Kurecka v. State (4th District Court of Appeals, September 29th, 2010)

Charles Kurecka was involved in an automobile accident on August 24, 2005. Officer Joseph Rubin of the Greenacres Department of Public Safety responded to the scene of the accident and conducted a DUI investigation. After performing field sobriety exercises, Kurecka was arrested for DUIand transported to the Greenacres Public Safety Department.   Defendant was requested by law enforcement to submit to breath testing.  Upon hearing the request, Defendant requested to speak with an attorney. Prior to requesting Defendant to submit to breath testing, law enforcement had not advised Defendant of his Miranda rights. As such, Defendant's desire for counsel was not premised upon law enforcement advice, but his own belief that he needed to speak with an attorney. Law enforcement did not inform Defendant that he did not have a right to speak with counsel prior to deciding to take or refuse breath testing. Because he wanted to speak with counsel first, Defendant refused to submit to breath testing.

The Defense filed a Motion To Suppress the Defendant's refusal based upon the following argument:  A DEFENDANT'S MISTAKEN BELIEF IN THE RIGHT TO COUNSEL PRIOR TO BREATH TESTING, NOT CREATED BY LAW ENFORCEMENT, BUT MADE KNOWN TO LAW ENFORCEMENT, REQUIRED THE SUPPRESSION OF THE REFUSAL TO SUBMIT TO BREATH TESTING IF LAW ENFORCEMENT DOES NOT CORRECT THE DEFENDANT'S MISTAKEN BELIEF?

Ultimately the Appeals court said no to this argument.  However, they did say "we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant's confusion about the right to counsel for breath testing."  Based upon this language, if in a DUI case a Defendant is miss-informed by an officer the Court may through out a refusal to take the the breath test.

Alleyne v. State(4th District Court of Appeals, September 1st, 2010).

At 9:15 a.m., a number of police cars pulled up to a convenience store. ^FN2Alleyne started to run away. A police car pulled in front of Alleyne and an officer tasered him. As he stopped, a brown bag flew out of his hand and landed on the police car. Inside the bag were 18 individual plastic Ziploc bags containing marijuana and a rolled up $20 bill. The total weight of all the marijuana was less than 20 grams. The officer found $36 in Alleyne's pocket. The state offered no testimony as to Alleyne's conduct outside of the store before the police arrived.

The Defense at the trial moved the Court to dismiss the case which was denied by the Judge.  The Defendant was convicted of Possession with Intent to Sell within a Thousand Feet of a School(which carries a mandatory Minimum of 3 years in prison).

On appeal the Appellate Court found that the officer's opinion was unsupported by facts that would give it credence; the Defendant did nothing outside the convenience store before the police pulled up which indicated he was selling drugs. Neither the total amount of marijuana nor the amount of cash recovered was inconsistent with personal use. His flight from the police was as consistent with possession of illegal drugs as it was with the intent to sell them.

Therefore, trial court erred when it denied the Defense's motion for judgment of acquittal at the end of the state's case, because the evidence of his intent to sell was circumstantial and the evidence did not exclude his reasonable hypothesis of innocence-that he possessed the marijuana only for personal use.  The Court then reduced the charges to simple Possession of Cocaine.

Beahan v. State (1st District Court of Appeals, August 5th, 2010

Sergeant Haines observed the defendant driving his car slowly down the street and stopping in front of several of the housing units. The street was a two-lane street with sidewalks on each side. After proceeding down the street past several of the residences, the defendant turned around and headed in the other direction. He could have reversed course by making a three-point turn but instead he made a U-turn by driving his vehicle up over the curb on the opposite side of the street. According to Sergeant Haines, the wheels of the defendant's car went onto the grass about two or three feet from the edge of the curb. There were no other vehicles on the street at the time.

Based on these facts, Sergeant Haines signaled for the defendant to pull over. The defendant produced his driver's license and, while running a computer check on the license, Sergeant Haines called another officer for assistance. Sergeant Haines told the defendant that the reason for the stop was that he had made an illegal U-turn onto the grass. He said that the defendant was nervous but that he did not smell of alcohol and that he did not appear to be under the influence of drugs or alcohol.

Within five minutes a canine officer arrived at the scene with a drug-sniffing dog in the back of his patrol car. The canine officer had arranged to be in the area of the Milton Housing Project. He knew that Sergeant Haines would be working there and he had planned to be close by, in case he was needed. The dog alerted on the defendant's car, and the officers eventually discovered within the car a smoking pipe and a baggie with a crushed up white substance in it. Sergeant Haines then arrested the defendant for the drug offenses.

The Court said: just because the defendant was driving slowly in a residential neighborhood should not be regarded as unusual. Any safe driver would proceed cautiously down a two-lane residential street with sidewalks on both sides. Nor is it cause for suspicion that the defendant stopped from time to time. He was not driving erratically and the fact that he stopped a few times along the side of the street is more likely to indicate that he was looking for an address or speaking with friends than it does to suggest that he was impaired by the use of alcohol or drugs.

