author: LABARGA, C.J. PARIENTE, J.,

text:
    Gregory PRESLEY, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-2089
    Supreme Court of Florida.
    [September 20, 2017]

      Andy Thomas, Public Defender, Laurel Cornell Niles, Steven L. Seliger, and Joel Arnold, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Samuel B. Steinberg, and Robert “Charlie” Lee, Assistant Attorneys General, Tallahassee, Florida, for Respondent
   LABARGA, C.J.

This case is before the Court for review of the decision of the First District Court of Appeal in Presley v. State, 204 So.3d 84 (Fla. 1st DCA 2016). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Wilson v. State (Wilson v. State), 734 So.2d 1107 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision of the First District and hold that law enforcement officers may, as a matter of course, detain the passengers of a vehicle for the reasonable duration of a traffic stop without violating the Fourth Amendment.

FACTS AND PROCEDURAL BACKGROUND

At the time of the events in this case, Gregory Presley was on drug offender probation. A special condition of the probation provided, “You will abstain entirely from the use of alcohol and/or illegal drugs, and you will not associate with anyone who is illegally using drugs or consuming alcohol.”

During the early morning hours of January 29, 2015, Gainesville police officer Tar-ik Jallad conducted a traffic stop of a vehicle for a faulty taillight and a stop sign violation. Presley was one of two passengers in the vehicle. Officers John Pandak and Joshua Meurer subsequently responded to the scene based upon a request for backup due to a struggle occurring with the other passenger, who had exited the vehicle and attempted to leave. At the time of their arrival, Officer Jallad and a second officer were dealing with that passenger, who was in handcuffs and behaving belligerently. Presley and the driver were standing outside of the vehicle. Officer Pandak approached Presley and asked for his name and identification, both of which Presley provided. Presley volunteered his date of birth. Officer Pandak asked general questions, and Presley stated that the group had been at his aunt’s house. During the interaction, Presley admitted he had been consuming alcohol. When Presley asked, “So what is the problem?” Officer Pandak responded, “I don’t know, man. This is a traffic stop, you’re part of it. So we’re hanging out. That’s all there is to it.” Officer Pandak later stated, “Well, we’re just talking, man. You can’t go anywhere at the moment because you’re part of this stop. That’s all.” After a background check revealed Presley was on drug offender probation with the special condition that he not consume alcohol, Presley was arrested for the violation of probation. During the search incident to arrest, Officer Pandak recovered a plastic bag containing powder cocaine from Presley’s pocket.

Presley filed a motion to suppress his statements and all evidence seized on the basis that he was illegally detained during the traffic stop. The circuit court denied the motion, concluding that although Presley was detained, the limited nature and duration of the detention did not significantly interfere with his Fourth Amendment liberty interests. The circuit court revoked Presley’s probation and sentenced him to multiple terms of incarceration for his earlier drug crimes.

The First District Court of Appeal affirmed, holding that “an officer may, as a matter of course, detain a passenger during a lawful traffic stop without violating the passenger’s Fourth Amendment rights.” Presley, 204 So.3d at 85-86. The district court fully concurred with the unanimous en bane decision of the Fifth District Court of Appeal in Aguiar v. State, 199 So.3d 920 (Fla. 5th DCA 2016). Presley, 204 So.3d at 89.

The First District recognized that in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and Maryland v. Wilson (Maryland v. Wilson), 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the United States Supreme Court held that both drivers and passengers can be asked to exit the vehicle during a traffic stop. Presley, 204 So.3d at 87. The First District then explained that the seminal case in Florida on passenger detentions during traffic stops is Wilson v. State, the case with which conflict was certified. Presley, 204 So.3d at 88-89. In Wilson v. State, the Fourth District Court of Appeal held:

[A] police officer conducting a lawful traffic stop may not, as a matter of course, order a passenger who has left the stopped vehicle to return to and remain in the vehicle until completion of the stop. The officer must have an artic-ulable founded suspicion of criminal activity or a reasonable belief that the passenger poses a threat to the safety of the officer, himself, or others before ordering the passenger to return to and remain in the vehicle.

734 So.2d at 1113. The Fourth District determined that:

[A] command preventing an innocent passenger from leaving the scene of a traffic stop to continue on his independent way is a greater intrusion upon personal liberty than an order simply directing a passenger out of the vehicle.' Such an arbitrary interference with the freedom of movement of one who is not suspected of any illegal activity whatsoever cannot be classified as a de minimis intrusion.

Id. at 1111-12.

■The First District noted that the-Aguiar court' concluded the analysis in Wilson v. State was flawed because it failed to give sufficient deference to officer safety. Presley, 204 So.3d at 88 (citing Aguiar, 199 So.3d at 923). The Fifth District in Aguiar* posited that, while allowing a passenger to remain in the vehicle during a stop posed a danger to officers in that the passenger might have access to weapons, allowing a passenger to leave the scene could also present a dangerous situation. 199 So.3d at 925. For example, the passenger might return to attack the officer while the officer is focused on the driver. Id. The Fifth District further noted, “[a] departing passenger is a distraction that divides the officer’s, focus and thereby increases the risk of harm to the officer.” Id. The First District acknowledged the Aguiar court’s disagreement with the. Fourth District’s conclusion that detaining the passenger for the duration of the stop was not a de minimis intrusion:

[E]ven if detaining a passenger who desires to leave is -more burdensome than directing a stopped passenger to step out of the vehicle, the infringement is minimal in light of the fact that: (1) the passenger’s planned mode of travel has. already been lawfully interrupted; (2) the passenger' has already beén “stopped” due to the driver’s lawful detention; and (3) routine traffic stops are brief in duration. ,,. Because 'the legitimate and weighty concern of officer safety can only be addressed “if the officers routinely exercise unquestioned command of the situation[,]” we believe that this interest outweighs the minimal intrusion on those few passengers who might prefer to leave the scene.

Presley, 204 So.3d at 88 (quoting Aguiar, 199 So.3d at 925-26 (quoting Maryland v. Wilson, 519 U.S. at 414, 117 S.Ct. 882)).

Additionally, the Aguiar court determined that two Supreme Court cases— Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), and Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)—support the conclusion that a passenger may be detained for the duration of a traffic stop. See Presley, 204 So.3d at 88-89 (citing Aguiar, 199 So.3d at 927-30). The First District noted that in both cases, the Supreme Court held a traffic stop seizes both the driver and any passengers. Presley, 204 So.3d at 88-89 (citing Brendlin, 551 U.S. at 251, 127 S.Ct. 2400; Johnson, 555 U.S, at 327; 129 S.Ct. 781). The Supreme Court in Johnson further concluded that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop ... do' not-convert the encounter into something other than a lawful seizure, so long as those inquiries do not'measurably extend the stop’s duration.” See Presley, 204 So.3d at 89 (quoting Johnson, 555 U.S. at 333, 129 S.Ct. 781). Noting that the Aguiar eourt relied upon Brendlin and Johnson .to hold an officer may, as a matter of course, detain a passenger during a lawful stop without violating the- Fourth Amendment, the First. District agreed with this conclusion and certified conflict with Wilson v. State, as well as “its progeny”. Presley, 204 So.3d at 89.

This review follows.

ANALYSIS

Standards of Review

The Fourth Amendment to the United States Constitution and section 12 of Florida’s Declaration of Rights both guarantee citizens the right to be free from unreasonable searches a-nd.seizures. The search and seizure provision of the Florida Constitution contains a conformity clause providing that the right

shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

Art. I, § 12, Fla. Const.; see also State v. Butler, 655 So.2d 1123, 1125 (Fla. 1995) (“This Court is bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions.”).

The holdings in Presley and Wilson v. State reach opposite conclusions on a legal issue—whether law enforcement officers may, during a lawful traffic stop, detain a passenger as a matter of course for the duration of the stop without violating the passenger’s Fourth Amendment rights. Because this is a pure question of law, the standard of review is de novo. Twilegar v. State, 42 So.3d 177, 192 (Fla. 2010). However, to the extent any factual findings are involved in the application of the law to a specific case, the findings of the circuit court “must be sustained if supported by competent substantial evidence.” Id.

As noted by the United States Supreme Court, “[t]he touchstone of [an] analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Mimms, 434 U.S. at 108-09, 98 S.Ct. 330 (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Reasonableness .., depends ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’” Mimms, 434 U.S. at 109, 98 S.Ct. 330 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).

Supreme Court Precedent

Because the Presley and Aguiar courts concluded that the . evolution of- United States Supreme Court precedent with regard to traffic stops and passengers necessitated a reconsideration of Wilson v. State—a conclusion the State contends is also supported by the Supreme Court’s decision in Rodriguez v. United States, — U.S.—, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015)—a review of those cases follows.

