Office of the Attorney General

SLIP OPINION

CAUTION: The following is a slip opinion which may or may not reflect the
exact contents of the opinion in its final published form. The original
file provided by the court, when available, is attached.

AG number: 6009 Style: White vs. State
Jurisdiction: 2nd DCA

AG HEADNOTE
Search and seizure - founded suspicion
Narcotics found during a search must be suppressed because an officer lacked
founded suspicion to stop a vehicle, the 2nd DCA held.
Private security officers contacted police when they were suspicious of a
vehicle driving back and forth in front of a closed marina around 3:30
a.m. As the investigating officer spoke with the guards, she saw the vehicle
drive by. The officer later stopped the vehicle, and a search
revealed marijuana and a firearm. A trial court refused to suppress the
evidence but the DCA reversed, concluding that the totality of the
circumstances did not give rise to a reasonable suspicion that a crime was
about to occur.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

KELVIN D. WHITE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_________________________________ )

Appeal from the Circuit Court for Pinellas County; Philip J. Federico,
Judge.

Ellis Rexwood Curry, IV, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia E.
Davenport, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Acting Chief Judge.

The State charged Kelvin White with possession of a firearm and possession
of marijuana. White moved to suppress the gun and the drugs,
which were discovered when law enforcement officers stopped his car. The
circuit court denied his motion, and he pleaded no contest to the
charges, reserving the right to appeal his dispositive motion to suppress.
We reverse.

At the hearing on White's motion to suppress, two private security officers
testified that they were working in the area surrounding Maximo
Marina in St. Petersburg on the night White was arrested. At about 3:30
a.m., they noticed a car driving back and forth in front of the marina,
which was closed at the time. The car then turned into the parking lot of an
adjacent motel, which was open for business. At a second hearing on
the motion, the motel's security guard testified that he also observed the
car, which was moving, but had its lights turned off. The car pulled into a
parking space. When this security guard approached the car, one of the
occupants shouted profanities at him. While the occupant's remarks
were not threatening, the security guard felt "a little bit" threatened. The
car then drove away.

The motel's security guard contacted the St. Petersburg police department,
and Officer Marian Schmidt arrived to investigate. She was
speaking with the security guards when the suspicious car drove by on a
public street next to the motel and marina property. Officer Schmidt
pursued the car and stopped it. She smelled marijuana, placed White and his
passenger in her patrol car, and discovered marijuana cigarettes
in the car's ashtray and a gun on the passenger-side front floorboard. White
was arrested and charged with the previously-mentioned crimes.
Officer Schmidt did not have the requisite "well-founded, articulable
suspicion of criminal activity" necessary to support a traffic stop. See
Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). To justify an
investigatory stop, law enforcement must have a reasonable suspicion that
the
person has committed, is committing or is about to commit a crime. See id.;
see also § 901.151(2), Fla. Stat. (1995). The testimony at the
suppression hearing showed that businesses in the area had been robbed at
some indeterminate time in the past. But no recent crime had
occurred, so the stop could not be justified by a suspicion that White or
his passenger were the perpetrators. Cf. Grant v. State, 718 So. 2d 238
(Fla. 2d DCA 1998) (upholding a stop where a car was driving without its
headlights, up and down a small street where a burglary had occurred
mere hours earlier). None of White's activities described at the hearing
could give rise to a belief that he was actually committing a crime. Any
suspicion that he was about to commit one was dissipated when he drove away
from the businesses, and no evidence showed that White's car
was returning to the business area when the guards spotted it driving down a
public street.

The totality of the circumstances in this case did not give rise to a
reasonable suspicion that criminal activity was afoot. The officer's stop of
White's car was improper, and all evidence seized as a result of the stop
should have been suppressed. We reverse White's convictions, and
we remand with directions to discharge him.

Reversed and remanded.

GREEN and SALCINES, JJ., Concur.

Case No. 98-02308
Opinion filed May 28, 1999.

Office of the Attorney General

AG number: 10006 Style: Johnson vs. State
Jurisdiction: 2nd DCA

AG HEADNOTE

Verification of tip caller's identity
Even if a caller provides his name, address and phone number, police still
need more to verify the caller's identity before he can be considered
a citizen-informant to justify the search of a criminal suspect, the 2nd DCA
said.
The DCA said a trial court should have granted a motion to suppress evidence
against a man charged with possession of cocaine and drug
paraphernalia. Curtis Johnson was arrested after a deputy, acting on a
telephone tip, found him sitting on a curb with a cigarette pack
containing crack cocaine lying approximately a foot away. The DCA concluded
that the informant's information, without further verification, was
insufficient to provide reasonable suspicion for the deputy to question
Johnson. The court cited the Florida Supreme Court's 1998 decision in
J.L. vs. State, which held that innocent detail tips from anonymous
informants must be substantiated in some additional manner.
"In this case, the informant was anonymous because the police did not
independently verify his identity after he called, even though he provided
his name, address, and telephone number. Additionally, the deputy testified
that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before (the deputy) initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson," the
DCA said.
Opinion # 10006

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

CURTIS JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.