The stop of the defendant for a traffic infraction was questionable.  Section 316.1515, Florida Statutes prohibits a driver from making a U-turn only if such a turn is prohibited by a posted traffic sign or if the turn cannot be made safely and without interfering with traffic. See Bender v. State,737 So.2d 1181 (Fla. 1st DCA 1999) (concluding that the officer had probable cause to make an arrest for an illegal turn because the turn was made near a dangerous curve). As we have explained, there was no traffic in the area and the defendant appeared to be operating his vehicle safely.

For those reasons, the court concluded that there was no reasonable suspicion to believe that the defendant was driving his car while impaired. Because the officer lacked a reasonable suspicion to stop the vehicle, the subsequent search was unlawful and the evidence seized from the vehicle should have been suppressed.

State v. Townsend (2nd District Court of Appeals July 16th, 2010)

The Deputy stopped Townsend because an obstruction on the vehicle's license tag covered the expiration sticker. The registration was for a KIA, but Townsend was driving a Chrysler Sebring. When Deputy Koehler ran the license, he discovered that Townsend had a business purpose only license. Deputy Koehler arrested Townsend for violation of his restricted license, handcuffed him, and placed him in the back of the patrol car.

The defendant's vehicle was on the shoulder of the road on the county easement and was obstructing the bicycle lane. The Deputy determined that Townsend was the primary registered owner of the vehicle and that Townsend's wife was the registered co-owner. No one was at the scene who could take possession of the vehicle, and Deputy Koehler acknowledged that he did not attempt to contact Townsend's wife to ask if she could remove the vehicle.

When asked about the impound procedure, the Deputy noted that the purpose is for “the safety of the vehicle's contents and property for the owner” and “for safety on the obstruction of a right of way.” In his police report, he wrote that he conducted a search incident to arrest. He did not write that the search was an inventory search but testified that the search was both incident to arrest and to impounding the vehicle.

Because the vehicle was obstructing the right of way, the Deputy began the impound procedure for the vehicle. He followed standard operating procedures of the Hillsborough County Sheriff's Office. He searched the vehicle to inventory its contents and found a crack cocaine rock on the driver's seat and a glass crack cocaine pipe under the driver's seat. He then charged Townsend with possession of cocaine and possession of paraphernalia.

The Court held that the Deputy's  search was a proper inventory search, conducted in accordance with standardized police procedures, regardless of the label that Officer Koehler gave to the search in his written report. Townsend's vehicle obstructed the right of way, and Deputy Koehler was not required to offer an alternative to impoundment before he had the vehicle towed. The lower court did not make any finding that Deputy Koehler was acting in bad faith. Rather, the court made the specific finding that Deputy Koehler followed standard impound procedures “as to the search, inventory, and towing of Defendant's vehicle which had to be removed from public property.” Thus, we conclude that the search was valid as an inventory search.

Therefore, the current law is that there is a distiction between "a search incident to arrest" and an "inventory search" that is based upon the facts not upon an officer's articulation in his report.

State v. DeLuca (1st District Court of Appeals, July 16th, 2010)

Around 1:30 a.m. on February 28, 2009, a police radio “be-on-the-lookout” (BOLO) dispatch reported two white men in a vehicle pulled a black 9-mm handgun on a man named Cecil Brown in the area of Carolina and Macomb Streets in Tallahassee. One of the gunmen reportedly wore a hat. This information derived from a 911 call to the police by a caller who identified himself as the victim, Cecil Brown. The caller provided a cell phone number where he could be reached, specifically described his clothing (bluejeans, a black turtleneck, and a green Miami Hurricanes jacket), identified his street corner location, and described the gunmen's vehicle as a black GMC Yukon bearing license plate number 285WZX and displaying a Florida State University decal on its rear window. The caller reported the vehicle was heading west near the 500 block of Tennessee Street.

The unoccupied GMC Yukon, with the license tag number and FSU decal, exactly as reported, was parked in front of a gas station/convenience store at Tennessee and Call Streets, not far from the reported incident site. Although spying a number of people in the parking lot, Officer Harriett saw only two white men (one wearing a hat). These men stood directly beside the FSU decal-bearing GMC Yukon. Harriett believed the two men were the subjects of the 911 call. Significantly outnumbered and knowing the men were reportedly armed, Officer Harriett exited his police vehicle and ordered everyone to sit on the ground for safety reasons. Everyone complied with the order except the white man who was not wearing a hat.

During the detention, Officer Harriett looked under the Yukon where DeLuca's arm had been and found several packets of white powder, some of which was cocaine.