In Mimms, the Supreme Court held that law enforcement officers during a traffic stop could ask the driver to exit .the vehicle without violating the Fourth Amendment. 434 U.S. at 108-09, 98 S.Ct. 330. Weighing the competing interests, the' Court first stated:

We think it too plain for-argument that the State’s proffered justification— the safety of the officer—is both legitimate' and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, [ ] 392 U.S. at 23, 88 S.Ct. 1868. And we have specifically recognized the inordinate risk confronting an officer-as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J. Crim. L. C. & P.S. 93 (1963).” Adams v. Williams, 407 U.S. 143, 148 n.3, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly-declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id. at 234 n.5, 94 S.Ct. 467.

Id. at 110. The Supreme Court then concluded that the intrusion upon the liberty interest of the driver was de minimis:

The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to the level of a “ ‘petty indignity.’ ” Terry v. Ohio, 392 U.S. at 17, 88 S.Ct. 1868. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.

Id. at 111.

In Maryland v. Wilson, the Supreme Court applied the holding in Mimms to passengers in vehicles that are lawfully stopped. 519 U.S. at 410, 117 S.Ct. 882. The Court noted the same interest in officer safety is present regardless of whether the vehicle occupant is a driver or passenger:

Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994). In the case of passengers, the danger of the officer’s standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.

Id. at 413. The Supreme Court concluded the personal liberty interest of the passenger is greater than that of the driver because, while there is probable cause to believe the driver has committed a vehicular offense, “there is no such reason to stop or detain the passengers.” Id. However, the Court determined that the additional intrusion in asking a passenger to exit the vehicle was minimal:

[A]s a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver.

Id. at 413-14. The Supreme Court quoted Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), in support of its conclusion that the Fourth Amendment permits law enforcement officers to order passengers out of a vehicle:

[In Summers,] the police had obtained a search warrant for contraband thought to be located in a residence,' but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended “upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search.” Id. at 695, 101 S.Ct. 2587. In holding as it did, the Court said:
Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.

Maryland v. Wilson, 519 U.S. at 414, 117 S.Ct. 882 (quoting Summers, 452 U.S. at 702-03, 101 S.Ct. 2587).

The Supreme Court rejected Wilson’s contention that, because the Court generally eschews bright-line rules in the Fourth Amendment context, it should not adopt a bright-line rule with regard to passengers during' lawful traffic stops: “[T]hat we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to passengers as well.” Id. at 413 n.1, 117 S.Ct. 882. The Supreme Court also declined to address the State of Maryland’s assertion that the Court should hold an officer -may forcibly detain a passenger for the duration of a stop. Id. at 415 n.3, 117 S.Ct. 882. The Supreme Court concluded that Wilson was not subjected to detention based upon the stop of the vehicle once he exited it at the officer’s request. Id. Instead, when Wilson exited the vehicle, crack cocaine fell to the ground. Id. at 411, 117 S.Ct. 882. Therefore, Wilson was arrested based on probable cause to believe he was guilty of possession of cocaine with intent to distribute. Id. at 415 n.3, 117 S.Ct. 882. As a result, the Supreme Court stated, “The question which Maryland wishes answered ... is not presented by this ease, and we express no opinion upon it.” Id. Thus, Maryland v. Wilson did not resolve the issue presented by this case—the detention of a passenger as a matter of course during a traffic stop.

In Brendlin, a unanimous Supreme Court held that a traffic stop seizes both driver and passengers for Fourth Amendment purposes, such that a-passenger may challenge the constitutionality of the stop. 551 U.S. at 251, 127 S.Ct. 2400. In that case, two officers stopped a vehicle to verify that a temporary permit affixed to the vehicle was actually assigned to the.vehicle. Id. at 252, 127 S.Ct. 2400. One officer recognized the passenger as “one of the Brendlin brothers,” and knew that one of the brothers had “dropped out of parole supervision.” Id. The officer verified that Brendlin was a parole violator with an outstanding no-bail arrest warrant and ordered Brendlin out of the vehicle. Id. During the search incident to arrest,' the officers found a syringe cap on his person, and a search of the vehicle revealed tubing, a scale, and “other things used to produce methamphetamine.” Id. Brendlin was charged with possession and manufacture of methamphetamine. Id. at 253, 127 S.Ct. 2400. He moved to suppress the evidence, contending the traffic stop constituted an unlawful seizure of his person. Id.

• In concluding that passengers are seized during a traffic stop for Fourth Amendment purposes, the Supreme Court first noted the general proposition that:

[a] person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, “‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement, Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), “through means intentionally applied,” Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (emphasis in original). Thus, an “unintended person ... [may be]' the object of the detention,” so long as the detention is “willful”' and not merely the consequence of “an unknowing act.” Id. at 596, 109 S.Ct. 1378.

Id. at 254, 127 S.Ct. 2400. The Court then addressed the State of California’s assertion that Brendlin was not seized and, therefore, could not claim the evidence was tainted by an unconstitutional stop:

We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.
A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver ,,. and the police activity that normally amounts to intrusion on “privacy and personal Security” does not normally (and did not here) distinguish between passenger and driver. An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow .people to come and gq. freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even, when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would, be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.
It is also reasonable for passengers to expect that a police officer at the scene .of a crime,'arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, [] we held that during a lawful traffic stop an. officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. In fashioning this rule, we invoked our earlier statement that “ ‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.’ ” Wilson, [ 519 U.S.] at 414, 117 S.Ct. 882 (quoting Michigan v. Summers, 462 U.S. 692, 702-703, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)). What we have said in these opinions probably reflects a societal expectation of “‘unquestioned [police] command’ ” at odds with any notion that a passenger would feel free.to leave, or to terminate the personal encounter any other way, without advance permission.

Id. at 257-58, 127 S.Ct. 2400 (some citations and footnote omitted). Based upon this analysis, the Supreme Court held that Brendlin was seized from the moment the vehicle stopped on the side of the road, and it was error for the trial court to conclude that seizure did not occur until the formal arrest. Id. at 263, 127 S.Ct. 2400.

In Johnson—another unanimous Supreme Court decision—members of a gang task force stopped a vehicle when a license plate check revealed the registration had been suspended. 555 U.S. at 327, 129 S.Ct. 781. An officer noticed one of the two passengers, Johnson, wore colors consistent with gang membership and was in possession of a police scanner. Id. at 328, 129 S.Ct. 781. In response to the officer’s questions, Johnson provided his name and date of birth, and he volunteered the city he was from—which the officer knew was home to a Crips gang.1 Id. Johnson also admitted he had previously been incarcerated for burglary. Id. The officer asked Johnson to exit the vehicle so she could distance him from the other passenger and obtain “intelligence” about the gang of which Johnson might be a member. Id. Based upon-' her observations and Johnson’s answers to her questions while he was still seated in the vehicle, the officer suspected he might possess a weapon, so when Johnson exited, she frisked him and felt the butt of a gun. Id.

After being charged with possession of a weapon by a prohibited possessor, Johnson moved to suppress the evidence as the fruit of an unlawful search. Id. at 329, 129 S.Ct. 781. In concluding the trial court properly denied suppression, the Supreme Court expressed that- most traffic stops “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry.” Id. at 330, 129 S.Ct. 781 (quoting Berkemer v. McCarty, 468 U.S. 420, 439 n.29, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). The Court explained that:

Terry established the legitimacy of an investigatory stop “in situations where [the police] may lack probable cause for an arrest.” [392 U.S. at 24, 88 S.Ct. 1868]. When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot ... the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily detained are armed and dangerous. Ibid. Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the patdown reasonable under the Fourth Amendment.

Id. at 330, 129 S.Ct. 781. The Supreme Court held:.

[I]n a traffic-stop setting, the first Terry condition—a lawful investigatory stop— is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the .case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Id. at 327, 129 S.Ct. 781. In reaching this conclusion, the Court reiterated that “traffic stops are ‘especially fraught with danger to police officers,’” but the risk of harm to both the police and the vehicle occupants is minimized if “‘the officers routinely exercise unquestioned command of the situation.’ ” Id. at 330, 129 S.Ct. 781 (quoting Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Maryland v. Wilson, 519 U.S. at 414, 117 S.Ct. 882). The Supreme Court then traced its precedent—first Mimms, then Maryland v. Wilson, then Brendlin— to conclude that a vehicle driver or any passenger may be subjected to a patdown when there is reasonable suspicion to believe he is armed and dangerous. Id at 331-32, 129 S.Ct. 781.

