County Criminal Court: CRIMINAL LAW Ė Search and Seizure Ė Evidence Ė Motion to suppress properly granted where police repeatedly demanded identification from the defendant, accompanied him into the house to retrieve his identification, seized the bag that contained the identification, and found marijuana inside the bag. Order granting defendantís motion to suppress affirmed. State v. Guivas, No. CRC 05-99 APANO, (Fla. 6th Cir. App. Ct. May 14, 2007).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

STATE OF FLORIDA

 

††††††††††† Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-99APANO

UCN522005AP000099XXXXCR

WILFREDO GUIVAS

 

††††††††††† Appellee.

__________________________/

 

Opinion filed ________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Patrick Caddell

 

Justin Peterson, Esq.

Assistant State Attorney

 

Brad Kandzer, Esq.

Assistant Public Defender

 

 

ORDER AND OPINION

 

††††††††††† (J. Morris)

 

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order of the Pinellas County Court granting the defendantís motion to suppress. After reviewing the briefs and record, this Court affirms the trial courtís decision.

††††††††††† Marijuana and paraphernalia were discovered in the defendantís house, and he was arrested and charged with possession. The trial court granted the defendantís motion to suppress as to the marijuana, but granted it as to the paraphernalia. The State is appealing the order.

††††††††††† The police received a call about an individual waving a gun outside a house. When the police arrived the defendant emerged from the house. The record does not reflect that there was anything threatening about the defendant or that he had a gun. In fact no one with a gun was ever found by the police at the house. Nevertheless, the police ordered the defendant to show his hands and get down on the ground. The defendant did not cooperate, so he was taken to the ground and handcuffed. This was clearly a detention. See State v. Gonzalez, 870 So.2d 200 (Fla. 3d DCA 2004). The record does not reflect sufficient grounds to detain the defendant. Since the detention was unlawful, any subsequent consent to search the defendantís house must be proved by clear and convincing evidence that the consent was not the product of the unlawful detention. Hicks v. State, 852 So.2d 954, 960 (Fla. 5th DCA 2003).

††††††††††† Although the trial court failed to make any factual finding or include any reasoning in its written opinion, a review of the record reveals that the trial court believed that a sweep of the house was justified under the circumstances. The sweep did not reveal anyone with a weapon in the house. The police, however, went inside the house a second time when they accompanied the defendant into the house to get his identification. It was during the second trip that the police observed marijuana in plain view in an ashtray on the kitchen table. The trial court found this evidence should not be suppressed.[1] What was not in plain view, however, was the marijuana paraphernalia. That was located inside a bag in one of the rooms. The trial court believed that this evidence had to be suppressed because the defendant was coerced into leading the officers to the bag. The record shows that the police repeatedly demanded that the defendant show them his identification. The defendant told them that it was inside the house, but that he would take them to get it. The police informed the defendant that they had to accompany him. When the defendant retrieved the bag, the police investigated its contents before allowing the defendant to reach into the bag to get his identification. It is at that time the police discovered the paraphernalia.

††††††††††† The State contends that the search was proper because the defendant gave his consent. In support of its position the State cites State v. Wise, 356 So.2d 302 (Fla. 2d DCA 1978). In Wise, the police were asked by a shirtless defendant immediately after his arrest to go into a bedroom and get a shirt for him. In the process of getting the shirt, the police noticed marijuana in plain view. The appellate court reversed the trial courtís suppression of the evidence, finding that one who initiates and invites a search cannot thereafter object to it or any items discovered as a result of the search.

††††††††††† The Wise case, however, is distinguishable from the case at bar. In Wise, it was the defendant who initiated the request to enter the house. In contrast, in the case at bar it was the police who were demanding identification from the defendant. The defendant testified that he did not believe he could refuse the demands, so he told the police that his identification was inside the house, and that he would take them to retrieve it. The police informed him they would accompany him. This was all while the defendant was handcuffed. Under these circumstances, it cannot be said either that the defendant initiated the entrance into the house. Neither did the State demonstrate by clear and convincing evidence that the defendantís consent for the police to enter was not the product of the unlawful detention. Furthermore, there were no exigent circumstances that permitted the police to enter the house. The police had already conducted a protective sweep of the house; there was no need to enter the house just to get the defendantís identification. The police were detaining the defendant without justification. Therefore, the trial courtís decision to grant the defendantís motion to suppress was proper. Accordingly, the decision of the trial court is affirmed.

††††††††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to suppress is affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of April, 2007.

_______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

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

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

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

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene H. Sullivan

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

 

cc:††††††† Public Defender

 

††††††††††† State Attorney

 

††††††††††† Judge Caddell

 

 

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††††††††††††††† †††††††††††††††††††††††††††††††††††

 

 

 

 

 



[1] This Court notes the defendant pleaded no contest to the possession of marijuana charges, and has not filed a cross-appeal.