State v. Albert

193 So. 3d 7, 2016 Fla. App. LEXIS 2461, 2016 WL 671986
CourtDistrict Court of Appeal of Florida
DecidedFebruary 19, 2016
DocketNo. 5D15-996
StatusPublished
Cited by1 cases

This text of 193 So. 3d 7 (State v. Albert) 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
State v. Albert, 193 So. 3d 7, 2016 Fla. App. LEXIS 2461, 2016 WL 671986 (Fla. Ct. App. 2016).

Opinion

EDWARDS, J.

The question presented in this case is whether a police officer may ask a citizen twice to come over and speak to him without infringing upon that citizen’s Fourth Amendment rights. The State appeals the trial court’s order on rehearing granting Marques Albert’s motion to suppress evidence, and it argues that the rehearing judge erroneously concluded that the interaction between the police officer and Albert constituted an investigatory stop that was not supported by reasonable suspicion. The State points out that the motion to suppress was originally denied by a different judge, who concluded that the encounter was consensual after observing the police officer and Albert testimony. Based on the totality of the circumstances in this case, we find that this was not an investigatory stop. We reverse and remand to the trial court for further proceedings.

Albert was charged with possession of cocaine under twenty-eight grams, possession of hydromorphone, and possession or use of drug paraphernalia. The charges' stem from an encounter with Officer Jeremy Pergerson, a K-9 officer with the Ti-tusville Police Department. Albert filed a motion to suppress the evidence that Per-gerson obtained from Albert during their encounter.

Judge John Griesbaum held the original hearing on Albert’s motion. At this hear[9]*9ing, Pergerson testified that on March 9, 2014, while patrolling an area he considered a “high crime” and “high drug” area, he identified Albert and other individuals at a residence. Based on Pergerson’s patrol duties and prior investigations, he testified that he knew drug activity occurred at the residence on a daily basis. Perger-son explained that Albert had something in his hand that he appeared to be picking at, while a woman standing near Albert was looking at whatever he held in his hand. The officer further testified that one of the individuals noticed him approach, and alerted Albert to Pergerson’s arrival. According to Pergerson, Albert immediately became nervous, shoved whatever he was holding into his pockets, and began to walk away.

Pergerson believed Albert was involved in a drug transaction, but admitted that he did not have enough information at that time to justify conducting an investigatory stop to detain Albert. While staying between his marked patrol car and the sidewalk, Pergerson asked Albert to come over to him. Albert asked Pergerson why he was bothering him and said he was not doing anything wrong. During the encounter, Pergerson was the only police officer present, he did not block Albert’s path, did not follow him on foot, did not activate the police car’s siren or lights, and did not draw his pistol or any other weapon. The officer did not tell Albert that he was not free to leave, nor did he ask him to remove anything from his pockets. After asking him a second time to come over, Albert walked over to the officer. When Albert approached him, Pergerson detected the odor of marijuana on Albert and observed in plain view a cigar tube that had been cut in half protruding from Albert’s pocket. Following those observations, Pergerson searched Albert and discovered contraband that led to his arrest.

Albert testified at the hearing that he was compelled to walk toward Pergerson because the officer threatened to release the K-9 from the patrol car if Albert did not comply. According to Albert, the officer kept touching a button or control on his belt, which Albert believed could be used to let the K-9 out of the car. Though Pergerson had his Dutch Shepherd dog in his patrol car, a marked K-9 unit, he denied ever threatening to release the dog. As far as Pergerson was concerned, if Albert did not respond he would have been free to walk away.

The original written order denying the motion to suppress was issued in August 2014. In this order, Judge Griesbaum reviewed the testimony, including the differing accounts of whether the officer said that he would release the dog if Albert refused to come over. The trial court found the officer’s testimony more credible, and determined that no such threat or show of force had occurred. The court found that the totality of the circumstances were such that a reasonable person in Albert’s position would have felt free to leave or decline Pergerson’s request and that Albert was not detained by Perger-son. The court then concluded that there had been no seizure. Thus, the officer’s observations during the consensual encounter provided a basis for the search which led to discovery of the evidence. For those reasons, the trial court denied the motion to suppress.

Approximately six months later, Albert filed a motion for rehearing requesting the court review its conclusions of law, asserting that Albert’s counsel had not provided the original judge with a potentially relevant case, Beckham v. State, 934 So.2d 681 (Fla. 2d DCA 2006). Albert asserted that if the original judge had been provided with Beckham, he would have granted the motion to suppress. Judge Robin Lemoni-[10]*10dis presided over the motion for rehearing. Albert argued that Pergerson displayed a show of authority by repeatedly asking Albert to come over'to him. The State responded that Pergerson only asked Albert twice to come over, and he did not pursue Albert or the other individuals that were on the property. On rehearing, the court reversed the order denying the motion to suppress and ruled that Perger-son’s repeated requests for Albert to come to him constituted an investigatory stop. The court held that the circumstances surrounding the stop did not indicate that the officer had a reasonable or well-founded suspicion of criminal activity to justify an investigatory stop. Thus, on rehearing, the motion to suppress was granted.

When' reviewing a trial court’s rulihg on a motion to suppress, an appellate court is bound by the trial court’s factual findings, so long as they are supported by competent substantial evidence. State v. D.R., 67 So.3d-372, 373 (Fla. 3d DCA 2011). The determination of the existence- of probable cause is a legal issue that must be reviewed de novo. Pagan v. State, 830 So.2d 792, 806 (Fla.2002).

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), the Florida Supreme Court outlined three levels of police-citizen encounters. The first level is consensual and involves minimal police contact. 626 So.2d at 186. During such an encounter, a citizen may choose to comply with or ignore an officer’s requests. Id. The second level, investigatory stop, permits an officer to reasonably, detain a citizen temporarily if the officer has a reasonable suspicion that the citizen has committed, is committing, or is about to commit a .crime. Id. The investigatory stop requires a well-founded, articulable suspicion of criminal activity to avoid violating a citizen’s Fourth Amendment rights. Id. The third level of police-citizen encounter is an -arrest which must be supported by probable cause that a crime has been or is being committed. Id.

“It is well established that an officer does not need to have a founded suspicion to approach an individual to ask questions.” Id. at 187; see also Beckham, 934 So.2d at 683. “[A] significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries.-;.. ” Popple, 626 So.2d at 187.

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Related

Brown v. State
224 So. 3d 806 (District Court of Appeal of Florida, 2017)

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Bluebook (online)
193 So. 3d 7, 2016 Fla. App. LEXIS 2461, 2016 WL 671986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-albert-fladistctapp-2016.