The Supreme Court disagreed with the conclusion of the Arizona Court of Appeals that, although Johnson was lawfully detained incident to the legitimate traffic stop, once the officer began to question him on matters unrelated to the stop, the authority to conduct a frisk ceased in the absence of reasonable suspicion that Johnson was engaged in, or about to engage in, criminal activity. Id. at 332, 129 S.Ct. 781. The Supreme Court explained:

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See Brendlin, 551 U.S. at 258, 127 S.Ct. 2400. An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.
In sum, as stated in Brendlin, a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Officer Trevizo surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.

Id. at 333-34, 129 S.Ct. 781 (some citations omitted).

Lastly, in Rodriguez, the Supreme Court articulated a limitation on traffic-stop detentions. There, a K-9 officer observed a vehicle veer onto the shoulder of a road and then jerk back onto the road. 135 S.Ct. at 1612. After running a records check on the driver, Rodriguez, the officer requested the license of the passenger. Id. at 1613. The officer returned to his vehicle a second time to run a records check on the passenger and, at that time, he requested a second officer. Id. The officer issued a written warning to Rodriguez and returned to both men their documents. Id. The officer admitted that he had “got all the reason[s] for the stop out of the way.” Id. Nonetheless, the officer required the men to wait until the second officer arrived. Id, At that time, the officer who pulled the men over led his dog around the vehicle, and the dog alerted to the presence of drugs. Id. A search of the vehicle revealed methamphetamine. Id.

After being indicted in federal court, Rodriguez moved to suppress the evidence on the ground that the officer who initiated the stop prolonged it without reasonable suspicion in order to conduct the dog sniff. Id. The Supreme Court agreed, explaining:

Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.” Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been— completed.

Id. at 1614 (citations omitted). Consistent with Johnson, the Supreme Court stated:

The seizure remains lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Id. at 1615 (citations omitted). According to the Supreme Court, the officer’s mission includes ordinary inquiries incident to the traffic stop—such as checking the driver license, checking for outstanding warrants against the driver, and inspecting the vehicle’s registration and proof of insurance, all of which serve the same goal as enforcing the traffic code: “ensuring that vehicles on the road are operated safely and responsibly.” Id.

The Supreme Court then distinguished the dog sniff as a measure directed at detecting evidence of criminal wrongdoing—something which is not an ordinary incident of a traffic stop, or part of the officer’s traffic mission. Id. The Supreme Court elaborated:

Unlike a general interest in criminal enforcement, however, the government’s officer safety interest stems from the mission of the stop itself. Traffic stops are “especially fraught with danger to police officers,” Johnson, 555 U.S. at 330, 129 S.Ct. 781 (internal quotation marks omitted), so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely. On-scene investigation into other crimes, however, detours from that mission. So too do safety precautions taken in order to facilitate such detours. Thus, even assuming that the imposition here was no more intrusive than the exit order in Mimms, the dog sniff could not be justified on the same basis. Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular..

Id. at 1616 (citations omitted).

Analysis

The evolution of these cases—primarily the statements in Brendlin, 551 U.S. at 258, 127 S.Ct. 2400, that “[i]t is ... reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety,” and in Johnson, 555 U.S. at 333, 129 S.Ct. 781, that “[t]he temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop” (emphasis added)— demonstrates that the Presley and Aguiar courts correctly held that law-enforcement officers may prevent passengers from leaving a traffic stop, as a matter of course, without violating the Fourth Amendment. In Johnson, the Supreme Court reiterated that the “weighty interest in officer safety” applies regardless of whether the occupant of the- vehicle is a driver or a passenger, and the motivation of a passenger to employ violence to prevent apprehension for a more serious crime “is every bit as great as that of the driver.” 566 U;S. at 331-32, 129 S.Ct. 781 (quoting Maryland v. Wilson, 519 U.S. at 413-14, 117 S.Ct. 882). The Supreme Court also explained that because the passenger is already stopped, the “additional intrusión on the passenger is minimal.” Id. at 332, 129 S.Ct. 781 (quoting Maryland v. Wilson, 519 U.S. at 415, 117 S.Ct. 882).

As previously discussed, both the First and Fifth Districts concluded that, even if asking a passenger to remain at the scene is more burdensome than merely asking the passenger to exit the vehicle, the intrusion upon personal liberty is de minimis because (1) the method of transport has already been lawfully interrupted by virtue of the stop, (2) the passenger has already been stopped by virtue of the driver’s lawful-detention, and (3) routine traffic stops are brief in duration. Presley, 204 So.3d at 88 (quoting Aguiar, 199 So.3d at 926). This conclusion is consistent with the evolution of Supreme Court precedent and the common thread that runs through these cases—the “legitimate and weighty interest” in officer safety during a traffic, stop outweighs the-intrusion upon a passenger’s liberty interest and permits an officer to exercise “unquestioned command of the situation.” Johnson, 555 US. at 330-31, 129 S.Ct. 781 (quoting Mimms, 434 U.S. at 110, 98 S.Ct. 330; Maryland v. Wilson, 519 U.S. at 414, 117 S.Ct. 882).

As reflected by Rodriguez, however, the length of detention during a traffic stop is not subject to' the unfettered discretion of. law enforcement. Instead, “[b]ecause addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate tli[at] purpose,” and the “[authority for the seizure ... ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Rodriguez, 135 S.Ct. at 1614 (internal citations and quotation marks omitted). Therefore, law enforcement officers may detain passengers only for the reasonable duration of a traffic stop. See id. (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), for the proposition that “in determining the reasonable duration of a stop, ‘it [is] appropriate to examine whether the police diligently pursued [the] investigation’”). During a routine traffic stop, this is the length of time necessary for law enforcement to check the driver license, the vehicle registration, and the proof of insurance; to determine whether there are outstanding warrants; to write any citation or warning; to return the documents; and to issue the warning or citation. At that time, and in the absence of reasonable suspicion that a passenger is engaged in criminal activity, “the police have no further need to control the scene,” Johnson, 555 U.S. at 333, 129 S.Ct. 781, and the passenger must be allowed to depart. Detention is permissible for this limited period of time because it allows law enforcement officers to safely do their job—accomplishing the “mission” of the stop—and not be at risk due to potential violence from passengers or other vehicles on the roadway.

The Present Case .

Despite our previous explanation as to what constitutes a reasonable period of time to detain passengers during a routine traffic stop, the facts of this case present a situation that was anything but routine. Instead, a stop that was initiated for basic traffic violations quickly evolved into a struggle between a law enforcement officer and a passenger who had attempted to leave, requiring that officer to call for backup. Therefore, in determining whether the detention of Presley was constitutional, we must evaluate under the specific facts of this case whether the duration of the traffic stop was reasonable, such that the “mission” of the stop—“to address the traffic violation that warranted the stop and attend to related safety concerns”— could be completed. Rodriguez, 135 S.Ct. at 1614 (citations omitted).

Here, the traffic stop commenced when Officer Jallad pulled the vehicle over for a faulty taillight and a stop sign violation. It is not clear from the record how much time elapsed between the stop and the arrival of Officers Pandak and Meurer in response to the request for assistance. However, the circuit court found that from the time Officers Pandak and Meurer arrived, to the time they were notified that Presley was on probation, thereby providing probable cause for Presley’s arrest, “only a matter of minutes had passed.” This conclusion is supported by competent, substantial evidence. See Twilegar, 42 So.3d at 192. Further, although this traffic stop may have lasted longer than a routine,. uneventful stop, it was prolonged not by law enforcement, but by the. fact that one of the passengers exited the vehicle and attempted to leave. Therefore, instead of being able to address the traffic violations immediately, Officer Jallad first needed to secure that passenger, who was belligerent and had to be placed in handcuffs. For Officer Jallad to “complete his mission safely,” Rodriguez, 135 S.Ct. at 1616, we conclude the detention was reasonably extended in order for backup officers to arrive and assist with the driver and Presley. Nothing in the record suggests that the duration of this traffic stop was unreasonable and, accordingly, we hold that the seizure of Presley did pot violate the Fourth Amendment.

CONCLUSION

Based upon the foregoing, we approve both the decision below and Aguiar. We hold that, as a matter of course, law enforcement officers may detain a vehicle’s passengers for the reasonable duration of a traffic stop without violating the Fourth Amendment. We disapprove of the Fourth District’s decision in Wilson v. State, and any cases that rely upon Wilson v. State for the proposition that law enforcement officers under the Fourth Amendment are precluded from detaining passengers for the reasonable duration of a traffic stop.

It is so ordered.

PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs with an opinion.

PARIENTE, J.,

concurring.

' This Court is bound by the precedent of the United States Supreme Court when interpreting the Fourth Amendment to the United States Constitution. See art. I, § 12, Fla. Const. Consistent with that precedent, the majority is correct that “as a matter of course, law enforcement officers may detain a vehicle’s passengers for the reasonable duration of a traffic stop without violating the Fourth Amendment.” Majority op. at 107. In this case, the defendant does not challenge the reasonableness of the duration of the traffic stop, and I agree with the majority that “under the specific facts of this case,” the stop was reasonable when “it was prolonged not by law enforcement, but by the fact that one of the passengers” was belligerent and had to be secured. Majority op. at 107.

