IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
A.M., A CHILD,
Appellant,
v. Case No. 5D17-1062
STATE OF FLORIDA,
Appellee.
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Opinion filed December 22, 2017
Appeal from the Circuit Court
for Orange County,
Gail A. Adams, Judge.
James S. Purdy, Public Defender, and
Benjamin A. Schumann, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.
EDWARDS, J.
A.M. appeals the trial court’s denial of his motion to suppress a pistol the police
gathered during a warrantless arrest incidental to the theft of a “bait vehicle.” For the
reasons set forth below, we agree that the trial court erred in denying the motion to
suppress because the investigating officer had insufficient evidence to order a patrol unit
to stop a different “non-bait” vehicle in which Appellant was riding as a passenger.
As part of normal operations, the sheriff’s department placed a “bait vehicle” on
the street to determine if somebody would attempt to steal it. Indeed, somebody did enter
and drive the bait vehicle from its original location and parked it near a wooded area and
a house. The investigating deputy, Deputy Schmeltzer, testified that he responded to the
new location where he observed two males walking back and forth between the bait
vehicle and the house. The car doors were already open when Schmeltzer arrived. He
did not see either male touch the car doors, sit in, drive, move, or take anything from the
bait vehicle. Specifically, he did not see A.M. sit in the car, take anything from or place
anything in the car, or move the car. During the hours that he observed the bait vehicle,
Schmeltzer observed A.M. lean into the vehicle twice.
Schmeltzer observed a second vehicle (“non-bait vehicle”) arrive at the house, the
two males he was surveilling got in, and the second vehicle left the house with four
occupants. Schmeltzer radioed a request to have the non-bait vehicle stopped for the
sole purpose of identifying the two males he observed near the bait vehicle. Deputy
Bonetti, in a marked patrol car, stopped the non-bait vehicle based upon what he
understood to be a felony stop for grand theft of a motor vehicle. Bonetti had no
independent probable cause for the stop and assumed that the auto crimes unit
requesting the stop had probable cause. Deputy Borrero was also involved in the stop;
however, he also had no independent probable cause to stop or search the non-bait
vehicle. The officers neither identified nor relied upon any traffic infractions as a basis for
the stop. A K-9 officer and Borrero searched the occupants of the non-bait car. Borrero
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found a gun in A.M.’s waistband; however, police did not find the keys or anything else
related to the bait vehicle in A.M.’s possession.
The State charged A.M. by delinquency petition with carrying a concealed weapon,
possession of a weapon by a minor, and trespass in a conveyance. Defense counsel
filed a motion to suppress all evidence resulting from the warrantless non-bait vehicle
stop and search and argued that Schmeltzer’s observations of A.M. did not support a
reasonable suspicion that A.M. was committing a crime. The trial court denied the motion
to suppress, finding that leaning into the bait vehicle twice was sufficient exercise of
control over the stolen bait vehicle to justify probable cause that A.M. had committed
grand theft of a motor vehicle, which in turn justified stopping and searching the non-bait
vehicle and its occupants. At the subsequent disposition hearing, the trial court granted
the defense motion for judgment of acquittal regarding the charge of trespass in a
conveyance, finding that the State failed to prove A.M. had knowledge of the stolen nature
of the bait vehicle. The court found sufficient evidence to find A.M. delinquent regarding
the firearm charges and placed him on probation with restrictive terms, but withheld
adjudication.
In order for a person to commit grand theft of a motor vehicle, he or she must
exercise some control over the vehicle, and at a minimum have knowledge that he lacked
permission to drive, occupy, or enter that vehicle. See M.D.S. v. State, 982 So. 2d 1282,
1284 (Fla. 2d DCA 2002). The State does not claim that A.M.’s mere presence near the
stolen bait vehicle supplied probable cause. Indeed, it is well settled that mere proximity
to stolen property without more is insufficient. See Bronson v. State, 926 So. 2d 480, 485
(Fla. 2d DCA 2006). However, the State argued below and on appeal that leaning into
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the bait vehicle twice over a period of hours, without more, provided probable cause. By
leaning into the vehicle, A.M. certainly demonstrated some level of curiosity or interest in
the bait vehicle; however, without more, this action is not evidence that he had committed
or was committing any crime. See M.D.S., 982 So. 2d at 1284-85 (holding that juvenile’s
possession of the stolen vehicle’s keys, which he claimed to have found outside the
vehicle, would not support a finding of probable cause). Under the circumstances of this
case, we hold that there was insufficient probable cause to stop the non-bait vehicle; thus,
all evidence obtained from the unlawful stop should have been suppressed as fruit of the
poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 485 (1963). Accordingly
we reverse the trial court’s order finding A.M. delinquent based on the firearm charges
and order that there shall be no further proceedings against A.M. based on those charges
as the State offered no evidence separate from that obtained during the stop.
REVERSED.
SAWAYA and BERGER, JJ., concur.
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