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.
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
v. Appeal No. CRC 06-22 APANO
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
MATTER is before the Court on the defendant, Michael Milford’s, appeal from a
judgment and sentence entered by the
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
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 (
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 (
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.
Finally, the Florida Supreme Court noted that the officer “did not retain Golphin’s
identification while seeking consent to search his person or
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
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.”
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.
AND ORDERED in Chambers in
David A. Demers
Robert J. Morris, Jr.
Irene H. Sullivan
cc: State Attorney