Timothy A. RINEHART, Appellant, v. STATE of Florida, Appellee, 778 So. 2d 331

CASANUEVA, Judge. Timothy A. Rinehart appeals from his judgment and sentence for possession of cocaine, asserting that the trial court erred by denying his dispositive motion to suppress. Based upon his meritorious contention that he was illegally detained, we reverse. At approximately 4:30 a.m. on April 5, 1998, a Lee County deputy sheriff observed Mr. Rinehart and a young woman entering a parked vehicle. The car was parked to the right of a building that housed a business on the ground floor and apartments on the second floor. The deputy also observed two other people in the vicinity of the apartments.

The deputy had received no reports of criminal activity or noticed any illegal behavior by any of the four. Because it was spring break, however, the deputy was on a routine check of businesses to protect against vandalism, and he decided to detain Mr. Rine-hart and the others to ascertain what they were doing. Arriving at the car, the deputy asked Mr. Rinehart and his companion what they were doing there, and they responded that they were visiting friends. Because their answers did not dispel his belief that he had come upon a loitering and prowling in progress, the deputy decided to interview them further.

By separating Mr. Rinehart from the young woman outside the car, the deputy thought he would be able to discern whether their two stories matched, so he ordered the two to get out of the car. His plan was to allow them to leave once they had completed an approximately five-minute field interview. Mr. Rinehart apparently had been drinking and was unable to hold his liquor, a fact resulting in two unfortunate circumstances. First, he fell to his hands and knees and vomited. Second, when Mr. Rinehart arose the deputy noticed a plastic bag, later found to contain cocaine, on the ground next to where Mr.

Rinehart’s hand had been and in a spot that previously was bare. The deputy then arrested Mr. Rine-hart. The legality of the deputy’s arrest of Mr. Rinehart for cocaine possession depends upon the legality of his detention. A law enforcement officer is not required to possess a founded suspicion to approach an individual to ask questions. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Once the deputy directed Mr. Rinehart to exit his vehicle, however, the nature of this police-citizen contact was altered. In Popple v.

State, 626 So.2d 185,188 (Fla.1993), a case with a similar factual genesis, the Florida Supreme Court found that, whether “characterized as a request or an order, ... Deputy Wilmoth’s direction for Popple to exit his vehicle constituted a show of authority which restrained Popple’s freedom of movement because a reasonable person under the circumstances would believe that he should comply.” Thus, within Fourth Amendment parlance and analysis, the deputy’s initial encounter with Mr. Rinehart turned into a Terry stop or an investigatory detention. See Thomasset v. State, 761 So.2d 383, 386 (Fla. 2d DCA 2000).

Having decided that the deputy detained Mr. Rinehart, we must next decide whether the investigatory stop was supported by the officer’s well-founded and articulable suspicion of criminal activity. See § 901.151, Fla.Stat. (1997); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989). A mere feeling or belief that criminal activity is under way is insufficient. See Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

Instead, the law enforcement officer’s suspicion must possess “some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in the light of the officer’s knowledge.” Peabody v. State, 556 So.2d 826, 827 (Fla. 2d DCA 1990). Finally, then, we must determine whether the facts known to the deputy supported a founded suspicion that Mr.

Rinehart was loitering and prowling, a crime that occurs when a suspect loiters or prowls “in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021, Fla. Stat. (1997); see J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999). Where there is no evidence of an imminent threat to either persons or property no crime is committed. See R.M. v. State, 754 So.2d 849, 850 (Fla. 2d DCA 2000). Here, the deputy admitted that when he first observed Mr.

Rinehart, he did not suspect that his behavior constituted an imminent threat to public safety. Rather, he wanted Mr. Rinehart and the others to fill out field interview cards so that he could contact them in case something unusual was discovered later. In conclusion, the investigatory stop of Mr. Rinehart failed to meet the requirements demanded by our law of search and seizure; and, absent the illegal stop, the deputy would not have discovered the cocaine. Accordingly, we reverse the judgment and sentence and remand this case for the trial court to discharge the defendant. GREEN, J., concurs.

ALTENBERND, A.C.J., Specially concurs. . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).