County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Evidence --- Trial courtís order suppressing all statements made because of an unauthorized arrest, even those made pre-arrest, went too far. Order suppressing evidence reversed. State v. McGinnis, No. CRC 07-64 APANO ( Fla. 6th Cir.App.Ct. May 31, 2008).














††††††††††† Appellant,


v.                                                                                                                                          Appeal No. CRC 07-64 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††UCN522007AP000064XXXXCR



††††††††††† Appellee.




Opinion filed __________________.


Appeal from a decision of the

Pinellas County Court

County Judge James V. Pierce


Max Eggleston, Esquire

Assistant State Attorney


Steven Feger, Esquire

Assistant Public Defender





††††††††††† THIS MATTER is before the Court on the Stateís appeal from a decision entered by the Pinellas County Court granting the defendantís motion to suppress. After reviewing the briefs and record, this Court reverses the decision of the trial court.


††††††††††† A deputy discovered a suspect, the defendant, had a suspended license. Before the deputy could apprehend the defendant, however, the defendant had driven elsewhere. Over the next week the deputy made numerous attempts to locate the defendant, but was unsuccessful. Ultimately, the deputy, along with two other deputies, went to the defendantís house. The defendant agreed to talk with the deputy, was read his Miranda rights, voluntarily waived those rights, and spoke with the deputy. He admitted that his driverís license was suspended because of an unpaid ticket, lack of insurance, and failure to pay child support. At that point the deputy told the defendant he was going to be arrested; he then escorted the defendant to his patrol car and handcuffed him. The deputies, however, were not authorized to arrest the defendant. ß901.15(1), Fla. Stat. (2007) says that a suspect can only be arrested for a misdemeanor if a law enforcement officer actually sees the crime committed in his or her presence and makes the arrest immediately or in fresh pursuit. If the officer does not arrest the suspect immediately upon seeing the crime or in fresh pursuit, then the arrest is not authorized. In the case at bar, the defendant was not arrested immediately upon commission of the misdemeanor; therefore, the arrest was not authorized. [1]Accordingly, the trial court granted the defendantís motion to suppress.

Issue properly preserved


††††††††††† The State contends the trial courtís order granting the defendantís motion to suppress went too far because it suppressed not just the statements made after the arrest

--- which the State does not, in this appeal, contend was proper --- but those made before the arrest. The defendant contends the State failed to preserve the issue for appellate review because it never made the specific legal argument to the trial court that it is now raising in this appeal. To be preserved for further review by an appellate court, an issue must be presented to the lower court and the specific legal argument must be part of that presentation if it is to be properly preserved. Sunset Harbour Condominium Assoc. v. Robbins, 914 So.2d 925 (Fla. 2005); I.R.C. v. State, 968 So.2d 583 (Fla. 2d DCA 2007); ß924.051(1)(b), Fla. Stat. (2007).

††††††††††† Although the argument was not as detailed as the argument now raised on appeal, the State did contest that the defendant was not immediately arrested. This was sufficient, if barely, to preserve the issue for appellate review.


Standard of Review



††††††††††† Having determined that the State preserved the issue for appellate review, this Court notes that our review of the trial courtís ruling on a motion to suppress evidence is a mixed question of law and fact. We accord a presumption of correctness to the trial courtís determination of facts if the factual findings are supported by competent, substantial evidence. We review, however, the trial courtís application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Conner v. State, 803 So.2d 598 (Fla. 2001); State v. Pruitt, 967 So.2d 1021 (Fla. 2d DCA 2007).



††††††††††† The trial courtís order does not note when the arrest took place. The order, however, suppressed all of the statements the defendant made. Therefore, the trial courtís ruling necessarily involves at least an implicit finding that the arrest occurred immediately upon law enforcementís contact with the defendant. If the trial court had determined that the arrest had occurred later, then the trial courtís decision would have been error because only statements made before the arrest should have been suppressed. An admission occurring prior to arrest is unaffected by the questioned legality of the later arrest, since the circumstances surrounding the admission must be improper at the time the statement is made to support its suppression. See State v. Cahill, 388 So.2d 354 (Fla. 2d DCA 1980).

††††††††††† The issue, therefore, is whether or not the defendant was arrested before or after he made the admissions that are the subject of this appeal. The elements of an arrest comprehend a purpose or intention to effect an arrest under a real or pretended authority, the actual or constructive seizure or detention of the person to be arrested by the one having the present power to control him, communication by the arresting officer to the one whose arrest is sought of his intention or purpose then and there to make an arrest, and an understanding by the person who is to be arrested that it is the intention of the arresting officer then and there to arrest and detain him. Canney v. State, 298 So.2d 495 (Fla. 2d DCA 1973); Melton v. State, 75 So.2d 291 (Fla. 1954).

††††††††††† The deputies were all adamant that the defendant was not under arrest at the time he made the admissions. The evidence was that the deputies went to the defendantís house and he voluntarily agreed to speak with them. It was after the admissions were made to the deputies that the defendant was taken into custody, taken to the cruiser, and handcuffed. It was only at that point that the defendant was arrested. See Johnson v. State, 813 So.2d 1027 (Fla. 3d DCA 2002). Clearly, the admissions that are the subject of this appeal were made to the deputies before the arrest.





††††††††††† This Court agrees with the State that the trial courtís order went too far in suppressing all of the statements the defendant made to the deputies. Only those statements made after the improper arrest should have been suppressed. Those statements voluntarily made to the deputies before the arrest should not have been suppressed.

††††††††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to suppress is reversed as to any evidence suppressed before the arrest.

††††††††††† DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of May, 2008.


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Judge Michael F. Andrews

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




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Judge Raymond O. Gross†††††††††††††††††† ††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge





††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Judge R. Timothy Peters

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


cc:††††††† Office of the State Attorney


††††††††††† Office of the Public Defender


††††††††††† Honorable James V. Pierce



[1] The Stateís argument that the defendant did not actually commit the misdemeanor until he admitted knowing his driverís license was suspended is without merit.