Bravo v. State

• Decision Date: 31 August 2007
• Docket Number: No. 2D06-1760.,2D06-1760.
• Citation: 963 So.2d 370
• Parties: Antonio BRAVO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

963 So.2d 370

Antonio BRAVO, Appellant, v. STATE of Florida, Appellee.

No. 2D06-1760.

District Court of Appeal of Florida, Second District.

August 31, 2007.

Keith P. Ligori, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Antonio Bravo appeals from the judgment and sentence imposed on him after he pleaded no contest to trafficking in amphetamine. Mr. Bravo reserved the right to appeal the trial court's dispositive order denying his motion to suppress contraband that he discarded during a tussle with law enforcement officers. Because Mr. Bravo abandoned the contraband after an arrest based on probable cause, we affirm his judgment and sentence.

I. THE FACTS

The facts in this case are undisputed. On the afternoon of April 12, 2002, Sergeant Charles Michael Baldwin of the Polk County Sheriff's Office executed a warrant for the arrest of John Doe¹ at Mr. Doe's residence in Polk County. Sergeant Baldwin was accompanied by two agents from the Drug Enforcement Agency (the DEA), Armando Guerrero and Terry Corn. The charges against Mr. Doe in the warrant were for the sale of methamphetamine and possession of methamphetamine. Based on events that occurred during his arrest, Mr. Doe was also charged with possession of cannabis and possession of drug paraphernalia.

Shortly after his arrest, Mr. Doe agreed to cooperate with the officers in exchange for their promise to inform the State Attorney about his "substantial assistance." To that end, Mr. Doe identified Mr. Bravo as his methamphetamine supplier and agreed to arrange a purchase of the drug from Mr. Bravo. Later that afternoon and evening, Mr. Doe made several telephone calls from his residence to Mr. Bravo at Mr. Bravo's place of employment. The three officers monitored and recorded these calls. During one of the calls, Mr. Doe told Mr. Bravo that he had enough money to purchase "one," indicating one ounce of methamphetamine. Mr. Bravo responded that he would come to Mr. Doe's residence when Mr. Bravo completed his duties at work. Notably, Mr. Bravo also told Mr. Doe, "I'll bring as much as I can."

On the day Mr. Doe was arrested, the officers had never previously used him as an informant. Nevertheless, one or more of the DEA agents — including Agent Corn — had previously conducted surveillance operations against Mr. Bravo. As a result of this surveillance, the agents had a photograph of Mr. Bravo and had already identified him as the person they suspected was acting as Mr. Doe's methamphetamine supplier. The agents had also seen Mr. Doe at Mr. Bravo's place of employment. In addition to making the monitored telephone calls, Mr. Doe told the officers that he generally purchased one-half ounce of methamphetamine from Mr. Bravo. Mr. Doe also told the officers that Mr. Bravo made the deliveries at Mr. Doe's residence using a red sports utility vehicle. Finally, Mr. Doe supplied the interesting detail that Mr. Bravo wrapped the drugs in black electrical tape — forming a "black ball" — and carried them in his pocket.

At 9 p.m. that evening, Mr. Bravo called Mr. Doe and said that he was in the area and would be arriving shortly. The three officers remained stationed inside Mr. Doe's house. They were wearing "raid vests" that identified them as law enforcement officers. The officers recognized Mr. Bravo when he arrived at the residence about ten minutes after the last telephone call. He was driving a red sports utility vehicle. Mr. Doe greeted Mr. Bravo on the porch and made small talk while he led Mr. Bravo into the living room.

As soon as Mr. Bravo entered the living room, the officers emerged from hiding and began what Sergeant Baldwin would later describe as "the takedown." The three officers announced: "Police! You're under arrest!" Next, Agents Guerrero and Corn attempted to grab Mr. Bravo's arms and handcuff him. The force of this encounter spun Mr. Bravo around so that he was facing Sergeant Baldwin. The sergeant watched as Mr. Bravo reached into one of his pockets, removed some items, and threw the items to the living room floor. After these objects landed on the floor, Agents Guerrero and Corn were able to handcuff Mr. Bravo.

Sergeant Baldwin immediately retrieved the items that Mr. Bravo had thrown to the floor. He found a package of cigarettes and what appeared to be a ball of black electrical tape. Inside the electrical tape were two baggies containing methamphetamine. Then the officers searched Mr. Bravo and recovered $1270 in United States currency.

