Therefore, 'an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.'" McMaster, 780...