County Criminal Court:  CRIMINAL LAW – Traffic Stop – trial court erred in granting motion to suppress-driver’s consent to search provided for legal detention- finding of marijuana during the consent search provided  officer probable cause to search the rest of the vehicle, including appellee’s knapsack on the rear seat of the vehicle.  Order reversed.   State v. Castles,  No. 0300329CFAES (Fla. 6th Cir. App. Ct. July 31, 2006).  

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

 

STATE OF FLORIDA,     

                        Appellant,

v.

 

PETER S. CASTLES,                                                  Case No: 0300329CFAES

                        Appellee.                                              Lower No: 0202627MMAES 

________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole

 

C. Marie King, A.S.A.  

for Appellant

 

John a. Shahan, Esq.   

for Appellee

 

 

ORDER AND OPINION

 

            On April 27, 2002, appellee was arrested for Possession of Marijuana and Possession of Paraphernalia. On December 10, 2002, the trial court heard appellee's Motion to Suppress.  An Order Granting Motion to Suppress was entered on January 7, 2003, and the state filed a Notice of Appeal.   This Court reverses the decision of the trial court.

            At the hearing, Deputy Frederico testified that he was on duty on April 25, 2002, in a fully marked patrol vehicle, working in the area of Festival Park, in reference to Livestock. He explained that he made a stop that night because as he was traveling southbound on U.S. 301, near Festival Park, he observed a travel trailer being towed by an Isuzu SUV.  He testified that he observed that the travel trailer had no lit or illuminated taillights whatsoever, that the back of the trailer was completely dark.  Frederico testified that he conducted a stop.  The deputy recalled two people in the vehicle.  When he approached the driver, the driver told him his name was Austin Alderman.  Frederico explained that upon his initial approach, he advised the driver the reason for his stop. He alerted him to the taillights, and asked him for his license, registration, and proof of insurance. The deputy testified that he did write him a citation for the taillights.  The deputy was then asked "[a]nd after you gave him the citation, did you tell Mr. Alderman that he was free to leave?" and the deputy replied "I did, sir.  I asked him to come back to my vehicle, as is customary.  I explained the citation to him, why I was giving it to him, and that he had a certain amount of time to fix the lights and so forth. ...I obtained his signature, returned all his property to him, including all his documents and a copy of the citation, advised him our business was finished and he was free to go." The deputy went on to testify "[a]fter he began his initial approach back to his vehicle, I asked him if I may speak to him again and inquired if he had any contraband in the vehicle--specifically, large amounts of currency, illegal narcotics or firearms"  and that the driver responded that he did not.  The deputy stated that he then asked the driver if he minded if he searched the vehicle and the driver advised that he may search the vehicle and he did not have anything to hide.

The deputy testified that he then began to search the vehicle.  He was asked if he asked the passenger to step outside of the vehicle as he conducted his search. The deputy testified that "[a]t some point, the passenger was outside of the vehicle. I don't recall if it was that specific moment or not, but it is customary when I do a vehicle search--when anyone does a vehicle search-- that you wouldn't have anyone sitting in the vehicle at the time." When asked what the search revealed, Deputy Frederico testified "[s]pecifically related to narcotics, I found three clear, plastic bags located under the driver's seat.  Inside one of those plastic bags I located what I believed to be a small marijuana flake." He testified that he performed a field presumptive test on the flake, using the agency-issued field presumptive, and it tested positive for THC or marijuana.  Deputy Frederico went on to testify that after the leaf tested positive, he spoke to the driver and explained to him what he had found.  He stated "[a]t that point, since I  had found the plastic bags under the driver's seat, my focus was with the driver at that point."  He testified that he had showed the driver the field presumptive test and explained to him that he found a small amount of marijuana in the vehicle. The deputy was asked if he had occasion to contact a K-9 unit and he testified that he did. 

Frederico testified that the K-9 unit arrived probably within 10 to 15 minutes of his call.  The deputy explained that when the K-9 unit arrived, he spoke to the sergeant and explained to him the facts and circumstances.  At that point, the sergeant spoke to the driver and gained consent. The deputy testified that the K-9 then did an open air sniff of the vehicle the dog alerted to a black knapsack that was located in the rear of the vehicle. Frederico stated that after asking both the driver and the appellee who owned the knapsack, the appellee advised that it was his property.

