County Criminal Court: CRIMINAL LAW- Search and Seizure- Stop- Officerís observations of the defendant with open alcohol in a city part provided sufficient justification for the officers to continue the investigation of the defendant.Glover v. State No.: 03-16APANO (Fla. 6th Cir. App. Ct. April 3, 2003).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

 

CARLOS GLOVER,

††††††††††† Appellant,

 

 

vs.†††††††††††††††††††††††††††††††††††††††††††††††††††††† APPEAL NO.: 02-10047CFANO

 

 

STATE OF FLORIDA,

††††††††††† Appellee.

___________________________/

 

 

Opinion filed: _______________

 

 

Appeal from Order Denying Defendantís Motion to Suppress

Pinellas County Court

County Judge Thomas B. Freeman

 

John Swisher

Attorney for Appellant

 

Angela Santana-Chapin

Assistant State Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

 

††††††††††† THIS MATTER is before the Court upon the defendantís appeal of the trial courtís Order denying the Defendantís Motion to Suppress.After reviewing the briefs and record, this Court affirms the trial courtís decision.

††††††††††† On January 6, 2001, Officer Blaine Dufrain with the St. Petersburg Police Department was dispatched as a back up unit in response to an anonymous call that a male and female sitting underneath one of the picnic shelters in Williams Park were selling drugs.Officer Dufrain testified that he and Officer Thomas arrived at approximately the same time, each in their own marked patrol cars.As the officer pulled up to the area, he observed a male and female under a picnic shelter.Officer Dufrain testified that as he walked up to the individuals, he observed that the defendant had an open beer, which is against the city ordinance for that area.As the officer spoke with the two individuals, Officer Thomas ran a warrants check on the defendant which revealed that the defendant was on probation for armed robbery.Officer Dufrain testified that Officer Thomas asked the defendant to stand up in order for Officer Thomas to pat down the defendant for weapons for officer safety.As the defendant stood up, a baggie of marijuana fell from the defendantís lap.The trial court denied the Motion to Suppress stating ďThe officers had the perfect right to walk up to him since he was in a city park.Thereís no indication in this testimony from him or the officer, that they did anything except walk up to him, see an open container of alcohol, and start processing him for the investigation of open container of alcohol in a city park and the marijuana fell out.Ē

††††††††††† ďAppellate review of a motion to suppress involves questions of both law and fact and the appellate court must make a de novo review of the trial courtís application of the law to the facts.ĒRosenquiest v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).Furthermore, ďa ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.ĒJohnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978).

††††††††††† The defendant argues that the trial court erred in denying the Motion to Suppress as the anonymous call was not corroborated by the officersí observations.The officers did not observe a sale of marijuana, nor did the informant indicate that the defendant was drinking.The defendant further argues that since he was not free to leave, the order by the officer to stand was improper and the marijuana that fell from his lap should be suppressed.Finally, the defendant states that the stop was transformed from an encounter to a Terry stop when the defendant was requested to stand and that the officers did not have sufficient reliable evidence to conduct a Terry stop.The defendant argues that at no time did the officers indicate to the defendant that he was not allowed to have an open container.

††††††††††† This Court agrees with the trial courtís denial of the Motion to Suppress.The officers responded to an anonymous tip and their observations of the defendant with the open alcohol in the city park provided sufficient justification for the officers to continue the investigation of the defendant.Chappell v. State, 28 Fla. L. Weekly D592 (Fla. 5th DCA February 28, 2003); see also State v. Hunter, 615 So.2d 727 (Fla. 5th DCA 1993) (holding that the court must assess the totality of the circumstances known to the law enforcement officer and determine whether an experienced law enforcement officer could draw inferences and make deductions that would raise a suspicion that the individual being stopped was engaged in wrongdoing.).The request by the officer for the defendant to stand and allow the officer to pat down the defendant for officer safety was reasonable.Additionally, the officer had authorization to arrest the defendant for a violation of the city ordinance.See Thomas v. State, 583 So.2d 336 (Fla. 5th DCA 1991) (law enforcement officer has authority to arrest a person who violates a city ordinance in the officerís presence).It is therefore

††††††††††† ORDERED AND ADJUDGED that the trial courtís Order denying the Defendantís Motion to Suppress is affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ________ day of ______________, 20003.

 

 

 

 

________________________________

JOHN A. SCHAEFER

Primary Appellate

Circuit Judge

 

 

 

________________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

 

________________________________

NANCY MOATE LEY

Circuit Judge

 

Copies furnished to:

 

Judge Thomas B. Freeman

 

John Swisher

Attorney for Appellant

 

Angela Santana-Chapin

Assistant State Attorney

Attorney for Appellee