I also fully appreciate that officer safety is a reason the United States Supreme Court has concluded “that the Fourth Amendment permits law enforcement officers to order passengers out of a vehicle.” Majority op. at 101. However, when the traffic stop does not give rise to a need to question passengers or ask for their identification, I fail to comprehend why the interrogation of passengers on matters unrelated to the traffic stop, “so long as those inquiries do not measurably extend the duration of the stop,” does not intrude on the constitutional guarantee to be free from unreasonable searches and seizures. Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

In this case, similar to the conflict case, Aguiar v. State, 199 So.3d 920 (Fla. 5th DCA 2016), the traffic stop was for a faulty taillight and running a stop sign. See id. at 922 (explaining that the defendant “was the front-seat passenger in a vehicle being stopped because a brake light was out and the driver was not wearing a seat belt”). Presley, who is black, was a passenger in a car driven in the early morning hours in a neighborhood in Gainesville, Florida, that one of the responding police officers described as a “high-crime, high-drug area.” One of the other passengers in the car lived in a house in the neighborhood. The stop was certainly justifiable based on the traffic violations, but there was no reasonable suspicion to otherwise justify the continued interrogation. Yet, the officer attempted to justify the detention of the passengers of the stopped car based on the following:

[T]he totality of circumstances ... late at night, one person already left the— left the car, which was suspicious in and of itself, high-crime, high-drug area, numerous other people walking around, officer safety ... for me to feel comfortable with this person leaving a potential crime scene and getting away with something, and/or destroying evidence, or coming back to harm me and my fellow officers. So yes, he was not free to leave.'

Because under the Fourth Amendment it does not matter whether the traffic stop was pretextual, see Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), I fear that Johnson and other recent Fourth Amendment decisions of the United States Supreme Court, which condone the detention and questioning of passengers for reasons entirely unrelated to the traffic stop so long as the questioning occurs under the auspices of a “reasonably” long traffic stop, will lead to the erosion of the guarantees afforded by the Fourth Amendment to those citizens who visit and live in neighborhoods some may describe as “high-crime,” or otherwise suspicious. See majority op. at 108-09 (discussing Johnson, Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), and Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)). Indeed, as this case and Aguiar demonstrate, passengers need be wary of the risk of detention when choosing whether to ride in a car. with a faulty taillight.

As Justice Sotomayor has eloquently explained, it is a real concern that these expanded rules regarding lawful seizures will adversely impact minorities:

This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
As the Justice Department notes, ... many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gott-schalk, Caught 119-138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95-136 (2010). For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W.E.B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guilder & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Utah v. Strieff, — U.S. —, 136 S.Ct. 2056, 2069-71, 195 L.Ed.2d 400 (2016) (Sotomayor, J., dissenting) (citation omitted).

In this case, the majority announces a bright-line rule for cases involving a routine traffic stop but then explains how the facts of this case were anything but routine. See majority op. at 107. Regardless, I agree that “under the specific facts of this case,” id. at 108, the length of the traffic stop was reasonable, and subsequent United States Supreme Court precedent requires that we disapprove of Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999). Because we are bound to follow the United States Supreme Court precedent “on search and seizure issues,” I concur but I would hot announce a bright-line rule.

      . In reaching this holding, we expressly decline to address whether law enforcement may detain passengers during a traffic stop of a common carrier or a vehicle that, at the time of the stop, is being utilized as part of a transportation-based business.

      . Officer Meurer could smell alcohol on Presley, and he heard Presley say he had been "drinking all day.”

      . The Supreme Court also noted "[t]he hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations.” Id. at 111, 98 S.Ct. 330. Therefore, an officer "prudently may prefer to ask the driver to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.” Id.

      . The State of California conceded the police did not have reasonable suspicion to justify a traffic stop on this basis. Id. at 253 n.2, 127 S.Ct. 2400.

      . The Supreme Court rejected the State of California's contention that, under this holding, "all taxi cab and bus passengers would be 'seized' under the Fourth Amendment when the cab or bus driver is pulled over by the police for running a red light.” 551 U.S. at 262 n.6, 127 S.Ct. 2400. The Supreme Court explained:
      [T]he relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly. In those cases, as here, the crucial question would be whether a reasonable. person in the passenger's position would feel free to take steps to terminate the encounter.
      Id.

      . The Supreme Court has further explained:
      Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.
      United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (citation and quotation marks omitted).

      . Presley does not challenge the bases asserted by Officer Jallad for the initiation of the traffic stop.


source: Caselaw Access Project

author: PER CURIAM. LAWSON, J.,

license: Public Domain

text:
    Noel DOORBAL, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-349
    Supreme Court of Florida.
    [September 20, 2017]
    Maria del Carmen Calzón of Offices of Maria del Carmen Calzón, P.A., Coral Gables, Florida, for Petitioner
    Pamela Jo-Bondi, Attorney General, Tallahassee, Florida; ■ and Melissa Roca, Assistant Attorney General, Miami, Florida, for Respondent
   PER CURIAM.

This case is before the Court on the petition of Noel Doorbal for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. .

FACTS

We previously detailed the gruesome and intricate facts surrounding Doorbal’s crimes on his direct appeal. Doorbal v. State, 837 So.2d 940, 944-52 (Fla. 2003). Relevant here, Doorbal was convicted and sentenced to death for the first-degree murders of Frank Griga and Krisztina Furton. Id. at 951. A jury recommended a sentence of. death by a vote of eight to four, and the trial court sentenced Doorbal to death for both murders. Id.,

In his sentencing order, the trial judge found a total of six aggravators: that Doorbal had been convicted of a prior violent felony;- that the murders were committed to avoid arrest, for pecuniary gain, and in the course of a kidnapping; and that they were cold, calculated, and premeditated (CCP), and heinous, atrocious, or cruel (HAC). All but HAC applied to both murders. The court found that the HAC aggravating factor applied to the Furton murder only. Each aggra-vator was accorded great weight. The trial judge did not find any statutory mitigators, but did find six nonstatutory mitigators: that Doorbal had a difficult childhood* was a hard-working and loyal employee, was a loyal friend and positive influence on others, had religious devotion and the ability to help others with religious beliefs, exhibited appropriate courtroom behavior, and that life imprisonment-would remove the menace to society. Each nonstatutory mitigator was accorded little weight.

Id. at 951-52.

On direct appeal, we affirmed Doorbal’s convictions and sentences. Id. at 963. The United States Supreme Court denied cer-tiorari review on June 27, 2003. Doorbal v. Florida, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003).

ANALYSIS

We conclude that the appropriate action is to grant Doorbal’s petition, vacate his sentence, and remand for a new penalty phase. Here, the jury recommended death by a vote of eight to four. Thus, Doorbal’s death sentence violated the central holding in Hurst v. State: all critical findings for the imposition of death must be found unanimously by the jury. Hurst v. State, 202 So.3d 40, 44 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

In Mosley v. State, we held that Hurst applies retroactively to those postconviction defendants whose sentences became final after the United States Supreme Court’s June 24, 2002, decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016). Doorbal’s convictions became final on June 27, 2003. Doorbal, 539 U.S. 962, 123 S.Ct. 2647. Thus, Doorbal falls within the category of defendants to whom Hurst is applicable. See Hertz v. Jones, 218 So.3d 428 (Fla. 2017); Hernandez v. Jones, 217 So.3d 1032 (Fla. 2017); Card v. Jones, 219 So.3d 47 (Fla. 2017).

Accordingly, the issue is then whether any error that occurred during the penalty phase was harmless beyond a reasonable doubt. Although three aggravating factors were necessarily found by a unanimous vote of the jury—(1) conviction of a prior violent felony; (2) the capital felony was committed while Doorbal was engaged in the commission of a kidnapping; and (3) the capital felony was committed for pecuniary gain—whether these aggravating circumstances were “sufficient” to qualify Doorbal for the death penalty would also be a jury determination. Because the jury vote was eight to four, there is no way of knowing if such a finding was unanimous. Moreover, there is no way of knowing if the jury found any of the other aggravating circumstances unanimously, or if any aggravators that were unanimously found were also unanimously found to outweigh the mitigation, which is necessary for imposing the death penalty. Hurst, 202 So.3d at 68; Deviney v. State, 213 So.3d 794, 800 (Fla. 2017).

