County Criminal Court : CRIMINAL LAW – Search and Seizure --- Evidence --- trial court erred in denying motion to suppress - Since the defendant was neither under arrest or lawfully detained at the time he provided officer with a false name, he could not have been lawfully arrested- the search, pursuant to the defendant’s improper arrest was, in turn, improper and the evidence seized in the course of said search must be suppressed.  Order Denying Motion to Suppress reversed.  Wilson  v. State, No. CRC 08-00025CFAES (Fla. 6th Cir. App. Ct. January 5, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

DOUGLAS WILSON,

 

        Appellant,

 

v.                                             Circuit Appeal No.08-00025-CFAES

                                                UCN:  512008CF000025A000ES

                                                County Misd. No.  06-8678-MMAES

 

STATE OF FLORIDA,

        Appellee.

_________________________________/

 

 

ORDER

 

        We reverse the lower court’s order denying the appellant’s Motion to Suppress evidence.  The facts of this case are relatively straightforward.  Deputy Cabbage of the Pasco County Sheriff’s office lawfully stopped a car in which the defendant was one of two passengers.  During the course of the traffic stop, Deputy Cabbage learned that the driver of the car did not have a valid driver’s license.  Ultimately the officer cited the driver for that offense.  During the traffic stop, Deputy Cabbage asked the defendant his name and the defendant gave him a false name.  At the time the officer asked the defendant for his name and at the time the defendant gave a false name, the defendant was not under arrest.  Subsequent to the defendant providing a false name, Deputy Cabbage obtained consent to search the vehicle from the driver.  After receiving consent to search the vehicle from the driver, Deputy Cabbage got the defendant out of the car and informed him that he was being detained for providing false information to an officer.  At this point the defendant was arrested for providing false information to an officer and was handcuffed.  In response to Deputy Cabbage’s questioning, the defendant admitted having a pocket knife on his person.  There is no evidence in the record that the knife in question was anything other than a common pocketknife.  Deputy Cabbage then proceeded to conduct a pat down search of the defendant’s body and discovered brass knuckles in the defendant’s rear pocket.  The defendant’s motion to suppress the brass knuckles in question was denied in the trial court.

 

        The law is clear that “… in order to be in violation of the statute, the giving of a false name or identification must occur following arrest or lawful detention.”  Brevick v. State, 965 So.2d 1246 (Fla. 5th DCA 2007), citing Whyte v. State, 940 So.2d 1174 (Fla. 2nd DCA 2006).   Clearly, the defendant was not under arrest at the time he gave a false name to Deputy Cabbage.  Therefore, in order to justify the officer’s search of the defendant incident to his arrest, the defendant must have been lawfully detained at the time he gave a false name to the officer.  In asserting that the defendant was lawfully detained, the state relies upon Cromatie v. State, 668 So.2d 1075 (Fla. 2nd DCA 1996).    The State’s reliance upon Cromatie is misplaced.  While Cro-

matie does stand for the proposition that a passenger may be lawfully and briefly detained following the driver’s consent to search a vehicle, the defendant in the instant case provided the false name upon which his arrest was based prior to the driver’s consent for a search of the vehicle.  Furthermore, it is clear that Deputy Cabbage had made the determination to arrest the defendant prior to the time the driver of the vehicle consented to a search of the vehicle.  Since the defendant was neither under arrest or lawfully detained at the time he provided Deputy Cabbage with a false name, he could not have been lawfully arrested for Providing a False Name to a Law Enforcement Officer.  It then follows than the search pursuant to the defendant’s improper arrest was, in turn, improper and the evidence seized in the course of said search must be suppressed.

 

        DONE AND ORDERED in chambers in New Port Richey, Pasco County, Florida this ____ day of December, 2008.

 

 

                                                                __________________

                                                                W. Lowell Bray, Jr.

Primary Appellate Judge

 

                                                                __________________

                                                                Daniel Diskey

                                                                Appellate Judge

 

                                                                __________________

                                                                Stanley R. Mills

                                                                Appellate Judge

                                                               

 

 

Copies furnished to:

Angela Sarabia, Esq., Assistant State Attorney

Joy Goodyear, Esq., Assistant Public Defender