Opinion
No. 97-1999.
October 7, 1998.
Appeal from the Circuit Court, Dade County, Ronald Dresnick, J.
Andrew M. Teschner, Coral Gables, and J.C. Elso, Miami, for appellant.
Robert A. Butterworth, Attorney General, and Alison B. Cutler, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., FLETCHER, J., and SMITH, LARRY G., Senior Judge.
Guillermo Delprado pled nolo contendere to a charge of possession of cocaine, reserving the right to appeal the dispositive issue of the trial court's denial of his motion to suppress evidence. For the reasons which follow, we reverse and remand the case with directions to the trial court to grant the motion to suppress.
The facts of the case relevant to the motion to suppress show that Delprado, two other adults, and a three-year-old child were riding in a vehicle together and became victims of a drive-by shooting. One of the two other adults and the child were hit with gunfire and Delprado drove the vehicle to the emergency room at Miami Children's Hospital. Upon arrival, all four occupants of the vehicle were observed to have blood on them. Delprado and the other unharmed adult waited at the hospital while hospital workers tended to the injured victims. Because gunshot victims were being treated, Metro-Dade police were called to the scene.
Testimony from one of the officers on the scene showed that there was no evidence that Delprado carried a firearm or other weapon or that he was behaving in a disruptive manner, and no initial pat-down was conducted because the officer did not want to touch the blood on him. The officers attempted to question Delprado in the public area of the hospital about the circumstances surrounding the shooting, but he refused to cooperate by giving them information. When the initial questioning failed to produce the information desired by the police, two officers took Delprado into a "family" room away from the public, had him wash the blood off his hand/arm area, and handcuffed him. The questioning officer asked Delprado for identification and was told that it was in his pocket. Since he was handcuffed, Delprado told the officer to get the wallet out of his pocket to find his identification. When the wallet was opened, a packet containing cocaine fell out. The cocaine was seized and Delprado was charged with its possession.
Delprado urges on appeal that the cocaine should have been suppressed by the trial court because its seizure was tainted by an illegal warrantless detention unsupported by reasonable suspicion that Delprado had committed a crime, there was no justification for an officer-safety frisk, and the consent given to the officer to retrieve the wallet from his pocket was not voluntary since it was necessitated by the initial illegal detention. We agree that the cocaine must be suppressed because, under the totality of the circumstances shown here, the initial detention of Delprado was unsupported by the required founded reasonable suspicion that he committed a crime or carried a weapon and his "consent" to search his wallet was therefore involuntary. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Reynolds v. State, 592 So.2d 1082 (Fla. 1992); Sutton v. State, 698 So.2d 1321 (Fla. 2d DCA 1997); Kindell v. State, 562 So.2d 422 (Fla. 5th DCA 1990).
Reversed and remanded for further proceedings consistent with this opinion.
SCHWARTZ, C.J., concurs.
The majority's recitation of the facts of the case is only partially complete, and does not take into account the chronology of events as they unfolded during the unusual incident which ultimately resulted in appellant Delprado's arrest for possession of cocaine.
At the suppression hearing, officer Castell testified that while on patrol she was called to the hospital by an off-duty policeman who asked for help, reporting initially that there was a shooting involving four people who were in an automobile. Either before or on arrival at the hospital, Castell was informed that the vehicle was involved in a shooting on Southwest 87th Avenue, and 39th Street and at the hospital she was directed to Delprado, who was uninjured, and another uninjured person who was supposedly in the car, both covered with blood. Some 14 additional police officers had assembled at the hospital in response to the call for help. Castell testified that they were trying to determine "what really happened," explaining that there was a problem in determining what happened because "nobody would say what happened . . . nobody would cooperate." The officers were provided information that the address given for the shooting was wrong; "it was bad information," in Castell's words. At that point, officer Castell was instructed by her sergeant to separate Delprado and the other unharmed individual. Castell and officer Jackson did this by moving with Delprado to a separate room, where Delprado was told to wash the blood from his hands. After separating Delprado, Castell said, he would not cooperate in the investigation, and "we didn't know what was going on, so I had to handcuff him for my own safety." The officer further testified that although she saw nothing to indicate that Delprado had a weapon, Delprado was covered with blood, and they "didn't know what was going on." She conducted no pat-down search because she did not want to expose herself to the blood, and she had no gloves for protection.
The injured victims were a three-year-old child, and an adult male who had been shot in the head and was unconscious.
Q. "Why did you feel that your safety was an issue?"
A. "Because here we have somebody almost in critical condition, a kid got shot and nobody would explain what really happened, so I felt it was time to handcuff him for my own safety and the other officer."
While it is correct to say that there was no evidence that Delprado carried a firearm or other weapon, it is not entirely correct that Delprado was not "behaving in a disruptive manner," as the majority states. In his testimony, Delprado describes his own behavior: "I was in shock. I was nervous. I had blood on me. I had all this trauma. I had my cousin in the hospital wounded in the head. I was nervous. I said nothing. I was in shock. I was freaking out."
The trial court questioned the argument by defense counsel below that officer safety justifying temporary detention and handcuffing was not at issue when, as the court stated, "someone is covered with blood and freaked out, in this own words?"
In addition, officer Castell repeatedly stated in her testimony that Delprado was uncooperative, refusing to answer questions about what happened, which Delprado freely admitted in his suppression hearing testimony. Delprado did give his name, according to Castell, as Delprado admitted, and he also consented to the officer's retrieval of his wallet from his trousers, which he denied at the hearing.
In light of the additional testimony as referred to above, I am unable to agree that the temporary detention, handcuffing, and request for identification were unlawful. In reviewing search and seizure rulings, factual decisions by the trial court "are entitled to deference commensurate with the trial judge's superior vantage point for resolving factual disputes." State v. R.R., 697 So.2d 181, 182 (Fla. 3d DCA 1997). The objective facts here are sufficient, in my view, for the trial court to conclude that the officers reasonably formed a well-founded suspicion that Delprado had been engaged in criminal activity. Even if entirely unexplained, the existence of the two gunshot victims in itself established a strong probability of criminal conduct by someone; and Delprado's bloody condition and the information that he was in the car in which the shootings occurred placed him at the scene of the criminal conduct. Cf. Johnson v. State, 696 So.2d 1271 (Fla. 5th DCA 1997) (sighting of two suspects four blocks from intersection where a shot was reportedly fired placed them within class of individuals who "could have" committed offense). Because of the incorrect information regarding the location of the shooting and Delprado's refusal to cooperate by explaining the circumstances of the shooting, officer Castell, with four years experience on the police force, might reasonably have concluded that Delprado was himself involved in criminal activity leading to gunplay, rather than being an innocent victim. Delprado's uncooperativeness, coupled with his bloody condition and his erratic, "freaked out" behavior clearly justified his temporary detention and handcuffing while the officer sought identification. See Harper v. State, 532 So.2d 1091 (Fla. 3d DCA 1988). For these reasons, I would defer to the trial court's evaluation of the facts and affirm.
This fact is so event that the Florida Legislature has made it a criminal offense for physicians and hospital personnel to fail to report gunshot wounds to the Sheriff for investigation. § 790.24, Fla. Stat. (1997).