Cobb v. State, s. 92-3849

• Decision Date: 16 September 1994
• Docket Number: 92-4221,Nos. 92-3849,s. 92-3849
• Citation: 642 So.2d 656
• Parties: 19 Fla. L. Weekly D2032 Terry Lavon COBB, Appellant, v. STATE of Florida, Appellee. Jamie MORRIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 656

642 So.2d 656

19 Fla. L. Weekly D2032

Terry Lavon COBB, Appellant, v. STATE of Florida, Appellee.

Jamie MORRIS, Appellant, v. STATE of Florida, Appellee.

Nos. 92-3849, 92-4221.

District Court of Appeal of Florida First District.

Sept. 16, 1994.

Christopher P. Saxer, of Smith, Grimsley, Bauman, Pinkerton, Petermann, Saxer & Wells, Fort Walton, Beach, for appellant, Cobb.

Nancy A. Daniels, Public Defender, Carl S. McGinnes, Asst. Public Defender, and Chris W. Hoeg, Asst. Public Defender, Tallahassee, for appellant, Morris.

Robert A. Butterworth, Atty. Gen., Patrick Martin, Marilyn McFadden, and Sonya Roebuck Horbelt, Asst. Attys. Gen., Tallahassee.

MICKLE, Judge.

Appellants, Terry Cobb and Jamie Morris, co-defendants in the lower tribunal, both challenge the denial of their motions to suppress evidence. Judgment and sentence was entered for both defendants, and each received a term of imprisonment. Finding a sufficient evidentiary basis for the decisions below, we affirm.

Cobb and Morris were charged with armed robbery relating to an incident that occurred early in the morning on November 12, 1991, at the Tom Thumb Food Store in Baker, Florida, in Okaloosa County. After their motions to suppress were denied, Cobb and Morris agreed to plead nolo contendere and filed essentially identical standard plea forms. At the sentencing hearing, Cobb's attorney verbally informed the trial court that Cobb had entered the plea conditioned on reserving the right to appeal the denial of his motion to suppress. Morris' lawyer announced that his client's plea was subject to the "same conditions." The state did not challenge defense counsel's statements then. Appellants filed timely notices of appeal. We find that the state's arguments challenging appellate jurisdiction are not supported by the record.

The key issue on appeal is the sufficiency of the evidence to support the denial of the motions to suppress. In both cases, sheriff's office dispatcher Margaret Dyer testified that while on duty on November 12, 1991, she dispatched a radio notice at 1:26 A.M. that a "Signal 24" had just occurred at the Tom Thumb Food Store in Baker. The log indicated that Deputy Tyson had arrived at the crime scene at 1:34 A.M. Dyer's initial dispatch reported four suspects in the armed robbery, but sometime within eight minutes she issued a follow-up dispatch stating that three black males were suspects at large.

The state's chief witness in both cases was Crestview police officer Danny Ellis, a 17-year resident of Baker, Florida, with 3 1/2 years of law enforcement experience. Officer Ellis testified that at about 1:26 A.M. on November 12, 1991, he heard the sheriff's office radio dispatch reporting an armed (handgun) robbery involving several black males who had fled on foot. Ellis attested to his knowledge of the area and described the Tom Thumb Food Store as located at the corner of Highway 4 and the Baker-Galliver Cutoff Road in Okaloosa County. The crime site has only three possible roadway escape routes: 1) the cutoff road heading in a westerly direction toward the town of Holt, 2) Highway 4 North leading to the towns of Baker and Munson and eventually reaching the Alabama state line, and 3) Highway 4 South toward the town of Milligan and an intersection with a main thoroughfare, Highway 90, which connects with the city of Crestview to the east.

When he heard the initial dispatch, Officer Ellis was sitting in his patrol car at Highway 90 and Old Bethel Road. Knowing that the immediate vicinity of the crime site is agricultural, without any residential areas close enough to be reached on foot, he surmised that a vehicle located somewhere nearby might be involved. Immediately he drove at a very high speed two miles to a grocery store at a second intersection, Highways 90 and 4 at Milligan, which is the third listed escape route and is situated four miles from the Tom Thumb Food Store.

The officer explained why he chose that location rather than one of the other two potential escape routes:

The Baker area is not heavily populated with blacks. Another way would be the Baker-Galliver Cutoff toward Holt. I've lived in Holt, and I don't know of any blacks that live in Holt. The only other way would be to come down Highway 4 toward Crestview where the biggest population of blacks live.

While traveling to the second intersection, Ellis encountered no vehicular traffic. At 1:28 A.M., Ellis backed up an elevation and engaged his bright headlights so that he could observe any vehicle and subjects that might be approaching in a southerly direction on Highway 4 from the crime site. He stated that during his midnight patrol duties, he has seen hardly any traffic in the mostly rural area. Sometimes he has intercepted only one vehicle during a 3-4-hour period. However, within 1 1/2 minutes of his arrival at the second intersection, Ellis observed the only vehicle, a pickup truck with several black males, approach the intersection from the direction of the food store. It turned left and headed east toward Crestview. The appearance of the truck coincided with what Ellis gauged was the approximate driving time from the vicinity of the crime. After another 1 1/2 minutes passed without Ellis' seeing any other traffic, he decided to catch up with the truck.

The officer explained that for safety and investigative reasons, he used his bright headlights as he approached the moving truck. Initially, he had observed that the pickup carried three or perhaps four black males. As he pulled behind the truck, he determined that it carried three individuals. Two of the occupants were ...