In sum, any attempt to determine what findings were made by the jurors who voted for life and the jurors who voted for death would amount to speculation and cannot rise to the level of proof beyond a reasonable doubt, Accordingly, the error in this case cannot be considered harmless. Thus, we grant the petition for a writ of habeas corpus, vacate Doorbal’s death sentence, and remand for a new penalty phase proceeding. See Hertz, 218 So.3d 428; Hernandez, 217 So.3d 1032; Card, 219 So.3d 47.

CONCLUSION

Based on the foregoing, we grant the petition for a writ of habeas corpus, vacate Doorbal’s sentence, and remand for a new penalty phase proceeding consistent with Hurst.,

It is so ordered.

LABARGA, C.J, and PARIENTE, LEWIS, and QUINCE, JJ., concur.

LAWSON, J., concurs specially with an opinion.

CANADY and POLSTON, JJ., dissent.

LAWSON, J.,

specially concurring.

See Okafor v. State, 225 So.3d 768, 775-76, 2017 WL 2481266, at *6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

      . Two of the non-automatic aggravators— HAC and CCP—are among the weightiest in Florida. Jackson v. State, 18 So.3d 1016, 1035 (Fla. 2009).


author:
PER CURIAM.
      . PARIENTE, J.,

text:
    Cary Michael LAMBRIX, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1687
    Supreme Court of Florida.
    [September 29, 2017]
    Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, Martin J. McClain, Special Assistant Capital Collateral Regional Counsel, and Bryan E. Martinez, Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Scott A. Browne, Senior Assistant Attorney General, and C. Suzanne Bechard, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

On September 1, 2017, when Governor Scott rescheduled Lambrix’s execution for October 5, 2017, Lambrix’s eighth successive postconviction motion was pending in the circuit court. The gist of Lambrix’s motion was an attack on the constitutionality of his death sentences based on the jury’s nonunanimous recommendations for death. On September 5, 2017, the circuit court denied Lambrix’s motion. On September 20, 2017, the circuit court denied Lambrix’s motion for rehearing. In light of the pending execution date, we expedited the appeal. Based on our precedent, we affirm the circuit court’s denial of Lam-brix’s eighth successive postconviction motion.

Lambrix challenges the constitutionality of his sentences of death, which were imposed following the jury’s nonunanimous recommendations for death. Specifically, Lambrix claims a right to relief based on the United States Supreme Court’s decision in Hurst v. Florida, — U.S.—, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court’s opinions in Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), and Perry v. State, 210 So.3d 630 (Fla. 2016). He argues on appeal that: (1) his sentences of death are unconstitutional under chapter 2017-1, Laws of Florida, which requires a unanimous jury recommendation for death; (2) his former claims of newly discovered evidence must be reconsidered in light of Hurst v. Florida and Hurst; (3) his death sentences violate the Eighth Amendment; and (4) this Court’s decisions regarding the retroactivity of Hurst v. Florida and Hurst violate equal protection.

While it is true that the jury nonunani-mously recommended death for the 1983 murders of the two victims, Lambrix’s sentences were final in 1986. See Lambrix v. State, 217 So.3d 977, 989 (Fla.), petition for cert. filed, No. 17-5539 (U.S. Aug. 9, 2017). In this Court’s 2017 opinion in Lambrix’s case, we held that Lambrix “is not entitled to relief based on Hurst” for the reasons set forth in our opinion in Asay v. State (Asay V), 210 So.3d 1 (Fla. 2016), cert. denied, No. 16-9033, — U.S. —, 138 S.Ct. 41, 198 L.Ed.2d 769, 2017 WL 1807588 (U.S. Aug. 24, 2017). Lambrix, 217 So.3d at 989.

To the extent Lambrix now raises additional claims to relief based on the rights announced in Hurst and Perry—including arguments based on the Eighth Amendment to the United States Constitution, denial of due process and equal protection based on the arbitrariness of this Court’s retroactivity decisions in Asay V and Mosley v. State, 209 So.3d 1248 (Fla. 2016), and a substantive right based on the legislative passage of chapter 2017-1, Laws of Florida, prospectively requiring unanimous verdicts—we reject these arguments based on our recent opinions in Hitchcock v. State, 226 So.3d 216, 2017 WL 3431500 (Fla. Aug. 10, 2017), and Asay v. State (Asay VI), 224 So.3d 695, 2017 WL 3472836 (Fla. Aug. 14, 2017).

For all the reasons set forth in Lambrix, 217 So.3d 977, Hitchcock, and Asay VI, we affirm the circuit court’s denial of Lambrix’s successive postconviction motion.

It is so ordered. No rehearing will be entertained by this Court. The mandate shall issue immediately.

LABARGA, C.J., and LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., dissents with an opinion.

QUINCE, J., recused.

. PARIENTE, J.,

dissenting.

I dissent: I would grant Lambrix a new penalty phase as a result of the jury’s nonunanimous recommendations for death in Lambrix’s case for the same reasons expressed in my recent dissenting opinions in Hitchcock and Asay VI.

As I stated in my concurring in result opinion in Lambrix v. State, 217 So.3d 977 (Fla.), petition for cert. filed, No. 17-5539 (U.S. Aug. 9, 2017), “I would vacate Lam-brix’s sentences of death and remand for a new penalty phase under Hurst.” Id. at 990 (Pariente, J., concurring in result), But, even if this Court’s opinion in Asay V precludes Lambrix from receiving the benefit of the Sixth Amendment protections announced in Hurst v. Florida and Hurst, I maintain that this Court has not properly determined the retroactivity of the Eighth Amendment rights announced in Hurst. See Hitchcock, 226 So.3d at 219-21, 2017 WL 3431500, at *3-4 (Pariente, J., dissenting).

As I stated in Hitchcock, “[f]or the same reasons I conclude that the right announced in Hurst under the right-to jury trial (Sixth Amendment and article I, section 22, of the Florida Constitution) requires full retroactivity, I would conclude that the right to a unanimous jury recommendation of death announced in Hurst under the Eighth Amendment requires full retroactivity.” Id. at 220, 2017 WL 3431500, at *4. “Reliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable.” Id..at 220, 2017 WL 3431500, at *3. - The statute under'which Lambrix was sentenced, which only required that a bare majority of the twelve-member jury recommend a sentence of death, was unconstitutional, and therefore unreliable, under both the Sixth and Eighth Amendments.

Like other defendants whose attorneys had the foresight to challenge Florida’s capital sentencing scheme years before Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Lambrix— through his attorneys—challenged the constitutionality , of Florida’s, capital sentencing statute by raising arguments almost verbatim to those that were validated by the United States Supreme Court over thirty years later in Hurst v. Florida. In a pretrial Motion to Dismiss the Indictment, Lambrix argued:

•Death sentences in Florida are imposed irregularly, unpredictably, and whimsically in cases which are no more deserving of capital punishment, under any rational standard that considers the character of the offender and the offense, than many other cases in which sentences of imprisonment are imposed. Inconsistent and arbitrary jury attitudes and sentencing verdicts, uneven arid inconsistent prosecutorial practices in seeking or not seeking the death penalty, divergent sentencing policies of trial judges and erratic appellate review by the Supreme Court of Florida all contribute to produce an irregular and freakish pattern of life or death sentencing results.

Motion to Dismiss the Indictment, State v. Lambrix, Case No. 83-12, at ¶ 13. Indeed, Lambrix’s attorneys made every argument they could to. justify retroactive application of Hurst to Lambrix’s case long before Hurst was ever decided. See Lambrix, 217 So.3d at 990 (Pariente, J., concurring in result).

Denying Lambrix “relief when other similarly situated defendants have been granted relief amounts to a denial of due process.” Hitchcock, 226 So.3d at 220, 2017 WL 3431500, at *3 (Pariente, J., dissenting). To avoid denying two of the most critical constitutional protections on the eve of the ultimate punishment, I would grant Lambrix a new penalty phase.

Accordingly, I dissent.

      . The jury recommended a sentence of death for the murder of Aleisha Bryant by a vote of 10-2 and death for the murder of Clarence Moore, a/k/a Lawrence Lamberson, by a vote of 8-4.

      . Hitchcock v. State, 226 So.3d 216, 219-21, 2017 WL 3431500, *3-4 (Fla. Aug. 10, 2017) (Pariente, J., dissenting).

      . Asay v. State (Asay VI), 224 So.3d 695, 704-03, 2017 WL 3472836, *8 (Fla. Aug. 14, 2017) (Pariente, J., dissenting).

      . Asay v. State (Asay V), 210 So,3d 1 (Fla. 2016), cert. denied, No. 16-9033, — U.S. —, — S.Ct. —, — L.Ed.2d—, 2017 WL 1807588 ,(U.S. Aug. 24, 2017).

