Lee v. State

868 So. 2d 577, 2004 WL 331121
District Court of Appeal of Florida·Decided February 18, 2004·No. 4D02-4065, 4D02-4277·Published·Cited by 40 cases

Opinion

868 So.2d 577 (2004)

Damon LEE, Appellant,
v.
STATE of Florida, Appellee.

No. 4D02-4065, 4D02-4277.

District Court of Appeal of Florida, Fourth District.

February 18, 2004.

*578 Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

Damon Lee appeals from his convictions in circuit court case numbers 02-3550 and 99-21195, which were consolidated on appeal. Lee was charged by information with one count of possession of cocaine in case number 02-3550 and as a result of these charges he was also charged with a violation of probation in case number 99-21195. Lee filed a motion to suppress in both cases. Following the denial of his motions to suppress, Lee pled nolo contendere in each case reserving his right to appeal the denial of his motions to suppress which are dispositive of the charges. We reverse.

At the hearing on the motions to suppress, the only witness who testified was Broward County Sheriff's Detective Aldwaldo Tianga. Tianga testified that on March 1, 2002, at approximately 9:00 p.m., he was on duty and responded to a dispatch based upon an anonymous tip of the sale of narcotics at the 5600 block of S.W. 27th Street in Broward County, Florida. In the past Tianga had received several complaints about that particular street corner concerning illegal drug activity and in fact had made fifteen to twenty drug arrests at that corner. The anonymous caller said that there was a "black male or several black males ... loitering on the street corner, selling narcotics." Tianga did not remember the call conveying any other information such as clothing, height of suspects, etc. He responded to the corner in "maybe a minute." The cruiser in which he responded was unmarked, and also occupied by Detective Sweeny. A marked cruiser driven by Deputy Anton responded just ahead of him.

*579 Upon his arrival, Tianga saw approximately five black males loitering at the corner, but had no idea whether these were the same males which were the subject of the anonymous tip. When the males loitering on the street corner observed the marked vehicle approaching, they immediately "dispersed," all in different directions.

There was an alley between two nearby duplexes. Tianga observed Lee go behind one of the duplexes. The duplex blocked the marked police vehicle's view of Lee. Tianga drove to the other end of the alley and Lee walked directly toward him. Lee was walking quickly. Detectives Tianga and Sweeny both exited their vehicle wearing shirts that indicated they were police officers. While observing Lee walk toward them, Tianga saw Lee's hand either go into his right pocket or it was already there as Lee approached. Tianga did not observe Lee flagging down cars or engaging in any drug transactions before departing the area. As Lee was walking straight towards him with his hand in his pocket, Tianga requested that Lee remove his hand from his pocket; this request, according to Tianga, was made for his safety. At that point, Lee reached the sidewalk, took his hand out of his pocket and dropped a small item to the ground. When Tianga called out to Sweeny that Lee had dropped something, Lee then fled on foot, but Sweeny apprehended him. The officers picked up the dropped object, which proved to be crack cocaine.

In denying the motions to suppress, the trial court found that under the totality of the circumstances Tianga had a reasonable suspicion that Lee was involved in criminal activity and, therefore, Tianga was legally justified in directing Lee to take his hand out of his pocket. Further, when Lee removed his hand from his pocket, the contraband fell to the ground and Tianga was justified in seizing the contraband. In arriving at this conclusion the trial court relied upon Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), McGee v. State, 818 So.2d 558 (Fla. 2d DCA 2002), and F.E.A. v. State, 804 So.2d 528 (Fla. 1st DCA 2002).

We are required to accept the trial court's determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. Although we are required to accept the trial court's determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the law to the historical facts establishes an adequate basis for the trial court's finding of reasonable suspicion or probable cause. See Curtis v. State, 748 So.2d 370 (Fla. 4th DCA 2000).

The threshold question is whether the initial encounter between Lee and Tianga was a consensual encounter or constituted an investigatory stop for which a reasonable suspicion of criminal activity is required. The state argues that the mere request by Tianga that Lee take his hand out of his pocket was insufficient to constitute a stop. We disagree. See Harrison v. State, 627 So.2d 583 (Fla. 5th DCA 1993).

In Harrison, the trial court denied a motion to suppress where an officer who had a suspect (Harrison) under surveillance, approached him for identification purposes. The officer, after asking if the suspect was "T" and getting an affirmative response, told Harrison to take his hand out of his pocket. When Harrison removed his hand from his pocket, a substance containing cocaine fell to the ground. Id. at 584. The Fifth District, in finding that the request by the officer that *580 Harrison remove his hand from his pocket was an illegal seizure, stated:

Whether the trial court correctly denied the motion to suppress depends upon whether the initial consensual encounter between the officer and Harrison evolved into a seizure before Harrison dropped the cocaine. We must hold that a seizure did occur under Hollinger v. State, 620 So.2d 1242 (Fla.1993) and State v. Anderson, 591 So.2d 611 (Fla. 1992). In Anderson the supreme court held that "[an] abandonment which is the product of an illegal stop is involuntary, and the abandoned property must be suppressed." Anderson at 613. In Hollinger, the defendant dropped cocaine as a group of officers in black masks and SWAT-team-type regalia approached him and his companions in a parking lot during a drug sweep and announced that they were from the "Orange County Sheriff's Office." The trial court suppressed the cocaine ruling that the dropping of the cocaine under those circumstances was involuntary. The supreme court found the trial court properly suppressed the cocaine since the trial court's factual finding that "a reasonable person under [these] circumstances would feel that he was not to move" was sufficiently supported by the evidence. Id. at 1243.
Other Florida district courts have consistently held that orders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.

Harrison, 627 So.2d at 584. As in Harrison, the request by Tianga for Lee to remove his hand from his pocket amounted to a stop.

The next issue which must be addressed is whether there were sufficient facts to support a reasonable suspicion on the part of Tianga of criminal activity which would make the investigatory stop lawf

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Lee v. State, 868 So. 2d 577, 2004 WL 331121 (Fla. Ct. App. 2004).

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