Gay v. State

138 So. 3d 1106, 2014 WL 1909092, 2014 Fla. App. LEXIS 7121
District Court of Appeal of Florida·Decided May 14, 2014·No. No. 2D13-1706·Published·Cited by 3 cases

Opinion

BLACK, Judge.

Melva Gay challenges her judgment and sentence for possession of five methylphe-nidate pills (brand name Ritalin), a con[1108] trolled substance; possession of drug paraphernalia (the aftermarket pill box in which she had the Ritalin); and possession of a prescription drug without a prescription (tramadol). She was sentenced to twelve months’ probation on the methyl-phenidate charge (a third-degree felony) and six months’ probation on the remaining charges (both misdemeanors), all to run concurrently. Gay pleaded no contest but expressly reserved the right to appeal the denial of her dispositive motion to suppress. We reverse her conviction and sentence.

Facts

Gay’s motion to suppress was based, in pertinent part, on the grounds that the pills and pill box were illegally seized without a warrant and were obtained as the result of an illegal investigatory detention. At the hearings on the motion,1 the arresting officer testified that he stopped the vehicle driven by Mr. Gay (the driver), in which Melva Gay was a passenger, for the traffic infraction of failing to come to a complete stop at a stop sign. After determining not to issue a citation, the officer asked the driver to step out of the vehicle and inquired whether he could search the vehicle for illegal narcotics. The driver consented to the search. The officer then asked Gay to step out of the vehicle. Gay did not take her purse with her when she exited the vehicle.

The officer testified that he immediately noticed a “faint odor” of cannabis upon beginning his search of the passenger compartment of the vehicle. He continued his search of the passenger compartment, including searching Gay’s purse.2 During his search of Gay’s purse, the officer found “a small, metal pill container — an aftermarket pill container” available for purchase in many drugstores. He removed the pills and box from the vehicle and returned to his patrol car where he learned, via the website Drugs.com, that some of the pills were Ritalin and trama-dol. He then returned to the vehicle, read Gay her Miranda3 rights, and began to question her about the pills. The officer testified that at the time he found the pills he did not know what they were; he identified them only through the Drugs.com website. The officer testified that although he knew the purse belonged to Gay and not the driver, he did not seek consent from Gay to search the purse. He confirmed that he did not ask Gay for permission to search the pill box or permission to take the pills or pill box from the vehicle back to his patrol car. The officer also confirmed that he would not have allowed Gay to leave the scene at that point and that no marijuana was found in the vehicle.

Analysis

Review of the denial of a motion to suppress presents a mixed question of law and fact. Crawford v. State, 980 So.2d [1109]*1109521, 523 (Fla. 2d DCA 2007). We defer to the trial court’s factual findings provided they are supported by competent, substantial evidence. Id. However, we review de novo the questions of reasonable suspicion and probable cause as both are legal conclusions. See id.

Although initially a stop due to the traffic violation, once the officer determined not to cite the driver and asked the driver for consent to search the vehicle, the encounter became consensual. See Smith v. State, 95 So.3d 966, 969 (Fla. 1st DCA 2012). At this juncture, the encounter was consensual as to Gay as well.

However, once the officer searched Gay’s purse and pill box, removed the pill box from the vehicle, and took the box to his patrol car, the encounter again became an investigatory detention. An investigatory detention requires reasonable suspicion that an individual has committed or is about to commit a crime; the officer must have “ ‘a well-founded, articulable suspicion of criminal activity.’ ” Smith, 95 So.3d at 968 (quoting § 901.151(2), Fla. Stat. (2010)). “An officer’s mere suspicion or hunch is not enough to permit this type of detention.” Id. (citing Popple v. State, 626 So.2d 185, 185 (Fla.1993)). Here, like in Smith, “[t]he deputy’s actions constituted a show of authority that would lead a reasonable person to conclude he or she was not free to end the encounter and leave.” See id. at 969. It was only upon his return to Gay with the knowledge that at least some of the pills in the box were controlled substances that the officer inquired of Gay as to whether she knew what the pills were and whether she had a prescription for them. Cf. Keller v. State, 946 So.2d 1233, 1234 (Fla. 4th DCA 2007) (affirming a trafficking conviction and concluding that the officer had probable cause to believe, at the time the pills were seized, that the pills were hydrocodone and that they did not belong to the defendant based upon the facts that the prescription pill bottle was visible from the officer’s position outside of the vehicle, that the label on the bottle provided a name different than the name on the defendant’s driver’s license, and the officer asked the defendant what was in the bottle before removing the bottle from the vehicle).

“ ‘Probable cause must exist before an object can be seized; after-the-fact discovery of contraband does not render the seizure legal ....’” Crawford, 980 So.2d at 525 (quoting E.B. v. State, 866 So.2d 200, 204 (Fla. 2d DCA 2004)). And, under the “plain view” doctrine — argued by the State at both the suppression hearing and on appeal — it must be “immediately apparent to the officer that the [seized] object constitutes evidence of a crime.” M.L. v. State, 47 So.3d 911, 912 (Fla. 3d DCA 2010). “ ‘[I]mmediately apparent’ means that ‘at the time police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.’ ” Id. at 913 (alteration in original) (quoting Jones v. State, 648 So.2d 669, 678 (Fla.1994)). “‘Probable cause does not exist when the circumstances are equally consistent with noncriminal activity as with criminal activity.’ ” Crawford, 980 So.2d at 525 (quoting E.B., 866 So.2d at 204).

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Gay v. State, 138 So. 3d 1106, 2014 WL 1909092, 2014 Fla. App. LEXIS 7121 (Fla. Ct. App. 2014).

138 So. 3d 1106 (Gay v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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