Romuliss Jarvis Hicks v. State of Florida

189 So. 3d 173, 2016 Fla. App. LEXIS 1039, 2016 WL 320592
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 2016
Docket4D14-904
StatusPublished
Cited by4 cases

This text of 189 So. 3d 173 (Romuliss Jarvis Hicks v. State of Florida) 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
Romuliss Jarvis Hicks v. State of Florida, 189 So. 3d 173, 2016 Fla. App. LEXIS 1039, 2016 WL 320592 (Fla. Ct. App. 2016).

Opinions

FORST, J.

Appellant Romuliss Hicks was sentenced to thirty months of probation after pleading no contest to robbery and aggravated assault charges in 2011. In 2013, Appellant was charged with violating his probation by committing burglary. The trial court found that Appellant had violated his probation and sentenced Appellant to five years’ incarceration. Appellant appeals, arguing the trial court should have suppressed an in-court identification and allowed him to present mitigation evidence during sentencing. We affirm the sentencing issue without comment and write solely to address the suppression issue. Because the trial court did not err, we affirm Appellant’s conviction.

Background

Appellant was charged with violating his probation after being implicated in the burglary of a gun store in Pompano Beach. [175]*175Testimony at trial established that the store’s silent , alarm was triggered in the early -morning hours, prompting officers to arrive and create a perimeter around the building. The officers found one of the store’s windows broken and damage inside the store. One officer (“the observing off!-, cer”) saw - a black man wearing black shorts and a black shirt exit the rear of the store and run west along the nearby railroad tracks. He radioed this description to other officers in the area.

A different .officer spotted Appellant within the perimeter around the store and detained him. .This officer (“the detaining officer”) admitted he had not heard the observing officer’s description and stopped the Appellant solely because he was inside the perimeter. The observing officer joined the detaining officer and identified Appellant as the man he saw fleeing the store. A search of Appellant’s person revealed that he had white powder or churiks of plaster on his clothes and shards of broken glass in the upper rim of his shoes.

At trial, the court ruled that the detaining officer’s stop of Appellant was unconstitutional, finding that the detaining officer lacked articulable suspicion for a Terry stop as he stopped him solely for being inside the established perimeter. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).. The trial court suppressed everything that occurred after the stop, including the physical evidence found on Appellant’s shoes and clothes. However, the trial court allowed testimony from the observing officer as to his observation of Appellant prior to the stop. The .observing officer testified that Appellant was the man he. saw running from the scene of the crime. The trial court accepted the veracity of this testimony and. found that Appellant had violated his probation.

Analysis

The ' exclusionary rule, the preferred ^remedy for constitutional violations, hides illegally obtained-evidence from the trier of fact. To aid in creation and application of-this legal-fiction, courts have also adopted the “fruit of'the poisonous tree” doctrine. This principle, first established in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), although not given its present name until Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), dictates that “the exclusionary rule bars the admission at trial, of physical evidence and live witness testimony obtained directly or indirectly.through the exploitation of the police illegality.”. Wells v. State, 975 So.2d 1235, 1238 (Fla. 4th DCA 2008) (citing Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

In the cáse at hand, Appellant argues that the trial court should not have allowed the in-court identification by the observing officer. An in-court identification “may not be admitted ‘unless it is found to be reliable and based solely upon the witnesses] independent recollection of the offender , at the time of the crime,’ uninfluenced by any intervening illegal confrontation.” Fitzpatrick v. State, 900 So.2d 495, 519 (Fla.2005) (quoting Edwards v. State, 538 So.2d 440, 442 (Fla.1989)).

In gauging the reliability of an in-court identification, the trial judge must consider the following factors: the prior opportunity the witness had to observe the alleged criminal act; the existence of any discrepancy between any pretrial lineup description and the defendant’s actual description; any identification prior to the lineup of another person; any identification by picture of the defendant prior to the lineup; failure to [176]*176identify the defendant on a prior occasion; any time lapse between the alleged act and the lineup identification; and any other factors raised by the totality of the circumstances that bear upon the likelihood that the witnesses] in-court identification is not tainted by the illegal lineup.

Edwards, 538 So.2d at 443 (citing United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967)). Appellant argues the trial court improperly considered the factors specified in Anderson v. State, 946 So.2d 579 (Fla. 4th DCA 2006), which apply to the admission of an out-of-court identification. However, the Edwards court specifically noted the substantial overlap between the factors enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (on which Anderson relies) and the ones it provided for in-court identifications. The trial court did not err by considering these factors.

In this case, the trial court found that the in-court identification was reliable, as the officer had a “good opportunity” to see Appellant running from the building, the identification at the stop was not conducted in an overly suggestive manner, and the out-of-court identification was done quickly. The in-court identification was also based “ ‘upon the witnesses] independent recollection of the offender at the time of the crime.’ ” Fitzpatrick, 900 So.2d at 519 (quoting Edwards, 538 So.2d at 442). Therefore, the trial court properly allowed the officer to identify the Appellant as the man he saw fleeing the scene of the crime.

Appellant also contends his identity itself should have been suppressed based on the unconstitutional stop and likens this case to State v. Perkins, 760 So.2d 85 (Fla.2000), and Garrett v. State, 946 So.2d 1211 (Fla. 2d DCA 2006). In Perkins, a defendant was illegally stopped while driving. Perkins, 760 So.2d at 85. During the stop, the police obtained the defendant’s license and discovered it was suspended. Id. This Court and the Supreme Court both held that the information obtained in the stop, including the defendant’s identity as the driver and his driving record, should be suppressed where “[i]t is clear that in the instant case the evidence required to prosecute the charge of driving with a suspended license came directly from the exploitation of the unlawful stop.” Id. at 88; see also Delafield v. State, 777 So.2d 1020, 1021 (Fla.

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Bluebook (online)
189 So. 3d 173, 2016 Fla. App. LEXIS 1039, 2016 WL 320592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romuliss-jarvis-hicks-v-state-of-florida-fladistctapp-2016.