Appeal from the Circuit Court for Hillsborough County; Jack Espinosa, Jr.,
Judge.

Ellis Rexwood Curry IV, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann Pfeiffer Howe,
Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Following a plea of no contest to the charges of possession of cocaine and
possession of drug paraphernalia, Curtis Johnson appeals his
dispositive motion to suppress. We reverse because the law enforcement
officer did not have reasonable suspicion to conduct a Terry stop
based on an anonymous informant's tip or probable cause to arrest Johnson
based on the discovery of cocaine in a cigarette pack.

In April 1998 Deputy Amsler was dispatched regarding a complaint that a
black male in his forties, wearing burgundy pants and a white shirt,
was selling narcotics at a certain address. Although the complainant had
provided the police his name, address, and telephone number, the
police did not corroborate this information prior to dispatching the deputy.
When the deputy arrived at the address, he saw Johnson sitting on
the curb alone, whittling with a knife. Johnson fit the informant's
description of the suspect.

Approximately a foot away from Johnson, Deputy Amsler noticed an empty
cigarette pack with a flip top that was lying open. As the deputy
reached for the cigarette pack, Johnson reached toward it, but abruptly
pulled back. Inside the cigarette pack, the deputy found one small piece
of rock cocaine. Deputy Amsler directed Johnson to stand up and be patted
down. In Johnson's left rear pocket, the deputy felt a long object,
removed it, and discovered a glass pipe with wire stuck into it. Deputy
Amsler put Johnson in his vehicle while he ran a Valtox test, and
determined that the substance was presumptively crack cocaine. The deputy
then arrested Johnson.

On appeal, the State contends that the informant's tip provided reasonable
suspicion to conduct a Terry stop of Johnson. The State also claims
that the discovery of cocaine in the cigarette pack created probable cause
to arrest Johnson. We disagree and address the State's contentions
in turn.

We conclude that the information provided by the informant in this case did
not give Deputy Amsler reasonable suspicion to pat down Johnson.

The Florida Supreme Court has recently held that innocent detail tips from
anonymous informants must be substantiated in some additional
manner. See J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998) (an officer did
not have reasonable suspicion to stop a defendant based solely on
an anonymous informant's description of the defendant's clothing and
location and belief that he was engaging in illegal activity). In this case,
the
informant was anonymous because the police did not independently verify his
identity after he called, even though he provided his name,
address, and telephone number. See Maynard v. State, No. 98-02708 (Fla. 2d
DCA June 4, 1999) (requiring the police to verify a caller's
identity by either dispatching an officer to the caller's address or calling
them back to gain information that would corroborate their identity in
order for the caller to qualify as a citizen-informant). Additionally, the
deputy testified that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before Deputy Amsler initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson.

Moreover, the discovery of crack cocaine in the open cigarette pack could
not have provided probable cause to arrest Johnson because there
was no evidence that Johnson ever had possession of the cigarette pack.
Deputy Amsler noticed what appeared to be an empty cigarette pack
on the ground a foot away from Johnson. There was no testimony that the pack
was ever in Johnson's possession or that Johnson claimed
ownership of the pack. Even though Johnson reached toward the cigarette
pack, he pulled back to let the deputy grab it first. The State's
argument that Johnson abandoned the crack cocaine found in the cigarette
pack is also without merit for the same reason. Johnson could not
have abandoned property if there was no evidence that he possessed it in the
first place. Since Deputy Amsler did not have probable cause to
arrest Johnson, any contraband obtained as a result of a search incident to
arrest must be suppressed. See Gnann v. State, 662 So. 2d 406,
408 (Fla. 2d DCA 1995).

Because the anonymous informant's tip did not provide reasonable suspicion
to pat down Johnson and the discovery of cocaine in the cigarette
pack did not provide probable cause to arrest him, the trial court erred in
denying the motion to suppress. Accordingly, we reverse and remand
with directions for the trial court to grant Johnson's motion to suppress.

Reverse and remanded.

THREADGILL, A.C.J., and PARKER and SALCINES, JJ., Concur.

read more »

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
Case No. 2D98-3990

WILSON ORJALES, a/k/a WILSON O. VELEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
______________________

Opinion filed April 14, 2000.

Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe,
Judge.