      .See, e.g., Gaskin v. State, 218 So.3d 399, 401-02 (Fla.), petition for cert. filed, No. 17-5669 (U.S. Aug. 21, 2017) (Pariente, J., concurring in part and dissenting in part).

      . See Mosley v. State, 209 So.3d 1248 (Fla, 2016); Asay V, 210 So.3d at 30 (Lewis, J., concurring in result).


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE—2017 REGULAR—CYCLE REPORT.
    No. SC17-91
    Supreme Court of Florida.
    [October 5, 2017]
    Robert Joseph Merlin, Chair, Family Law Rules Committee, Coral Gables, Florida, and Honorable Laurel Moore Lee, Past .Chair, Family Law Rules Committee, Plant City, Florida; and John F. Harkness, Jr., Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida, for. Petitioner
    Judge Christine Greider, Chair, Steering Committee on Families and Children in the Court, Naples, Florida, Responding with comments
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Family Law Rules of Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Family- Law Rules Committee (Committee) has filed its regular-cycle report of proposed rule and form amendments. See Fla. R. Jud. Admin. 2.140(b). The Committee proposes amendments to rules 12.130 (Documents Supporting Action or Defense); 12,200 (Case Management and Pretrial Conferences); 12.400 (Confidentiality of Records and Proceedings); 12.407 (Testimony and Attendance of Minor Child); 12.490 (General Magistrates); and form 12.902(f)(3) (Marital Settlement Agreement for Simplified Dissolution of Marriage). The Committee also proposes new Florida Family Law Rule of Procedure 12,4501 (Judicial Notice). The Board of Governors of The Florida Bar unanimously approved the proposals. Prior to submission to the Court, the Committee published its proposals for comment. Several comments were received in opposition to a proposed amendment to Florida Family Law Rule of Procedure 12.285 (Mandatory Disclosure). As a result, the Committee did not include that proposal in its report. After submission to the Court, the proposals were again published for comment. No comments were received.

Upon consideration of the Committee’s Report, we adopt amendments to the Florida Family Law Rules of Procedure and forms,, with certain exceptions, as described below.

AMENDMENTS

Rule 12.130 (Documents Supporting Action or Defense) is amended to remove specific references to certain types of documents—bonds, notes, bills of exchange, contracts; and accounts—and simply require that documents or a copy thereof that are essential to state a cause of action or that are otherwise required by law be incorporated or attached to pleadings.

Rule 12.200 (Case Management and Pretrial Conferences) is amended to make case management conferences optional rather than mandatory in adoption proceedings. Although we recognize that this rule was specifically amended in 1998 to make the use of case management conferences in adoption proceedings mandatory, see In re Amends, to Fla. Family Law Rules, 713 So.2d 1, 8 (Fla. 1998), the Committee represents that the current practice in adoption proceedings is that case management conferences are considered optional, and we agree that given current statutory provisions pertaining to adoption, mandatory case management conferences are no longer necessary.

A new subdivision (b) is added to rule 12.400 (Confidentiality of Records and Proceedings) stating that all documents containing sensitive information must be filed in conformity with Florida Rule of Judicial Administration 2.425 (Minimization of the Filing of Sensitive Information). This amendment is meant to raise awareness of this requirement.

The Committee proposes several amendments to rule 12.407 (Testimony and Attendance of Minor Child). In its report, the Committee states that the amendments are intended to strengthen protections for minor children from the stresses of court. The proposed amendments would prohibit a child from being deposed, brought to a deposition, or brought to “the court,” even to appear as a witness or to attend any hearing, or subpoenaed to appear at any hearing without prior order of the court based on good cause shown, would eliminate the existing exception to this rule for emergency situations, and , would permit the court to impose sanctions for a violation of the rule. Due to concerns that the wording of these amendments might produce the unintended consequences of (1) prohibiting children from entering a courthouse building, and (2) directly conflicting with certain provisions of Florida Rule of Juvenile Procedure 8.255, especially in the context of Unified Family Court proceedings, we decline to adopt them. Additionally, we refer these issues back to the Family Law Rules Committee, the Steering Committee on Children and Families in the Court, and the Juvenile Court Rules Committee for further joint consideration.

New rule 12.4501 (Judicial Notice) is adopted to reflect the provisions of section 90.204(4), Florida Statutes (2016), pertaining to the taking of judicial notice in family cases. Section 90.204(4) provides that in family cases judges may take judicial notice of certain court records without prior notice to the parties when imminent danger to persons or property has been alleged and it is impractical to give prior notice. The statute also requires that after a court takes judicial notice in this manner, it must give notice and provide the parties with an “opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.” § 90.204(1), Fla. Stat. (2016). The new rule reflects the provisions of this statute.

Subdivision (d)(2) of rule 12.490 (General Magistrates) is amended to correct a cross-reference to Florida Rule of Judicial Administration 2.535.

Form 12.902(f)(3) (Marital Settlement Agreement for Simplified Dissolution of Marriage) is amended to delete language in the form requiring the filing of a Family Law Financial Affidavit because in a simplified dissolution of marriage proceeding such is not required. See Fla. Fam. L. R. P. 12.285(c). The form is also amended to delete language stating that litigants do not need to list account numbers and replace it with language directing that the last four digits of an account number be provided. See Fla. R. Jud. Admin. 2.425.

CONCLUSION

Accordingly, the Florida Family Law Rules of Procedure and forms are amended as set forth in the appendix to this opinion. Language added to the rules is underscored; deleted language is struck through.

The amended form is fully engrossed and ready for use. The form may also be accessed and downloaded from the Florida State Courts’ website at http://www. flcourts.org/resources-and-services/court-improvement/familycourts/family-law-forms.stml. By adoption of the amended form, we express no opinion as to its correctness or applicability.

The amended and new rules and the amended form shall become effective at 12:01 a.m., January 1,2018.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

Attachment

APPENDIX

RULE 12.130. DOCUMENTS SUPPORTING ACTION OR DEFENSE

(a) Documents Attached. If it is essential to state a cause of action, or otherwise required by law, a copy of the bonds, notes, bills of exchange,. contracts,.ac-otherwise required, or the relevant portions of the documents shallmust be incorporated in or attached to the pleadings.

(b) Part for All Purposes. Any exhibit attached to a pleading shallmust be considered part of the pleading. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion.

. (c) Protection of Account and Personal Identifying Numbers. Any reference in . any pleading or exhibit filed with the court to account numbers, social security numbers, employee identification numbers, driver’s license numbers, passport numbers, or other personal identifying information shallmust be presented as provided in Florida Rule of Judicial Administration 2.425.

RULE 12.200. CASE MANAGEMENT AND PRETRIAL CONFERENCES

(a) Case Management Conference.

(1) [no change]

(2) Adoption Proceedings. A case management conference sfaaümay be ordered by the court within 60 days of the filing of a petition when:

(A) there is a request for a waiver of consent to a termination of parental rights of any person required to consent by section 63.062, Florida Statutes;

(B) notice of the hearing on the petition to terminate parental rights pending adoption is not being afforded a person whose consent is required but who has not consented;

(C) there is an objection to venue, which was made after the waiver of venue was signed;

(D) an intermediary, attorney, or agency is seeking fees, costs, or other expenses in excess of those provided under section 63.097 or 63.212(5), Florida Statutes; •

(E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or

'(F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending adoption.

(b) Pretrial Conference. After the action is at issue the court itself may or shallmust on the timely motion of any party require the parties to appear for a conference to consider and determine:

(1) proposed stipulations and the simplification of the issues;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents that will ■avoid unnecessary proof;

(4) the limitation of the number of expert witnesses; and

(5) any matters permitted under subdivision (a)of-this-rule.

(c) Notice. Reasonable notice shall-must-be—given—for- a- case management conference, and 20 days’ notice shallmust be' given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference shallmust be specified in the order. Orders setting pretrial conferences shaU-must be uniform throughout-the-temtor-ial jurisdiction of the court.

(d) Case Management and Pretrial Order. The court shall make an order reciting the action taken at a conference and any stipulations made. The order sfaailwill control the subsequent course of the action unless modified to prevent injustice.

Commentary

[no change]

Committee Note

[no change]

RULE 12.400. CONFIDENTIALITY OF RECORDS AND PROCEEDINGS

(a) [no change]

(b) Filing of Sensitive Information. All documents containing sensitive information must be filed in conformity with Florida Rule of Judicial Administration 2,425.

(c) In Camera Inspections. The court sfeA-must conduct an in camera inspection of any records sought to be sealed and consider the contents of the records in determining whether' they should be sealed.

(ed) Conditional Sealing of Financial Information.

