Gestewitz v. State (4th District Court of Appeals, May 26, 2010)

The Defendant, Gestewitz, got into an argument with a bartender, the bartender called the police. Before the police arrived, Gestewitz had moved outside the bar and was standing by the bar's front door.  The officers approached asked him to move away from the front door. The manager then asked the police to issue a trespass warning so that he could not re-enter the bar. While one officer went inside to fill out a written trespass warning, the two other officers detained Gestewitz outside the bar and spoke with him about the incident. Gestewitz then started putting his hands in his pockets. Although they did not notice a bulge in Gestewitz's pockets, the officers asked Gestewitz if he had any weapons on him and ordered him to remove his hands from his pockets. Gestewitz pulled his hands from his pockets and started voluntarily removing items from them.  At this time, one of the officers noticed a clear plastic baggie poking out of Gestewitz's right pocket. The officer asked Gestewitz what was in the baggie. Gestewitz said it was a Xanax bar. Because Xanax is a controlled substance and Gestewitz did not have a prescription for it, the police placed Gestewitz under arrest. A few moments later, Gestewitz, whom the police had not yet handcuffed, tried to flee. About thirty feet into the chase, he tripped and fell and the police took him into custody. The State thereafter charged him with possession of a controlled substance (Xanax) and escape.

A detention for the purpose of issuing a trespass warning on behalf of a private owner-absent other circumstances giving rise to a reasonable suspicion of other criminal activity-is a consensual encounter. Accordingly, we conclude that a stop merely to issue a trespass warning is not a Terry stop, but rather a consensual encounter.This is because a police officer-under the trespass statute-may issue a trespass warning for unauthorized entrance into a structure, but does not have the legal authority to conduct an investigatory stop or arrest for trespass unless the owner or his agent first warned the potential trespasser. Florida's criminal trespass statute “requires that notice be given before a person can be guilty of trespassing on property,” and that individuals “c[an] be legally detained for trespassing only if they were first warned to leave the property”

In the instant case, the law enforcement officers could have chosen to give Gestewitz a verbal trespass warning and allowed him to leave when his friend arrived. If Gestewitz voluntarily decided to stay at the scene in order to receive a written trespass warning, that would have also been sufficient. However, the officers had no statutory or other lawful authority permitting them to detain Gestewitz for the purpose of issuing him a trespass warning. This is because, at the time the officers detained Gestewitz for warning purposes, there was no reasonable suspicion that Gestewitz committed the crime of trespass, as a trespass warning is a prerequisite to that crime.

Given these circumstances, and the officers having no fear for officer safety or reasonable suspicion that Gestewitz had committed a crime or was about to commit a crime, the detention was unlawful.  Further compounding the illegality of the detention was one law enforcement officer's order for Gestewitz to remove his hands from his pockets. Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop.

Thus, the discovery of the Xanax bar was the product of an illegal detention, and the trial court should have granted the motion to suppress. It necessarily follows that because the discovery of the Xanax bar led to the arrest, which was unlawful, there could be no escape, as it stemmed from that unlawful arrest. We, accordingly, reverse the convictions for possession of the controlled substance Xanax and escape, and order Gestewitz to be discharged.