County Criminal Court: CRIMINAL LAW Ė Search and seizure Ė Stop Ė Defendantís handcuffing justified when he failed to stop for over five blocks after being told to stop by a police officer, and defendant made a furtive movement just before he got out of his car. Judgment and sentence affirmed. Morand v. State, No. CRC 04-1 APANO, (Fla. 6th Cir.App.Ct. May 25, 2005).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

SYLTICO MORAND

 

††††††††††† Appellant,

 

Appeal No. CRC 04-1 APANO

UCN522004AP000001XXXXCR

v.

 

STATE OF FLORIDA

 

††††††††††† Appellee.

_____________________________/

 

Opinion filed _________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Shawn Crane

 

Bryan Hannan, Esq.

Assistant Public Defender

 

C. Marie King, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendantís appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

††††††††††† The defendant was convicted following a jury trial of possession of marijuana. He is appealing the trial courtís denial of his motion to suppress, and also claims that his motion for judgment of acquittal should have been granted.

††††††††††† The police attempted to stop the defendant because his car stereo was too loud. The officer activated his overhead lights and put on his siren. Instead of stopping, however, the defendant continued to drive for five blocks. During this time the police officer activated his lights and siren two more times. The defendant was aware that the police wanted him to stop, but he insisted on stopping when and where he decided. The defendant yelled to the officer that he was pulling over on the south side of the road. Upon stopping, the officer observed the defendant open the door and make a furtive movement towards the door panel. The officer got the defendant out of the car, handcuffed him, and took him to the cruiser. During this process, another officer observed marijuana in plain view in the panel of the driverís door. The defendant was charged with possession of marijuana.

††††††††††† The defendant argues that his motion to suppress should have been granted. It seems the defendant is arguing that his handcuffing was premature. The defendant appears to concede that he could have been stopped by the police for playing his stereo too loud, but contends the officer exceeded his authority in handcuffing him. He argues that all evidence discovered subsequent to the handcuffing must be suppressed. This Court does not agree with that conclusion.

A trial courtís determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review. Ornelas v. United States, 517 U.S. 690 1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997). ďAppellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial courtís application of the law to the facts.Ē Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).

The officer who stopped the defendant testified that he believed the defendantís refusal to immediately pull over, and his five-block continuation of his driving, indicated that the defendant was a flight risk. In addition, the officer testified that he observed the defendantís furtive hand movement just before the defendant got out of his car, and that this raised his suspicions about the defendant. For these reasons, the officer testified that he handcuffed the defendant. It is this Courtís view that the defendantís behavior just prior to being stopped justified the officerís actions. A reasonable officer could very well conclude that the defendant was actually fleeing and eluding. The fact that the defendant was not actually charged with that crime does not alter the analysis.

As for the motion for judgment of acquittal, the trial court was correct to deny it.The standard of review on this issue is de novo. Tibbs v. State, 397 So.2d 1120 (Fla. 1981). In moving for a judgment of acquittal, the defendant admits not only the facts in evidence, but also every reasonable conclusion favorable to the State that the jury might infer from the evidence. State v. Odom, 862 So.2d 56 (Fla. 2d DCA 2003). The court must determine whether or not there was evidence from which the jury could infer guilt to the exclusion of all other inferences.A review of the record reveals that there was ample evidence from which a jury could infer that the defendant was guilty of the possession of marijuana. The most glaring evidence was one of the officerís testimony that when pulled over the defendant stated: ďWe were rolling a blunt when you got behind us, thatís all.Ē The officer explained that a ďbluntĒ was a term for marijuana rolled into a cigar. The defendantís admission is sufficient evidence from which a jury could find guilt. See T.R.W. v. State, 732 So.2d 466 (Fla. 2d DCA 1999). Also, there was the defendantís furtive hand movement in the same location as where the marijuana was found and his initial fleeing from the police. From any part of this evidence the jury could infer that the defendant was guilty of possession of marijuana. Therefore, the trial court properly denied the defendantís motion for judgment of acquittal.

IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida

this _____ day of May, 2005.

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† __________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Nancy Moate Ley

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† __________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† R. Timothy Peters

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† John A. Schaefer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

cc:††† State Attorney

 

††††††† Public Defender

 

†††††††† Judge Crane