Officer Harriett's order to the assembled crowd to sit on the ground was a “seizure” or detention for Fourth Amendment purposes. See Gipson v. State,667 So.2d 418, 419-20 (Fla. 5th DCA 1996). For a justified temporary detention, Officer Harriett must have had a reasonable suspicion of criminal activity. See § 901.151(2), Fla. Stat. (2008); Terry, 392 U.S. at 24-26; Baptiste, 995 So.2d at 290.  “[W]hen the police act on the information of an informant, the reliability of that information must be established before a citizen can be stopped and frisked.” J.L. v. State,727 So.2d 204, 206 (Fla.1998), aff'd, Fla. v. J.L., 529 U.S. 266 (2000); see also State v. Manuel,796 So.2d 602, 605 (Fla. 4th DCA 2001).

This Court held that the seizure was valid.  However, it gives a good synopsis of what police must do when they receive information from an informant.

Ray v. State(4th District Court of Appeals: July 14th, 2010)

An officer was monitoring a neighborhood in response to resident complaints of drug dealing. The officer observed the Defedant drive up and stop in the middle of the road. While he remained inside the vehicle, an unknown adult male approached the passenger side of the vehicle. The officer observed some sort of hand-to-hand exchange between Ray and the unidentified male. Although the officer could not identify the objects exchanged between the two, she perceived the exchange to be a drug transaction.

The officer then followed the defendant as they drove away. The officer turned on the overhead lights in an attempt to make a traffic stop. The defendant drove through a stop sign without stopping and the officer pulled her over. As the officer approached, the defendant dropped a small amount of a white substance out of her vehicle's window. The substance was recovered and tested positive for cocaine.

This Court has stated, though, that an “officer's observation of hand-to-hand movements between persons in an area known for narcotics transactions, without more, does not provide a founded suspicion of criminal activity.” Belsky, 831 So.2d at 804 (emphasis added); see also Messer v. State,609 So.2d 164, 165 (Fla. 2d DCA 1992) (“In those instances where no contraband was observed, the officer was deemed to have had only a ‘bare’ rather than a ‘reasonable’ suspicion that the defendant was engaged in criminal activity.”); Waddell v. State,652 So.2d 917, 917-19 (Fla. 4th DCA 1995) (holding that the observance of two unknown African-American males approaching a truck driven by a white male, without witnessing the exchange of drugs or money, did not amount to a reasonable suspicion).

Also, courts have routinely held that the use of emergency lights “ ‘evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.’ “ Errickson v. State,855 So.2d 700, 702 (Fla. 4th DCA 2003) (quoting Young v. State,803 So.2d 880, 882 (Fla. 5th DCA 2002)). When the arresting officer activated her emergency lights to pull over Ray, she commenced an investigatory stop without reasonable suspicion. Ray's traffic infraction occurred after the officer turned on her lights.

The Court threw out the evidence.

Hill v. State, (3th District Court of Appeals, June 30th, 2010)

In the early morning of May 31, 2008, an Officer of the Key West Police Department responded to an anonymous call that a black male wearing a shirt, jeans, and nice sneakers was sitting with a nicely dressed white female and selling narcotics.  The Officer did not observe anything that indicated that a crime had occurred, was occurring, or was about to occur. He called four other Officers who arrived at the scene. 

The Officer testified that Hill was free to decline the search and leave. Although Hill felt that the officer did not have a right to search him, Hill proceeded to empty his pockets. As Hill removed his keys from one of his pockets, the Officer noticed a clear plastic bag with a white powdery substance inside. Recognizing the substance to be cocaine, the Officer placed Hill under arrest. A field test yielded positive for cocaine.

There are three types of "police-citizen" encounters: Consensual, Investigatory Detention, and formal arrest.  In this case the Court said that a reasonable person in Hill's position would not have felt free to leave or to decline the officers' requests in light of the surrounding circumstances immediately preceding Hill's arrest.  Additionally, the officers asked Hill for his consent to a search while one officer retained his license to run a warrants check.  The Florida Supreme Court has found that “the retention of identification during the course of further interrogation or search certainly factors into whether a seizure has occurred.” Golphin, 945 So.2d at 1185.

The Court granted the Defense's Motion to Suppress and the charges were thrown out.

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.

Diaz v. State, (4th District Court of Appeals, May 19th, 2010)

The police had an informant who said the Defendant was selling drugs out of his house.  The police went to the residence and arrested the Defendant outside the his home, about five feet from the front door. The front door remained open. the police said they could tell that there were other people inside because from the front door the police could see some movement in the back bedroom. Five officers entered the home with guns drawn and performed a protective sweep. the police explained that the protective sweep was “for our well being, making sure nobody was armed,” and that they “went inside and detained the other people that were inside the house.”

