DeLorenzo v. State

921 So. 2d 873, 2006 WL 545596
CourtDistrict Court of Appeal of Florida
DecidedMarch 8, 2006
Docket4D04-3607
StatusPublished
Cited by19 cases

This text of 921 So. 2d 873 (DeLorenzo v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeLorenzo v. State, 921 So. 2d 873, 2006 WL 545596 (Fla. Ct. App. 2006).

Opinion

921 So.2d 873 (2006)

Ronald DELORENZO, Appellant,
v.
STATE of Florida, Appellee.

No. 4D04-3607.

District Court of Appeal of Florida, Fourth District.

March 8, 2006.

*874 Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

Ronald Delorenzo appeals from his conviction of possession of cocaine. Delorenzo *875 pleaded no contest to a charge of possession of cocaine while reserving his right to appeal the trial court's ruling on his motion to suppress. Delorenzo filed a motion to suppress arguing that the evidence was obtained as the result of an unlawful search. The motion was denied. The trial court ruled that the motion to suppress was dispositive. We reverse.

At the hearing on the motion to suppress, Officer Paul Vardakis was the only witness. He testified as to the events that occurred the night Delorenzo was arrested. At 3:30 in the morning, Vardakis saw a vehicle in a shopping center parking lot, with its motor running and all of its lights off and someone seated in the driver's seat. Vardakis wanted to make sure the individual was okay, so he approached the legally parked vehicle. Delorenzo's eyes were closed. Vardakis knocked on the window a couple of times which eventually awakened Delorenzo. Once Delorenzo realized Vardakis's presence, he put his hand in his right pocket. Vardakis testified that at that point he thought Delorenzo had a weapon or was trying to hide something. Vardakis repeatedly asked Delorenzo to take his hand out of his pocket. Vardakis testified that Delorenzo's digging was not leisurely, but very aggressive digging in his pocket, which raised Vardakis's suspicion. Delorenzo finally took his hand out of his pocket and then stepped out of the car.

During the hearing, Vardakis testified that he did not recall whether he asked Delorenzo to step out of the car. At his deposition, Vardakis stated that he asked Delorenzo to step out of the vehicle. On cross-examination, Vardakis was asked about this discrepancy. He testified that he could not recall which actually occurred. In its order, the trial court made a factual determination that Delorenzo stepped out of his car upon Vardakis's instruction to do so.

When Delorenzo stepped out of the car, he once again put his hand in his right pocket. Vardakis again directed Delorenzo to take his hand out of his pocket. Vardakis testified that Delorenzo had baggy, carpenter-type pants on and as a result, Vardakis could not see whether there was a bulge. Vardakis did not know whether Delorenzo had a weapon in his pocket and was concerned about his safety. After asking Delorenzo to remove his hand from his pocket, Vardakis asked Delorenzo to consent to a search for officer safety, to which Delorenzo agreed. Vardakis testified that the exchange was as follows: "do you mind if I search you, do you have any weapons on you, for my safety, he said sure." Then Delorenzo stated, "I just have money and matches in my pockets." Vardakis testified that Delorenzo knew he was referring to his pockets. Instead of doing a "pat down," Vardakis proceeded to search Delorenzo, pulling out a pack of matches. As the matches were pulled out, a green baggy containing a white powdery substance which was later determined to be cocaine, fell to the ground.

In denying Delorenzo's motion to suppress, the trial court judge stated as follows:

The Court finds that the encounter consisted of an officer seeing a citizen sitting in a car with the engine running, which indicated, first of all, that he may be ill, he may be under the influence of an alcoholic beverage, or a controlled substance.
So, for the officer just to ignore the fact that the Defendant is asleep or passed out, and may be suffering from carbon monoxide poisoning, I think they have a right to knock on the window.
When he knocked on the window, the defendant put his hand into his pocket, *876 and it is a clear indication, based on the officer's experience, that the defendant may be armed. . . .
So, at this point, when the officer asked him to step out, we have a reasonable, articulable suspicion, based on his experience, that the defendant may be under the influence of an alcoholic beverage, or a controlled substance, or may be armed.
So, the step of asking him to step out was not a 4th amendment violation.
The Court further finds that the officer says he gave consent. The Defendant never testified otherwise.
So, the Court finds that it was a consentual (sic) search, and that the Defendant gave him legal consent to search, and during that consentual (sic) search, the cocaine was found. The motion to suppress is denied.

The trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence in ruling on a motion to suppress. Although we are required to accept the trial court's determination of the historical facts, a defendant is entitled to a de novo review of whether the application of the historical facts to the law establishes an adequate basis for the trial court's finding of reasonable suspicion. See Lee v. State, 868 So.2d 577, 579 (Fla. 4th DCA 2004); see also Curtis v. State, 748 So.2d 370, 371 (Fla. 4th DCA 2000) (en banc).

Delorenzo argues that the encounter between himself and Vardakis went from a consensual encounter to an investigatory stop when Vardakis demanded that Delorenzo pull his hand out of his pocket. Delorenzo further argues that at the time of the investigatory stop, Vardakis did not have a reasonable suspicion that Delorenzo had committed, was committing, or was about to commit a crime, which is required for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Delorenzo further asserts that because Vardakis did not have a well-founded, articulable suspicion of criminal activity at the time that he directed Delorenzo to remove his hand from his pocket and step out of his car, that notwithstanding his consent to a search for weapons the discovery of the cocaine must be suppressed. We agree.

There are three levels of police-citizen encounters. See Johnson v. State, 785 So.2d 1224, 1226 (Fla. 4th DCA 2001). The three levels are: (1) consensual encounter where a citizen voluntarily complies with a police request or chooses to ignore it, (2) an investigatory stop which requires a "well-founded, articulable suspicion of criminal activity," and (3) "an arrest supported by probable cause that a crime has been or is being committed." Id. at 1226.

Vardakis testified that while he was still in his car, Delorenzo noticed Vardakis's presence and put his hand in his pocket. It was at this point that Vardakis asked Delorenzo to take his hand out of his pocket. Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop. See Lee, 868 So.2d at 580; Harrison v. State, 627 So.2d 583, 584 (Fla. 5th DCA 1993). There are times during an officer's encounter with an individual, when the officer's observations may lead to a belief that the individual is armed and dangerous, a belief the officer did not hold when the encounter was initiated.

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Bluebook (online)
921 So. 2d 873, 2006 WL 545596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delorenzo-v-state-fladistctapp-2006.