Opinion
Case No. 2D20-193
01-29-2021
Cleo BROWN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
MORRIS, Judge. Cleo Brown appeals his conviction and sentence for possession of marijuana with intent to sell or deliver. Brown entered a no contest plea to the charge, reserving the right to appeal the denial of his dispositive motion to suppress physical evidence. We agree with Brown that the trial court erred in denying his motion to suppress because the State did not demonstrate that the search was lawful. Accordingly, we reverse.
Brown was sentenced to six months in jail.
In his motion to suppress, Brown argued that the search and seizure of the drug evidence was unlawful, that there was no probable cause for arrest, and that Brown was illegally arrested and searched without probable cause or reasonable suspicion. At the hearing, a detective with the Sarasota Police Department testified regarding his observations during police surveillance of a park that was known for narcotics transactions. A video of the surveillance was introduced. The detective was able to testify to his observations of Brown during the surveillance in the park, but he was unable to testify regarding the stop of Brown, which was made by another officer after Brown left the park. The State argued that the police had reasonable suspicion to stop Brown and that Brown was not arrested. The trial court asked whether both sides could agree on the issue being "whether or not there was a reasonable suspicion to conduct an investigatory stop," and the defense argued that it was not a stop but rather an arrest and that there was no reasonable suspicion for a stop, much less probable cause for an arrest. The trial court noted that they were dealing with two issues, reasonable suspicion to stop and then the search. The defense repeated its arguments that there was no reasonable suspicion for a stop, that there was no probable cause for an arrest, and that the search was improper.
The trial court denied the motion by written order, finding that "(1) the officers at issue were experienced narcotics officers, (2) the location of the event was a known area for illegal drug activity, [and] (3) the police observed [Brown] take part in what appears to be illegal drug activity." The court concluded that the officers "had reasonable suspicion the defendant had engaged in illegal activity and an investigatory stop was lawful."
"When reviewing a motion to suppress, the standard of review for the trial court's application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence." State v. Zachery, 255 So. 3d 957, 960 (Fla. 2d DCA 2018) (quoting Duke v. State, 82 So. 3d 1155, 1157-58 (Fla. 2d DCA 2012) ). We agree that the State demonstrated that the police had reasonable suspicion to stop Brown based on the detective's observations during the surveillance, his experience with narcotics investigations, and the reputation of the location for narcotics transactions. See Burnette v. State, 658 So. 2d 1170, 1171 (Fla. 2d DCA 1995) (identifying certain factors that give an officer reasonable suspicion for a stop based on suspected drug activity, such as whether an officer has observed "money or drugs exchange hands"; "the officer's narcotics experience; the reputation of the location for drive-up transactions; the extended period of surveillance; and the history of previous multiple arrests from that site"). However, reasonable suspicion for the stop alone does not justify an arrest or search. See id. ("The critical problem in this case, however, is that something more than the founded suspicion necessary to stop and investigate is needed to give rise to probable cause to arrest."); State v. Dickey, 203 So. 3d 958, 961 (Fla. 1st DCA 2016) ("A valid stop does not necessarily mean that there can be a valid frisk." (quoting State v. Webb, 398 So. 2d 820, 822 (Fla. 1981) )). The trial court found that the police had reasonable suspicion to conduct a stop, but the trial court did not address the search or probable cause to arrest.
There was no dispute that Brown was subjected to a warrantless search; thus, the burden therefore shifted to the State to show that the search was legal. See Palmer v. State, 753 So. 2d 679, 680 (Fla. 2d DCA 2000). At the hearing, the State did not present any evidence regarding what happened during the stop, did not argue that there was probable cause to arrest and search (and in fact argued that there was no arrest), and did not otherwise address the search that resulted in the discovery of the drugs. Thus, the State did not demonstrate that the police had probable cause to arrest Brown or any other basis to justify a search of Brown or his personal belongings. See Burnette, 658 So. 2d at 1171 (holding that police had reasonable suspicion to stop defendant but reversing where trial court "stopped short of finding that probable cause to arrest existed" and appellate court could not "find the search of Burnette or his vehicle supported by probable cause"); see also Strickroth v. State, 963 So. 2d 366, 369 (Fla. 2d DCA 2007) (holding that reasonable suspicion justified the stop but that the immediately resulting arrest was not supported by probable cause, relying on Burnette ). Accordingly, the trial court erred in denying Brown's motion to suppress the physical evidence found during the search, and we reverse Brown's conviction and sentence and remand for his discharge.
Reversed and remanded.
NORTHCUTT and STARGEL, JJ., Concur.