II. THE TRIAL COURT'S ORDER

Sergeant Baldwin and Agent Guerrero were the only witnesses who testified at the hearing on Mr. Bravo's motion to suppress. After the hearing, the trial court entered a lengthy written order with detailed findings of fact and conclusions of law. The trial court found that the initial encounter between Mr. Bravo and the two DEA agents that had prompted him to discard the contraband was not an arrest but rather "a detention, based on reasonable suspicion." The trial court concluded that "because it was not until after Mr. Bravo threw the drugs on the ground that the arrest was achieved, the arrest was supported by probable cause pursuant to the plain view doctrine." On these grounds, the trial court ruled that "the detention and subsequent arrest were properly supported by reasonable suspicion and probable cause, respectively."²

III. THE STANDARD OF REVIEW

We employ a mixed standard of review in considering the trial court's ruling on Mr. Bravo's motion to suppress. The trial court's determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the trial court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

IV. MR. BRAVO'S ARGUMENTS

On appeal, Mr. Bravo appears to concede that the officers had a reasonable suspicion of criminal activity that would have justified his temporary detention. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (identifying three levels of police-citizen encounters, including (1) a consensual encounter, (2) a temporary detention or investigatory stop, and (3) an arrest). But Mr. Bravo contends that the trial court erred in finding that the officers had conducted only a temporary detention before he discarded the contraband. Mr. Bravo argues that the officers simply arrested him — without probable cause. If Mr. Bravo was illegally arrested, it follows that the trial court erred in denying his motion to suppress. A suspect who abandons or discards property as a result of an illegal stop or arrest does so involuntarily, and the abandoned or discarded property must be suppressed. See State v. Anderson, 591 So.2d 611, 613 (Fla.1992); Baggett v. State, 849 So.2d 1154, 1157 (Fla. 2d DCA 2003).

V. FRAMING THE ISSUES

Based on Mr. Bravo's arguments, the initial question we address is whether the trial court correctly concluded that the law enforcement officers temporarily detained Mr. Bravo to further their investigation and arrested him only after he discarded the contraband. If the answer to this question is in the affirmative, then we must affirm Mr. Bravo's judgment and sentence.³ But if the answer to this question is in the negative, then we must address the State's alternative argument that the officers had probable cause to arrest Mr. Bravo as soon as he walked into Mr. Doe's living room.⁴ See § 901.15(3), Fla. Stat. (2001); Popple, 626 So.2d at 186 (stating that an arrest "must be supported by probable cause that a crime has been or is being committed").

VI. DISCUSSION

A. Temporary Detention or Arrest?

The trial court based its legal reasoning largely on this court's decision in State v. Hendrex, 865 So.2d 531 (Fla. 2d DCA 2003). In Hendrex, the defendant had been arrested after police officers, with guns drawn, ordered him to get out of his car and lie on the ground. Id. at 533. The defendant "removed a small plastic bag containing a white powdery substance from his . . . pocket and placed it on the ground . . . as he lay down." Id. The Hendrex court determined that the initial stop was "an investigatory stop and not an arrest" and that the defendant's voluntary production of the contraband provided the probable cause to convert the stop into an arrest. Id. at 534. Here, the trial court determined that the officers' initial encounter with Mr. Bravo was similar to the stop under review in Hendrex and that Mr. Bravo's jettison of the black ball provided the necessary probable cause to justify his arrest.

We disagree. Sergeant Baldwin testified that when Mr. Bravo entered Mr. Doe's residence, "there was no real time lapse" and that the events happened "very quickly." The sergeant explained that Mr. Doe led Mr. Bravo into the living room where Agent Guerrero and Agent Corn "attempted to detain him." Sergeant Baldwin said that Mr. Bravo "turned facing me upon being taken down" and pulled the black ball containing the contraband from his pocket before the agents were able to secure his hands. Agent Guerrero testified that he did not see Mr. Bravo throw anything on the floor while the agents were restraining him. He described his encounter with Mr. Bravo, stating, "I approached him and attempted to grab his arm and place handcuffs on him." The agent said that his mask interfered with his ability to see everything that happened. He continued, "When I made contact with him, there was a little slight scuffle trying to get the handcuffs on him, and my mask was, you know, was thrown around my face a bit until we were able to handcuff him."

At the hearing on the motion to...