(1) The court has the authority to conditionally seal the financial information required by rule 12.285 if it is likely that access to the information would subject a party to abuse, such as the use of the information, by third parties for purposes unrelated to government or judicial accountability or to first amendment rights. Any such order sealing the financial information is conditional in that the information shallmust be disclosed to any person who establishes that disclosure of the information is necessary for government or judicial accountability or has a proper first amendment right to the information.

(2) Notice of conditional sealing shall be as required by Florida Rule of Judicial Administration 2.420(d).

(3) Upon receipt of a motion to reopen conditionally sealed financial information, the court shallmust schedule a hearing on the motion with notice provided to the movant and parties.

Commentary

[no change]

RULE 12.4501. JUDICIAL NOTICE

In family cases, the court may take judicial notice of any matter described in section 90.202(6), Florida Statutes, when imminent danger to persons or property has been alleged and it is impractical to give prior notice to the parties of the intent to take judicial notice. Opportunity to present evidence relevant to the propriety of taking judicial notice under section 90.204(1), Florida Statutes, may be deferred until after judicial action has been taken. If judicial notice is taken under this rule, the court must, within 2 business days, file a notice in the pending case of the matters judicially noticed. For purposes of this rule, the term “family cases” has the same meaning as provided in the Florida Rules of Judicial Administration.

RULE 12.490. GENERAL MAGISTRATES

(a)General Magistrates. Judges of the circuit court may appoint as many general magistrates from among the members of The Florida Bar in the circuit as the judges find necessary, and the general magistrates shallwill continue in office until removed by the court. The order making-an appointment shallmust be recorded. Every person appointed as a general magistrate shallmust take the oath required of officers by the constitution and the. oath shallmust be recorded before the magistrate discharges any duties of that office.

(b) Reference.

(1)—(2) [no change]

(3) The order of referral shallmust state with specificity the matter or matters being referred and the name of the specific general magistrate to whom the matter is referred. The order of referral shallmust also state whether electronic recording or a court reporter is provided by the court, or whether a court reporter, if desired, must be provided by the litigants-. ’

(4) [no change]

(c) General Powers and Duties. Every general magistrate shall perform all of the duties that pertain to the office according to the practice in chancery and rules of court and. under the direction of the court except those duties related to injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking. A general magistrate shall befe empowered to administer oaths and conduct hearings, which may include the taking of evidence. All grounds for disqualification of a judge shall apply to general magistrates.

(d) Hearings.

(1) The general magistrate shallmust assign a time and place for proceedings as soon as reasonably possible after the reference is made and give notice to each of the parties either directly or by directing counsel to file and serve a notice of hearing, If any party fails to appear, the general magistrate may proceed ex parte or may adjourn the proceeding to a future day, giving notice to the absent party.of the adjournment. The general magistrate shalimust proceed with reasonable diligence in every reference and with the least delay practicable. Any party may apply to the court for an order to the general magistrate to speed the proceedings and to make the report and to certify to the court the reason for any delay.

(2) The general magistrate shalimust take testimony and establish a record which may be by electronic means as provided by Florida Rule of Judicial Administration 2.53S(g)(3)(h)(4) or by a court reporter. The parties may not waive this requirement.

(3) The general magistrate shalb-hav-ehas the authority to examine under oath the parties and all witnesses upon all matters contained in the reference, to require production of all books, documents, writings, vouchers, and other documents applicable to it, and to examine on oath orally all witnesses produced by the parties. The general magistrate may take all actions concerning evidence that can be taken by the circuit court and in the same manner. The general magistrate shall--havehas the same powers as a circuit judge to utilize communications equipment as defined and regulated by Florida Rule of Judicial Administration 2.530.

(4) The notice or order setting the cause for hearing shalimust be in substantial conformity with Florida Family Law Rules of Procedure Form 12.920(c) and shalimust contain the following language in bold type:

SHOULD YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATION MADE BY THE GENERAL MAGISTRATE, YOU MUST FILE EXCEPTIONS IN ACCORDANCE WITH RULE 12.490(f), FLA. FAM. L. R. P. YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT’S REVIEW.

(5)The notice or order setting a matter for hearing shalimust state whether electronic recording or a court reporter is provided by the court. If the court provides electronic recording, the notice shall-must-also state that any party may provide a court reporter at that party’s expense.

(e) General Magistrate’s Report. The general magistrate shalimust file a report that includes findings of fact and conclusions of law, together with recommendations. If a court reporter was present, the report shalimust contain the name and address of the reporter.

(f) Filing Report; Notice; Exceptions. The general magistrate shalimust file the report and recommendations and serve copies on all parties. The parties may file exceptions to the report within 10 days from the time it is served on them. Any party may file cross-exceptions within 5 days from the service of the exceptions, provided, however, that the filing of cross-exceptions shalimust not delay the hearing on the exceptions unless good cause is shown. If no exceptions are filed within that period, the court shalimust take appropriate action on the report. If exceptions are filed, they shalimust be heard on reasonable notice by either party or the court.

(g) Record. For the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, shal-I-must-be-provided-tothe-cour-t-b-y-the^ar^ seeking review if necessary for the court’s review.

(1) The record shallmust consist of the court file, including the transcript of the relevant proceedings before the general magistrate and all depositions and evidence presented to the general magistrate.

(2) The transcript of all relevant proceedings, if any, shallmust be delivered to the judge and provided to all other parties not less than 48 hours before the hearing on exceptions. If less than a full transcript of the proceedings taken before the general magistrate is ordered prepared by the excepting party, that party shallmust promptly file a notice setting forth the portions of the transcript that have been ordered. The responding parties shallmust be permitted to designate any additional portions of the transcript necessary to the adjudication of the issues raised in the exceptions or cross-exceptions.

(3) The cost of the original and all copies of the transcript of the proceedings shall-beis borne initially by the party seeking review, subject to appropriate assessment of suit monies. Should any portion of the transcript be required as a result of a designation filed by the responding party, the party making the designation shall-bearg-the initial cost of the additional transcript.

Commentary

[no change]

Committee Notes

[no change]

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.902(f)(3)

MARITAL SETTLEMENT AGREEMENT FOR SIMPLIFIED DISSOLUTION OF MARRIAGE (10/17)

When should this form be used?

This form should be used when a Petition for Simplified Dissolution of Marriage, Florida Family Law Rules of Procedure Form 12.901(a), has been filed and the parties have reached an agreement on all of the issues at hand.

This form should be typed or printed in black ink. Both parties must sign the agreement and have their signatures witnessed by a notary public or deputy clerk. After completing this form, you should file the original with the clerk of the circuit court in the county where the petition was filed and keep a copy for your records. You should then refer to the instructions for your petition, answer, or answer and counterpetition concerning the procedures for setting a hearing or trial (final hearing).

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see chapter 61, Florida Statutes, and the instructions for the petition which was filed in this case.

Special notes...

This form does not act to transfer title to the property. Such transfer must be done by deed or supplemental final judgment.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

1. We were married to each other on {date}_]_]_.

2. Because of Irreconcilable differences In our marriage (no chance of staying together), we have made this agreement to settle once and for all what we owe to each other and what we can expect to receive from each other. Each of us states that nothing has been held back, that we have honestly Included everything we could think of In listing our assets (everything we own and that is owed to us) and our debts (everything we owe), and that we believe the other has been open and honest In writing this agreement.

3. Each of us agrees to execute and exchange any documents that might be needed to complete this agreement, Including deeds, title certificates, etc.

SECTION I. MARITAL ASSETS AND LIABILITIES

A. Division of Assets. We divide our assets (everything we own and that Is owed to us) as follows: Any personal item(s) not listed below Is the property of the party currently in possession of the item(s).

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17) ' .

1. Wife shall receive as her own and Husband shall have no further rights or responsibilities regarding these assets:

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement forSimplified Dissolution of Marriage (10/17)

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

2. Husband shall receive as his own and Wife shall have no further rights or responsibilities regarding these assets:

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

B. Division of Liabilities/Debts. We divide our liabilities (everything we owe) as follows:

1. Wife shall pay as her own the following and will not at any time ask Husband to pay these debts/bills:

2. Husband shall payas his own the following and will not at anytime ask Wife to pay these debts/bills:

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

C. Contingent Assets and Liabilities (listed in Section III of our Family Law Financial Affidavits) will be divided as follows:

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

SECTION II. SPOUSAL SUPPORT (ALIMONY) Each of us forever gives up any right to spousal support (alimony) that we may have.

SECTION III. OTHER

I certify that I have been open and honest in entering into this settlement agreement. I am satisfied with this agreement and intend to be bound by it.

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

Florida Family Law Rules of Procedure Form 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage (10/17)

      . Other minor and editorial amendments are also made.

      . We decline to include the proposed Committee Note to rule 12.200.


author: Kuntz, J.

text:
    N.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-0514
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Mark J. Hamel and Matthew Steven Ocksrider, Assistant Attorney Generals, West Palm Beach, for appellee.
   Kuntz, J.

