County Criminal Court: CRIMINAL LAW Ė Search and Seizure Ė Evidence Ė

Evidence must be suppressed where police officer intruded into defendantís vehicle and seized bottle before he had opportunity to reasonably determine it contained contraband. Order granting defendantís motion to suppress affirmed. State v. Wallace, No. CRC 06-91 APANO (Fla. 6th Cir. App. Ct. December 19, 2007).













††††††††††† Appellant,


v.                                                                                                                                           Appeal No. CRC 06-91 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††† UCN522006AP000091XXXXCR



††††††††††† Appellee.



Opinion filed _________________.


Appeal from a decision of the

Pinellas County Court

County Judge Patrick K. Caddell


Kate A. Alexander, Esquire

Assistant State Attorney



††††††††††† (J. Gross)


††††††††††† THIS MATTER is before the Court on the Stateís appeal from a decision of the Pinellas County Court granting the defendantís motion to suppress. After reviewing the brief and record --- no answer brief was filed --- this Court affirms the decision of the trial court.

††††††††††† When reviewing a motion to suppress, the standard of review of the trial courtís application of the law to the facts is de novo; however, a reviewing court must defer to the factual findings of the trial court if they are supported by competent, substantial evidence. Bautista v. State, 902 So.2d 312 (Fla. 2d DCA 2005). The trial courtís ruling is clothed with a presumption of correctness, and an appellate court ďmust interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial courtís ruling.Ē Pagan v. State, 830 So.2d 792, 806 (Fla. 2002).

††††††††††† The police were summoned to a residence for a domestic disturbance. When the officer arrived, he was met by the defendant who told the officer that her boyfriend had damaged her driverís side mirror. She took the officer to her vehicle to show him the damage. The driverís side door was open, and the officer was standing in the door frame checking the damage, when he noticed on the driverís seat a translucent, brown pill bottle with a sticker on it facing toward him. According to the officerís testimony, as he bent over for a closer look at the bottle, he thought: ďthatís not what I think it is,Ē alluding to his belief that the bottle contained marijuana. The officer then picked up the bottle, opened it, and discovered it contained marijuana. The officer also testified on cross-examination that he could see marijuana in the bottle once he bent down for a closer look. He was unable to say if he actually went through the opening of the door in order to see the bottle more closely.

††††††††††† The trial court failed to make findings of fact in its written order. And a review of the transcript does not give any indication of the trial courtís reasoning. Given this record, it is difficult for this reviewing Court to determine why the trial court ruled as it did. There are, however, sufficient inferences from the facts to support the trial courtís ruling. It may be that the trial court did not find the officerís testimony to be credible that he could see marijuana in a brown bottle with a sticker on it. Or it may be that the trial court concluded that the officerís testimony was too contradictory about when he actually saw the marijuana. The officerís statement: ďthatís not what I think it is,Ē is unclear. Did it mean that he could see marijuana inside the bottle and seized it, or did it mean he suspected marijuana might be in the bottle and picked it up to see? The trial court was free to decide which interpretation to give to the officerís statement. Or it may be that the trial court decided that the officer needed to enter the car before he could actually see any marijuana in the bottle, and that the officer had no right to enter the car. The trial court could have taken any of these inferences from the facts. If so, they would justify the suppression of the evidence. Therefore, given the standard of review in this particular fact-oriented case, 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 Clearwater, Pinellas County, this _____ day of December, 2007.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________

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

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Raymond O. Gross

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

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

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge

cc:††††††† Vivian Wallace

††††††††††† Honorable Patrick K. Caddell

††††††††††† Office of the State Attorney