Baxter v. State
| Docket Number | 5D23-118 |
| Decision Date | 27 October 2023 |
| Parties | Jason Hassan Baxter, Appellant, v. State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the County Court for Duval County. LT Case No 16-2021-MM-14027-AXXX Julie K. Taylor, Judge.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb Assistant Public Defender, Jacksonville, for Appellant.
Ashley Moody, Attorney General, and Christina Piotrowski, Assistant Attorney General, Tallahassee, for Appellee.
Jason Baxter appeals a judgment and sentence for one count of possession of drug paraphernalia after he entered a nolo contendere plea and reserved his right to appeal the denial of his dispositive motion to suppress. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). On appeal, Baxter argues that the trial court erred when it denied his motion because he was detained without reasonable suspicion and subjected to an unlawful search and seizure. Specifically, Baxter makes two arguments regarding his detention and the subsequent seizure of his person and search of his vehicle. First, he argues that he was seized for Fourth Amendment purposes when the arresting officer approached his vehicle after activating his emergency lights. At that point, he argues, the officer did not have the necessary reasonable suspicion required to involuntarily detain him. Next, he argues that after the initial investigatory detention, his seizure was based on the "plain smell" doctrine that as a matter of law should no longer be sufficient to establish probable cause. For the reasons that follow, we affirm.
According to testimony and video evidence, on August 16, 2021, at approximately 10:30 p.m., Officer T.W. Accra with the Jacksonville Sheriff's Office (JSO) saw Baxter pull into the parking lot of a closed CVS drugstore. Accra drove by the property and decided to come back around to both check on Baxter's well-being and to ensure no property crimes were being committed. Accra pulled into the parking lot and stopped his marked JSO vehicle near Baxter's parked car without blocking Baxter's ability to drive away. Accra activated his emergency lights before exiting his vehicle and approaching Baxter. Accra testified that he was wearing his class C uniform, which consists of tactical gear, tactical vest, black T-shirt, and black cargo pants. He testified that he activated his emergency lights so that other officers would more readily know where he was and, because he was not in a traditional police uniform, so others would more readily recognize him as a police officer before he approached.
As Accra got out of his vehicle and walked over to the passenger side of Baxter's car, Baxter had already rolled down his passenger-side front window. Accra testified that he immediately smelled what seemed to be fresh marijuana. Accra also testified that before approaching the vehicle he saw Baxter make some sort of movement towards the backseat and place something there. Accra identified himself, asked Baxter how he was doing, and informed Baxter that the reason he made contact with him was because he was parked outside of a closed business. Baxter did not ask if he was detained or if he was free to leave. Instead, Baxter responded, "Oh I'm actually just about to leave, I was waiting for my friend to get from the gym, I just got off work." Accra asked Baxter if he had a driver's license on him and Baxter gave him his license.
When Accra asked, "So how far out is your friend?" the defendant pointed in a direction, hesitated, and said, The officer then asked, "Why are you waiting for him here out of curiosity?" Baxter responded, The officer then asked, "Well if you was waitin' for him, and he's not here, why you leavin' all of the sudden?" Baxter responded, At that point, the officer says, "Well just stand by, I'm gonna check everything out, and we'll go from there."
Accra returned to his patrol car to check Baxter's information. While at his vehicle, Accra can be heard on his body camera recording saying (presumably to another officer) to "stay [present] with him at the driver door, I smell fresh marijuana - big blue bag in the back." A moment later, presumably to an additional officer, Accra can be heard saying that Baxter's "story is kind of doodoo" and that he smelled fresh marijuana "not even burned -and he has a huge backpack that I saw him put back there when I first pulled up." As Accra finished this statement, he was exiting his vehicle to return to Baxter. Another officer can be seen standing at the door of Baxter's vehicle. There is no evidence in the record concerning any interaction between that officer and Baxter prior to Accra's return to the vehicle.
As Accra approached, the other officer directed Baxter to step out of the vehicle and can be heard on Accra's body camera recording asking Baxter if he has a medical marijuana card. Baxter responded no. Baxter was asked if he smokes marijuana and he responded no. He was asked if he smokes hemp products but cannot be heard responding because of crosstalk. The officer told Baxter that he was going to be detained for a minute, that he "has weed all over [him]," and that they could smell marijuana either fresh or burnt from outside the vehicle. Baxter was handcuffed and placed in the back of a patrol car. After unsuccessfully seeking permission to search Baxter's vehicle, the officers proceeded with an involuntary search of the vehicle and informed Baxter that it was based upon the probable cause that they obtained from the smell coming from his vehicle.
Based upon items recovered during the search, Baxter was arrested and ultimately charged with misdemeanor possession of less than twenty grams of marijuana, and possession of drug paraphernalia (also a misdemeanor). Baxter filed a motion to suppress, arguing that the marijuana and paraphernalia were discovered based upon a detention without reasonable suspicion and a subsequent illegal search. At the hearing on the motion the only witness testimony was from Officer Accra. The State and Baxter stipulated to the introduction of Accra's body-camera video into evidence. The trial court denied the motion and Baxter entered a plea of nolo contendere to the paraphernalia charge. The state entered a nolle prosequi for the marijuana charge. At the time of the plea there was a finding made on the record that the motion to suppress was dispositive.[1] Baxter appeals the order denying his motion to suppress.
In State v. Willis, 276 So.3d 448 (Fla. 5th DCA 2019), this court explained the standard of review that we apply in this case, as follows:
We review a suppression order to determine whether competent, substantial evidence supports the trial court's findings of historical fact. State v. Roman, 983 So.2d 731, 734 (Fla. 3d DCA 2008). "It has also been observed, however, that to the extent a ruling is based on an audio recording, 'the trial court is in no better position to evaluate such evidence than the appellate court, which may review the tape for facts legally sufficient to support the trial court's ruling.'" Bailey v. State, 31 So.3d 809, 812 (Fla. 1st DCA 2009) (citing Dooley v. State, 743 So.2d 65, 68 (Fla. 4th DCA 1999)). We review that evidence and any inferences from it in favor of supporting the trial court's ruling. Pagan v. State, 830 So.2d 792, 806 (Fla. 2002). We must "independently review mixed questions of law and fact that ultimately determine constitutional issues." Schoenwetter v. State, 931 So.2d 857, 866 (Fla. 2006). The trial court's application of law to the facts in a finding as to reasonable suspicion, or the lack thereof, is subject to de novo review. State v. Cruse, 121 So.3d 91, 95 (Fla. 3d DCA 2013) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).
Baxter's initial argument is that when Accra activated his emergency lights, the interaction became an investigatory detention. He argues that because Accra had not yet established sufficient grounds to reasonably suspect criminal activity, the detention was unlawful, in violation of Baxter's Fourth Amendment right to be free from unreasonable search and seizure. Baxter's argument fails as follows.
"[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v Bostick, 501 U.S. 429, 439 (1991). Importantly, a person's belief that they are not free to terminate the encounter must be based on a show of force or authority by the police.
Baxter's argument that the activation of police lights elevated the interaction from a consensual interaction to a detention has been conclusively rejected by the Florida Supreme Court. In G.M. v. State, the Court recognized that the "United...
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