Ellis Rexwood Curry, IV, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee,
and Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

Wilson Orjales appeals his conviction for aggravated assault with a firearm
and his sentence of 36 months' imprisonment with a three year
minimum mandatory provision. Mr. Orjales raises three issues in this appeal;
the first two assert that the trial court erred in failing to give the
"castle doctrine" jury instruction, see Falco v. State, 407 So. 2d 203 (Fla.
1981), and the use of non-deadly force jury instruction, see Miller v.
State, 613 So. 2d 530 (Fla. 3d DCA 1993). We conclude the trial court did
not err and affirm on these issues. However, we find merit in Mr.
Orjales' third contention that it was error to impose a three year minimum
mandatory condition on his sentence.

Count One of the information charged Mr. Orjales with aggravated assault and
stated that he "did use a deadly weapon, to wit: a firearm, without
intent to kill." Following closing argument, the trial court provided the
jurors with the following instruction:
Wilson Orjales, the defendant in this case, has been accused of the crime of
aggravated assault and improper exhibition of a dangerous
weapon or firearm.

Before you can find the defendant guilty of aggravated assault, the State
must prove the following four elements beyond a reasonable doubt.
The first three elements define assault.
One, Wilson Orjales intentionally and unlawfully threatened either by word
or act to do violence to [the alleged victim]. Two, at the time Wilson
Orjales appeared to have the ability to carry out the threat. Three, the act
of the [sic] Wilson Orjales created in the mind of [the alleged victim] a
well-founded fear that the violence was about to take place. Four, the
assault was made with the a [sic] deadly weapon.
A weapon is a deadly weapon if it is used or threatened to be used in a way
likely to produce death or great bodily harm.

Neither the statement of the aggravated assault charge nor the instruction
on the elements of aggravated assault mentioned the firearm element
specified in the information.

The verdict form for the aggravated assault count gave the jury three
choices: guilty of aggravated assault as charged, guilty of assault, and not
guilty.

Before the trial court may impose the firearm-enhanced minimum mandatory
sentence, the jury must perform its fact finding function and
determine whether the offense involved the use of a firearm. See State v.
Overfelt, 457 So. 2d 1385, 1387 (Fla. 1984). In two recent opinions,
our supreme court has again examined whether a minimum mandatory may be
imposed for use of a firearm without a specific finding of fact by
the jury. In Stave v. Hargrove, 694 So. 2d 729 (Fla. 1997), the supreme
court held that even in circumstances where the defendant's use of a
firearm is uncontested, the jury must still make a finding of fact that a
firearm was used. Hargrove noted two methods by which this fact may be
found. The jury may answer a special interrogatory whether the defendant is
guilty of a crime involving use of a firearm or render a verdict of
guilty "as charged." In Hargrove, the firearm minimum mandatory was
improperly imposed because there was no special verdict form,
interrogatory, or even language in the verdict referencing a firearm. See
id. at 731. However, it again cautioned that the Overfelt requirement of
"a clear jury finding" that a firearm was used remained. Hargrove, 694 So.
2d at 731.

In Tucker v. State, 726 So. 2d 768, 772 (Fla. 1999), the supreme court held
"that the verdict form itself" must contain an express reference to the
use of a firearm. The supreme court pointed out that it previously held, in
State v. Tripp, 642 So. 2d 728, 730 (Fla. 1994), that a verdict of guilty
of the charges set forth in the information was "insufficient to establish
that a weapon was used, even though the information alleged that [the
defendant] used a weapon during the attempted first-degree murder." In
comparison, the verdict form in Tucker, although technically not a
special verdict form, contained language finding the defendant "guilty of
attempted first degree murder with a firearm" and was, therefore,
determined by the supreme court to be legally sufficient.

Applying these decisions to the case before us, we conclude that the absence
of specific language referencing a firearm in the verdict form, as
well as in the jury instructions, is fatally defective. We do not answer the
question whether providing the jurors with a copy of the charging
document during deliberations would satisfy the requirements of Overfelt,
Hargrove, and Tucker because this case's record is silent on the
point.

Accordingly, we affirm the conviction and sentence except for the imposition
of the three year minimum mandatory provision which we reverse.
We remand with instructions to the trial court to enter an amended sentence
accordingly.

PARKER, A.C.J., and SALCINES, J., Concur.

read more »

TARA UNION v. STATE FLORIDA
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

660 So. 2d 803; 20 Fla. Law W. D 2174

[6]      Appeal from the Circuit Court for Pinellas County; Claire K. Luten,
Judge.

[7]      Ellis Rexwood Curry, Tampa, for Appellant.

[8]      Robert A. Butterworth, Attorney General, Tallahassee, and Kimberly
D. Nolen, Assistant Attorney General, Tampa, for Appellee.

[9]      Parker, A.c.j., and Blue and Fulmer, JJ., Concur.

[10]     Author: Per Curiam

[11]     Per Curiam.

[12]     The defendant, Tara Union, appeals the denial of her motion to
suppress cocaine found in her purse during the search of a car in which

she was a passenger. We reverse because the state failed to prove that the
warrantless search of the car was justified as either a search

incident to arrest or a search based on probable cause.