On cross examination, the deputy testified that the traffic citation was complete after the driver signed the ticket and the deputy returned his license and registration back to him. The deputy testified that he did not smell marijuana at that time and his business was done as far as the traffic offense was concerned. He was asked if he was sure he told the driver he was free to leave and the deputy responded that he was "very sure" of what he did.  He was asked "Okay. And even though you say in your report and you say under oath, you told him he was free to leave, then you went back to him and asked him for consent to search the vehicle, correct?" and the deputy replied he did. The officer then said "[t]hat consent has to be given willingly and that person has to be free to go.  And that is specifically what we do on a daily basis." The deputy acknowledged that in between the time he gave him the ticket and the time he told him he was free to go, he saw no criminal activity.  Counsel stated "[a]fter you gave the ticket and after my client's driver signed that ticket, you saw no crime, did you?" and the deputy replied "[n]o."

After argument the court took it under advisement. On January 7, 2003, the trial court entered an Order granting appellee's motion to suppress. After reciting the facts[1], the court made the following findings:

The case law is very clear that continued detention, once the officer accomplishes the purpose of the traffic stop is illegal.

 

                        Bozeman v. State  603 So2nd 585 (2 DCA, 1992)

                        Thomas v. State 614 So2nd 468 (FLA 1993)

                        Cresswell v. State  564 So2nd 480 (FLA 1990)

                        Maxwell v. State 785 So2nd 1277 (5 DCA, 2001)

 

This Court finds, as the trier of fact, that the actions of the armed uniformed  deputy who had just exercised his power by giving the defendant a traffic citation, in engaging the defendant in conversation which had nothing whatsoever to do with the purpose of the traffic stop was an unlawful detention after the purpose of  the traffic stop was accomplished.

 

You have to wonder how [many] citizens that the Courts don't see are put upon in this manner as the continued theme on these kinds of cases exactly fit the scenario of this case.

 

A ruling on a motion to suppress presents a mixed question of law and fact. Ornelas v. United States, 116 S.Ct. 1657 (1996). Deference is given to the trial court's factual findings, but the application of the law to the facts is reviewed de novo. Id. at 699, 116 S.Ct. 1657. 

While the cases cited by the trial court in its Order suppressing the evidence all address the continued illegal detention during a search, [2] none of the cases deal with the central issue here, which is the issue of the driver’s consent to search the vehicle. Here, the record reveals that there was a valid traffic stop.  The deputy testified that he explained the citation to the driver, obtained his signature, returned all of his property to him, and advised him their business was finished and he was free to go.  Deputy Frederico then testified that as the driver made his initial approach back to his vehicle, he asked for and gained consent to search the vehicle.

While we appreciate the trial court’s frustration and concern for the procedures used by the officer in this case, this Court finds the detention of the driver and his passenger legal because the driver consented to a search of the vehicle.  [3]  Thus, it is the consent in this case, which provides for a legal detention.   State v. Cromatie, 668 So. 2d 1075 (Fla. 2d DCA 1996)(during a legal traffic stop an officer can ask for consent to search a vehicle).  A detention may lawfully continue if the driver has freely and voluntarily given consent to a search of himself or the vehicle.  State v. Kindle,  782 So. 2d 971 (Fla. 5th 2001).  Accordingly, Deputy Frederico’s finding of marijuana during the consent search provided  him probable cause to search the rest of the vehicle, including appellee’s knapsack on the rear seat of the vehicle.  See U.S. v. Ross, 102 S.Ct. 2157 (1982); State v. Betz, 815 So. 2d 626 (Fla. 2002). .

IT IS THEREFORE ORDERED that the judgment is REVERSED.  

            DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  July,  2006.

 

                                                                                    ___________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

Copies to:

County Judge Robert P. Cole

C. Marie King, A.S.A. 

John a. Shahan, Esq.  

 


[1] The Order incorrectly refers to the defendant as the driver.

[2] Bozeman v. State,  603 So.2d 585 (Fla. 2d  DCA 1992);   Thomas v. State,  614 So. 2d 468 (Fla. 1993)

   Cresswell v. State , 564 So. 2d 480 (Fla. 1990);  Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA  2001).

 

[3] This Court will not address the issue of standing as it was not raised below and therefore not preserved for review.