The Court stated that without extraordinary circumstances, “government agents have no right to search a dwelling when an arrest is effectuated outside it.” Klosieski v. State,482 So.2d 448, 450 (Fla. 5th DCA 1986) (citing Vale v. Louisiana, 399 U.S. 30 (1970)). The threshold to the entrance of a house “may not reasonably be crossed without a warrant” absent exigent circumstances. Id. (citing Payton v. New York, 445 U.S. 573 (1980)). 

Moreover, in Klosieski v. State,482 So.2d 448, 449 (Fla. 5th DCA 1986), the police conducted a protective sweep of the house after the two defendants were arrested and secured outside the home. The fifth district reversed the denial of the motion to suppress, holding that “the police had no reason to believe that other individuals, dangerous to their safety, were inside the house.... The fact that the police did not know, as an absolute certainty, whether more people were in the house ... cannot justify entry into the house.” Id. at 450 (emphasis supplied).

This Court found that no evidence was adduced to establish the required “reasonable, articulable suspicion” that these individuals posed a danger and might jeopardize the officers' safety or destroy evidence. The officers testified only about their general safety concerns with narcotics investigations. Their testimony suggests that they entered the residence as part of a routine practice, rather than on the basis of any articulable facts which would warrant a reasonable belief that the occupants posed a threat to officer safety.  Thus, all evidence was thrown out and the case dismissed.

Whitfield v. State (Fifth District Court of Appeals/ April 23rd, 2010)

Officer unreasonably detained defendant after stopping his vehicle for speeding; officer had completed all routine investigation within twelve minutes of traffic stop and, but for extended interrogation of defendant, there was no apparent reason why citation should not have been issued within short time thereafter, because officer decided he would confirm that defendant was contractually authorized to drive vehicle before issuing citation, eight-and-one-half minutes of thirty-minute detention were taken up with that question, it was not clear what criminal offense officer was holding defendant to investigate, officer had already confirmed that car was not stolen and no effort was made to determine that lessee had not given permission for defendant to use vehicle, and investigation extended traffic stop to more than twenty-eight minutes, which, coincidentally, was exactly same amount of time it took officer to get drug sniff dog on scene. 

Court threw out the cocaine that was found in the vehicle.

Skinner v. State (First District Court of Appeals/ April 7th, 2010)

Before detaining someone during a DUI investigation, an investigator such as Trooper Brooker must have a reasonable suspicion the detainee-here, Mr. Skinner-committed the offense. See § 901.151(2), Fla. Stat. (2007); State v. Taylor, 648 So.2d 701, 703 (Fla.1995). An arrest for DUI must be supported by probable cause. See § 901.151(4); Popple v. State, 626 So.2d 185, 186 (Fla.1993). Here, defense counsel cited the accident report privilege to argue the prosecution had not presented any admissible evidence to prove petitioner drove a vehicle involved in the crash. When the county court asked the State at the initial hearing what specific evidence it had presented (other than petitioner's privileged statements) to establish he was a driver, the prosecutor relied on 1) Brooker's testimony that he had observed petitioner and Charles standing outside leaning against the side of the vehicle and that petitioner smelled of alcohol and demonstrated other indicators of impairment, and 2) the State's “belief” the vehicle belonged to the petitioner. Argument of counsel does not constitute competent substantial evidence. See McLeod v. McLeod, 989 So.2d 1255, 1256 (Fla. 1st DCA 2008). Given the State's bare-bones response, the county court granted the amended motion to suppress because the State had presented no evidence to prove that petitioner had been the driver. The record supports this ruling.  Thus, the Court through out the DUI.

F.E.H. v. State (Fouth District Court of Appeals/ February 24th, 1010)

Late one night a detective saw two males standing in the corner of the open parking lot of a closed daycare center. One of them was the 16 year old appellant. The detective got out of his car to investigate why the pair was on the property. At the same time, four or five other officers jumped out of their vehicles and walked past appellant to focus on other persons. When the juvenile F.E.H. walked away from the parking lot, the detective “called him back.” The detective did not pull his weapon. The juvenile F.E.H. testified that he came back because “[h]e was a policeman; I had to come back.”

The Court held: the juvenile F.E.H. began to walk away from the detective. He returned to engage the detective as the result of what a reasonable person would believe was an order, so this response was more of a surrender to authority than an act of free will. Florida courts have held that a police officer's direction to a person to do a particular thing, such as to get out of a car, to take hands out of pockets, or to open a mouth are indicative of a seizure.

Another factor supporting the finding of a seizure is that the detective approached appellant during a police sweep involving other officers. A police action involving a number of officers is a fact that can influence a person's perception that he is not free to ignore an officer's command. Thus, in Clayton v. State, 616 So.2d 615, 616-17 (Fla. 4th DCA 1993), the presence of four officers from a narcotics task force was one factor that “communicated to [the] defendant that he was not at liberty to ignore their presence and go about his business.”

The Court suppressed the evidence and the case was thrown out.