County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Evidence --- Trial court’s 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).

 

 

 

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 07-64 APANO

                                                                       UCN522007AP000064XXXXCR

JAMES MCGINNIS

 

            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

 

ORDER AND OPINION

 

 

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

Facts

            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 defendant’s 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 driver’s 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. §901.15(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 defendant’s motion to suppress.

Issue properly preserved

 

            The State contends the trial court’s order granting the defendant’s 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); §924.051(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 court’s ruling on a motion to suppress evidence is a mixed question of law and fact. We accord a presumption of correctness to the trial court’s determination of facts if the factual findings are supported by competent, substantial evidence. We review, however, the trial court’s 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).

Analysis

 

            The trial court’s order does not note when the arrest took place. The order, however, suppressed all of the statements the defendant made. Therefore, the trial court’s ruling necessarily involves at least an implicit finding that the arrest occurred immediately upon law enforcement’s contact with the defendant. If the trial court had determined that the arrest had occurred later, then the trial court’s 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 defendant’s 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.

 

 

Conclusion

 

            This Court agrees with the State that the trial court’s 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 defendant’s 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 State’s argument that the defendant did not actually commit the misdemeanor until he admitted knowing his driver’s license was suspended is without merit.