The Child appeals the court’s final judgment withholding adjudication of delinquency. On appeal, the Child argues the court erred in its conclusion that his initial encounter with the arresting officer was consensual and, therefore, erred in issuing the resulting order denying his motion to suppress. We agree that the initial encounter between the officer and the Child was not consensual and, further, that the record lacked any evidence which would have given the officer reasonable suspicion to stop the Child. Therefore, we reverse and remand with instructions to grant the motion to suppress.

Background

A detective responded to a call regarding a suspicious vehicle around 'apartments. Upon arriving in the area, the detective heard voices coming from the adjacent city park and, given the time of day—9:00 pm—he decided to investigate. He saw a group of people walk away as he approached, and requested a fellow officer to assist.

When the officer arrived, he instructed the group to stop but only the Child complied. The officer testified that “upon his arrival ... he stopped the Child ... as he was exiting the park area of the apartment complex.” After a discussion, the officer patted down the Child and discovered a bag of marijuana in his pocket.

The Child moved to suppress this evidence, arguing that the officer lacked the legal authority to detain him. He argued the evidence was found as a result of a detention without probable cause or other legal basis. Therefore, he argued it must be suppressed.

The trial court denied the motion, finding the initial encounter between the officer and the Child to be consensual, and that the officer’s testimony was clear. Based upon the denial of the motion to suppress, the Child entered a plea of no contest, expressly reserving his right to appeal.

Analysis

We review a court’s ruling on a motion to suppress under a mixed standard of review, deferring to the court for its findings of fact, and reviewing conclusions of law de novo. Porter v. State, 765 So.2d 76, 77 (Fla. 4th DCA 2000) (en banc).

Ultimately, the issue in this case is whether the Child ’was entitled to the protections afforded by the Fourth Amendment to the United States Constitution in the initial interaction with the officer and, if so, whether the Fourth Amendment was violated. To determine whether the Fourth Amendment is implicated, we must determine the type of encounter at issue.

The Florida Supreme Court has identified three levels of police-citizen encounters: (1) consensual encounters; (2) investigatory stops; and (3) arrests. Popple v. State, 626 So.2d 185, 186-87 (Fla. 1993). A consensual encounter does not implicate the Fourth Amendment because the citizen is free to leave at any time. Id.; United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, “the Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles, that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted); see also Popple, 626 So.2d at 187.

In this case, the court found the encounter to be consensual. However, the officer’s testimony indicates he told the Child to “stop” as a command and not as a request. The officer also testified that, immediately upon stopping him, he “made it clear” to the Child that he “wasn’t free to leave.” This testimony demonstrates that the Child did not voluntarily consent to the stop but, instead, responded to a command from law enforcement.

The State also-offers an alternate theory and argues that, because all of the Child’s purported friends freely and voluntarily walked away when the officer approached, a reasonable person would have felt free to leave. In other words, the State argues that the encounter .was consensual, and the Child is not entitled to the protections of the Fourth Amendment, because he chose to stay and obey the commands of a uniformed officer.

• The-officer’s testimony, however, refutes this argument. The officer testified that the Child’s friends were “not free to leave.” He did not pursue the others because he “could only stop one.person at a time.” Further adding, “I can’t get everybody to stop and talk to me.” Therefore, according to the arresting officer, the Child and. his friends were not free to leave from the moment the encounter with the officer began,

Because we determine the encounter between- the Child and the officer was not consensual, but rather an investigatory stop or an arrest, the Child was entitled to the protections afforded by the Fourth Amendment. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744; Popple, 626 So.2d at 187. As such, and because it is undisputed that there was no probable cause to arrest the Child at that moment, we must ask “whether the content of information possessed by police and its degree of reliability gave the officer[ ] reasonable suspicion that the [Child] was committing an ongoing crime.” Navarette v. California, — U.S. —, 134 S.Ct. 1683, 1693, 188 L.Ed.2d 680 (2014) (Scalia, J., dissenting).

' In á factually similar case, the police received an anonymous tip that two adult males were loitering around an apartment complex in the early afternoon. Collins v. State, 115 So.3d 1040, 1042 (Fla. 4th DCA 2013), The officer “asked the men to stand by while he went to make sure” their story added up, and subsequently found cocaine on one of them. Id. We explained “there [was] no doubt that a . reasonable person would not have felt free to leave or terminate the encounter,” Id. at 1043, As in this case, in Collins “the arresting officer testified that the [defendant was not free to leave after the officer told him to stand by while he investigated.” Id. We held that “a person’s mere presence on a property is not sufficient to give rise to a reasonable suspicion' that the crime of trespass is being committed and cannot be the basis for an investigatory stop.”- Id. Therefore, we concluded, the evidence should have been suppressed. Id.

We reach thé same conclusion in this case and hold that the officer lacked reasonablé suspicion that the Child was committing a crime. Therefore, the officer’s investigatory stop was. not justified.

Conclusion

The officer lacked reasonable suspicion that the Child was committing a crime. Therefore, the Child’s Fourth Amendment rights were violated when the officer ordered him to “stop” and searched him. Because the search was unlawful, the judgment is vacated, and the case remanded with instructions to grant the Child’s motion to suppress.

Reversed and remanded with instructions.

May and Klingensmith, JJ., concur.

      . In Navarette, the Court unanimously agreed with the portion of the dissent quoted above. 134 S.Ct at 1690 (2014).


author: Per Curiam.

text:
    Scott Robert SCHLEIN, Gary Schlein, Deborah Schlein and Shirley Hirschbein, Appellants, v. PORT ST. LUCIE POLICE DEPARTMENT, Appellee.
    No. 4D17-1883
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]
    Richard D. Kibbey of Kibbey Wagner Attorneys At Law, Stuart, for appellants.
    No appearance for appellee.
   Per Curiam.

We sua sponte redesignate the proceeding as a review of an appealable non-fínal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and affirm. Fla. R. App. P. 9.315(a).-

Affirmed.

Taylor, Conner and' Kuntz, JJ., concur.


author: Taylor, J.

text:
    Irvine HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-717
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]

      Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Irvine Hicks appeals his judgment of conviction and sentence for possession of a firearm by a convicted felon. We affirm appellant’s conviction on all issues raised in this appeal, but we reverse the 10-year mandatory minimum portion of the sentence imposed, because, as the state concedes, the trier-of-fact did not make an express finding that appellant had actual possession of a firearm. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007).

Appellant was initially sentenced to a 10-year mandatory minimum sentence, pursuant to Florida’s 10/20/Life statute. He moved for a new trial or, alternatively, reconsideration of the mandatory minimum sentence, arguing that the state had failed to show actual possession. After the trial court denied appellant’s motion, appellant filed a notice of appeal. About two months later, during the pendency of the appeal, the trial court recalled the case and, upon the state’s concession that the mandatory minimum provision should be stricken, removed the mandatory minimum term from appellant’s sentence and resen-tenced appellant to ten years “straight time.” However, because appellant had already filed his notice of appeal, the trial court lacked jurisdiction to modify the sentence. See Tramel v. State, 68 So.3d 340, 340 (Fla. 1st DCA 2011). Thus, the court’s order removing the mandatory minimum term was without legal effect.

The next issue we must decide is whether resentencing is required. We recognize that remanding for a trial court to strike the mandatory minimum portion of a sentence is often a “ministerial sentence correction” for which resentencing is not required. See, e.g., Flores v. State, 58 So.3d 437, 438 (Fla. 4th DCA 2011). Nonetheless, a reversal of a mandatory minimum sentence will sometimes require the appellate court to remand for resentencing under the Criminal Punishment Code. See, e.g., Bundrage v. State, 814 So.2d 1133, 1135 (Fla. 2d DCA 2002). Thus, the issue of whether resentencing is required following a reversal of a mandatory minimum term is a fact-specific inquiry that depends on the circumstances of each case.

Here, we decline to follow the state’s suggestion to direct the trial court on remand to simply strike the minimum mandatory portion of the sentence and leave the straight 10-year sentence intact. This, according to the state, would be consistent with the original sentencing judge’s intention. Notably, however, the original sentencing judge lacked jurisdiction at the time of the resentencing, this judge is no longer on the bench, and appellant’s Criminal Punishment Code scoresheet reflects a lowest permissible sentence well below ten years’ imprisonment. Under these circumstances, a successor judge should review the case and independently decide an appropriate sentence for appellant. We therefore reverse appellant’s sentence and remand for the trial court to strike the 10-year mandatory minimum term and conduct a full resentencing hearing with appellant present.

Affirmed in part, Reversed in part and Remanded.

Damoorgian and Kuntz, JJ,, concur.