Henderson v. State

• Decision Date: 01 June 2012
• Docket Number: No. 1D11–0863.,1D11–0863.
• Citation: 88 So.3d 1060
• Parties: Harry HENDERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

88 So.3d 1060

Harry HENDERSON, Appellant,
v.
STATE of Florida, Appellee.

No. 1D11–0863.

District Court of Appeal of Florida,
First District.

June 1, 2012.

[88 So.3d 1061]

Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, and Daniel Cauley, Legal Intern, Office of the Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Harry L. Henderson appeals his convictions for possession of a firearm by a convicted felon, fleeing or attempting to elude a police officer, and driving while license suspended. He contends the trial court erred by (1) denying his motion to suppress because the arresting officer did not have reasonable suspicion or probable cause to stop his vehicle pursuant to the fellow-officer rule, and (2) denying his motion for judgment of acquittal because the state failed to prove he was in constructive possession of the firearm. We affirm.

Jacksonville Sheriff's Office Deputy J.E. Floyd testified that on June 24, 2010, a U.S. Marshall requested assistance over the police radio from available patrol units to stop an armed homicide suspect who was driving in front of him on Interstate 95 in a gold Kia with an Ohio tag. Deputy

[88 So.3d 1062]

Floyd caught up with them and the Marshall pointed to the gold Kia as containing the suspect. Deputy Floyd activated his red and blue lights, as did Deputy Wilke, who was by then in front of Deputy Floyd. Deputy Wilke's SUV had Jacksonville Sheriff's Office insignia on it, “prominent and easily determined,” as did Dep. Floyd's patrol vehicle. Deputy Floyd could also see lights and hear sirens behind him.

When the lights and sirens commenced, appellant slowed, as if to pull off on the grass shoulder, but then continued to drive for one to two miles, although he could have pulled over on the shoulder during that time. Appellant did not speed or violate any traffic laws before he pulled over, but he did not stop until there were officers approaching from the opposite direction. A loaded .45–caliber handgun was found under the driver's seat.

Deputy Floyd testified that he initiated the stop based on the U.S. Marshall's request. The U.S. Marshall did not testify. The deputy said he was given a teletype at around 3:00 p.m. when he booked appellant into jail stating that a warrant for appellant's arrest had been issued in St. John's County.

We reject the state's argument that the stop was justified by the fellow-officer rule. The rule cannot be applied under the facts of this case. Because there is no record evidence of the U.S. Marshall's grounds for suspecting that appellant had been involved in a homicide, “there is nothing on the record to impute” to Deputy Lloyd. J.P. v. State, 855 So.2d 1262, 1265 (Fla. 4th DCA 2003). Accord C.H.C. v. State, 988 So.2d 1145 (Fla. 2d DCA 2008).

We also reject the state's claim that the arrest warrant issued five hours later justified the stop, absent any record evidence of the information that was provided to the judge who issued the warrant and when the information was provided. See, e.g., Mills v. State, 58 So.3d 936 (Fla. 2d DCA 2011) (facts discovered after an arrest cannot be used retroactively to justify a warrantless arrest).

We affirm the order, however, because appellant's act of fleeing or attempting to elude Deputy Floyd and the other officers ¹ obviates the necessity of determining whether there was reasonable suspicion or probable cause for the initial attempt to stop.²

In a case much like that at bar, Green v. State, 530 So.2d 480...