County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Search of defendant improper where one deputy took defendant’s identification away for several minutes and two other deputies confronted defendant and asked to search him after having improperly searched defendant’s companion. State failed to demonstrate consent to search was consensual. Judgment and sentence reversed. Milford v. State, No. CRC 06-22 APANO, (Fla. 6th Cir. App. Ct. April 19, 2007).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL

CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

 

MICHAEL B.  MILFORD      

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 06-22 APANO

      UCN522006AP00022XXXXCR

STATE OF FLORIDA

 

            Appellee.

_________________________________/

 

Opinion filed __________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Edwin Jagger, Esq.

 

Dwight Wolfe, Esq.

Assistant Public Defender

 

Andrew Taylor, Esq.

Assistant State Attorney

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the defendant, Michael Milford’s, appeal from a judgment and sentence entered by the Pinellas County Court. The defendant entered a no contest plea to charges of possession of marijuana and paraphernalia. He reserved his right to appeal the denial of his motion to suppress. After reviewing the briefs and record, this Court reverses the decision of the trial court.

            At approximately midnight a sheriff’s deputy observed three individuals, including the defendant, in a parking lot of a gasoline station approaching a pay phone. Once they observed the deputy, they all immediately turned in the opposite direction and started to walk away. The deputy was curious why they were there at that time, so he pulled his cruiser about 75 yards from them and waited for the individuals to approach closer to him. When they moved closer the deputy approached the individuals and began asking them questions. The deputy noticed the individuals had bloodshot and watery eyes and were nervous, so he asked the individuals to voluntarily empty their pockets and give him their identification.

At that time, which was five to ten minutes after the deputy first made contact with the individuals, two other deputies arrived on the scene and approached the individuals. The first deputy had taken the identification and had gone fifteen feet back to his cruiser to run checks on the identifications. The deputy had the identifications at his cruiser for a period of time from several to fifteen minutes. During that time the other two deputies had patted down one of the individuals, finding marijuana on him. This search was done even though the individual had initially resisted the search by explaining that the first deputy had already searched them. At that point, according to the first deputy, none of the individuals were then free to leave. The deputies then asked the defendant if he had any contraband, and the defendant admitted he did. Contraband was found on the defendant, and he was arrested and charged with possession of marijuana and paraphernalia. Denial of the motion to suppress the statement and contraband is the subject of this appeal.

The trial court’s ruling on a motion to suppress is a mixed question of law and fact. A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, if those findings are supported by the record. However, a suppression order, such as the one in the case at bar, that turns on an issue of law or the application of the facts to the law is subject to de novo review. Ornelas v. State, 517 U.S. 690 (1996); State v. Baldwin, 686 So.2d 682 (Fla. 1st DCA 1996).

The State does not contend that the deputies had a reasonable suspicion that the defendant had or was about to commit a crime. Instead, the State contends that the deputies approached the defendant and he voluntarily admitted having contraband and allowed them to search him. Both the confession and the results of the search, however, are subject to suppression if they were the product of improper police conduct.

 In Howell v. State, 725 So.2d 429 (Fla. 2d DCA 1999), the court found that the defendant admitted having a gun only after he witnessed a pat-down search of some of his fellow passengers and as the police were approaching him to pat him down. The court concluded that the incriminating statement was the product of an imminent and unlawful pat-down search and only made in acquiescence to police authority. The court suppressed the evidence. Similarly, in the case at bar, the testimony was the defendant admitted having contraband only after seeing one of his fellow travelers improperly searched and as the police were approaching him for what he presumably believed was similar treatment. Pursuant to the holding in Howell, this Court must reverse the denial of the motion to suppress both the defendant’s statement and the results of the subsequent search.

            Moreover, although the initial encounter with the first deputy was consensual, based upon the totality of circumstances, the subsequent actions of the police transformed the encounter into a detention that had no lawful grounds. This is made clear by the recent decision in Golphin v. State,  945 So.2d 1174 (Fla. 2006), decided after the trial court entered its order. In Golphin, the Florida Supreme Court addressed a similar issue. What is most instructive is what the Golphin court said the case was not. The Florida Supreme Court noted that “[t]his is not a case in which Golphin was summoned to the presence of multiple officers, isolated by them in any way, or encountered in a way that he was not free to go.” In addition, the Golphin court noted that the officer:

did not remove herself from the immediate vicinity of Golphin, and indeed continued to talk with him throughout the course of the warrants check. There is no contention that the officer took possession of Golphin’s identification and separated herself from the location by returning to the police cruiser and closing the door behind her to conduct a warrants check, thereby effectively foreclosing his ability to request the return of his identification so that he could proceed on his way.

 

 Id. at 1188.

 

Finally, the Florida Supreme Court noted that the officer “did not retain Golphin’s

 

identification while seeking consent to search his person or effects.” Id.

 

            In many ways, the case at bar is what the Golphin court specifically said the Golphin case was not. In the case at bar, the defendant was faced with three deputies. Two of those deputies were confronting him, while the first deputy had taken the defendant’s identification fifteen feet away and was at his cruiser running the warrant check. Both the deputy who had the defendant’s identification and one of the deputies confronting the defendant testified that the defendant was not free to go. Indeed, under these circumstances no reasonable person would believe that he was free to leave; therefore the defendant was from that time on detained. See United States v. Mendenhall, 446 U.S. 544 (1980). Presumably, the defendant was also not free to go past the two deputies confronting him and ask for his identification back from the first deputy who was at his cruiser. Finally, it was while the first deputy had the defendant’s identification that the two deputies confronting the defendant searched his companion and asked for permission to search him. All of these factors are contrary to the situation in Golphin that was deemed a consensual encounter and virtually identical to the case of improper conduct described by the Florida Supreme Court.

            The Golphin court noted that: “[c]ertainly, we can conceive of circumstances where the retention of identification for the purpose of running a warrants check or other purposes, when viewed in the totality of the circumstances, might implicate the Fourth Amendment.” Id. at 1189. The case at bar is one of those circumstances.

            IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and this matter is remanded to the trial court with instructions to grant the motion to suppress.

            DONE AND ORDERED in Chambers in 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:        State Attorney

 

            Public Defender

 

            Judge Jagger