[13]     The following undisputed facts were presented by stipulation. Union
was a passenger in a car also occupied by two men who were

involved in a drug transaction that had been arranged by law enforcement
officers using a confidential informant. The officers had no reason to

believe that Union would be involved in the drug transaction. Union stayed
in the car while the two men went into a hotel room and sold cocaine

to the informant. After the men were arrested, two officers who had observed
the men arriving at the hotel went to search the car which the men

had occupied. When the officers observed Union in the car, they took her out
of the car and searched her purse where they found a trace

amount of cocaine.

[14]     The state contends that the search of the car and its contents was
proper as either a search incident to the arrest of the two men who

made the drug sale or as a search based on the "automobile exception"
established by the United States Supreme Court in Carroll v. United

States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).*fn1 On the
facts presented, neither of these exceptions to the warrant

requirement apply.

[15]     We first address the "search-incident-to-arrest" argument. In
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),

the United States Supreme Court held that a lawful arrest justifies the
contemporaneous search without a warrant of the person arrested and of

the immediately surrounding area. In New York v. Belton, 453 U.S. 454, 460,
101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), this exemption

from the warrant requirement was extended to automobiles by the Court's
holding that "when a policeman has made a lawful custodial arrest of

the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile,"

including any containers found therein. However, unless the arrestee is a
recent occupant of the automobile, the Belton rule does not apply. See

State v. Vanderhorst, 419 So.2d 762 (Fla. 1st DCA 1982).

[16]     The determination of whether an arrestee was a recent occupant must
be made on a case by case basis and should be guided by the

rationale underlying the search-incident-to-arrest exception. Therefore, we
examine the facts in this case while keeping in mind the fact that

Chimel permits an arresting officer to conduct a warrantless search "of the
arrestee's person and the area within his immediate control"

because of the need to remove any weapons that the arrestee might seek to
use and the need to prevent the concealment or destruction of

evidence. 89 S. Ct. at 2040.

[17]     At the time the car was searched, the occupants who were arrested
were in a second floor hotel room some distance away from the car

and had been away from the car for a long enough time to complete a drug
sale and be arrested. While we do not know the exact amount of the

distance or time they were away from the car, we do not need these
measurements to conclude that the car was not within the area of their

immediate control. Thus, the search of the car was too remote in both place
and time to be justified as a search-incident-to-arrest. See also

Patrick v. State, 603 So.2d 640 (Fla. 2d DCA 1992)(arrest of defendant for
urinating in street behind car did not justify warrantless search of

car's interior in absence of evidence that defendant was recent occupant of
car at time of arrest); State v. Howard, 538 So.2d 1279 (Fla. 5th

DCA 1989)(where arrestee had exited and locked car before he was approached
by officer and then arrested, court held search of car was not

incident to arrest).

[18]     The state also argues that the officers had probable cause to
believe that the car contained contraband because they knew that the

co-defendants were arriving at the motel for a controlled drug transaction
and witnessed their arrival in the vehicle. The state further argues that

the mobility of the car justified the warrantless search. It is true that
the police may make a warrantless search of a vehicle if there is probable

cause to believe it contains evidence of a crime and it is likely that, due
to exigent circumstances, the vehicle will be unavailable by the time a

warrant is obtained. See Carroll, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct.
280. However, we do not believe that the officers had probable cause

to search the vehicle. There were no facts presented to support a belief
that there would be additional drugs in the car, and we decline to adopt

a presumption that anyone who drives to a location to make a drug sale
leaves additional drugs in the vehicle. Because we conclude there was

no probable cause to believe that the car contained contraband, we need not
address whether there were exigent circumstances to justify a

warrantless search.

[19]     Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the

defendant.

[20]     PARKER, A.C.J., and BLUE and FULMER, JJ., Concur.

[21]     Disposition

[22]     Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the

defendant.

  Opinion Footnotes

[23]     *fn1 If the search of the car was proper under either exception,
then the search of Union's purse was also proper. See State v. Moore,

619 So.2d 376 (Fla. 2d DCA 1993)(after arrest of car's driver, police had
the right to search passenger's purse found on front floorboard);

United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982)(the scope of the search under the Carroll exception includes

every part of the automobile and its contents in which contraband or other
evidence of a crime might be expected to be found.)

cited at
http://caselaw.findlaw.com/data2/floridastatecases/app/app2_12_2006/2...

http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/85082D97...

http://www.myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/268E...

http://www.4dca.org/Dec2005/12-14-05/4D05-1504.op.pdf

http://statecasefiles.justia.com.s3.amazonaws.com/documents/florida/f...

http://www.law.fsu.edu/library/flsupct/SC92975/92975ini.pdf

read more »