Cole v. State
| Decision Date | 20 April 2016 |
| Docket Number | No. 3D14–2574.,3D14–2574. |
| Citation | 190 So.3d 185 |
| Parties | Albert COLE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
Appellant, Albert Cole (“Cole”), appeals from the final judgment of conviction and sentence on the basis that the court erred in denying Cole's motion to suppress physical evidence, and in denying three challenges for cause during jury selection. On appeal, the State commendably concedes that the trial court committed reversible error in at least one of its denials of the for-cause challenges, warranting a new trial. Upon our review of the record, we agree and reverse for a new trial. We nevertheless address the first issue, and hold that the trial court properly denied the motion to suppress because the defendant voluntarily abandoned the drugs found under the defendant's car, and the police inevitably would have discovered the drugs found on defendant's person.
Cole was charged with trafficking in cocaine, tampering with evidence1 and possession of drug paraphernalia after a traffic stop. The defense filed a motion to suppress the evidence found during the traffic stop. At the suppression hearing, the following relevant testimony was presented:
Officer Rosa Olivo was on patrol during the evening of February 3, 2012 when she saw a car with a faded and illegible temporary tag, as well as a tinted film covering the brake lights, making it impossible to determine if the vehicle's lights were on. Before Officer Olivo could initiate a stop of the car, the driver suddenly turned into the opposite lane of traffic without signaling and parked in the grassy swale. Officer Olivo activated her lights and siren, exited her car, and began walking toward the car. Cole was the driver and only occupant of the car. As Officer Olivo headed toward Cole's car, Cole began to exit his car. Officer Olivo told Cole to remain inside. Cole handed Olivo his license and registration, and Officer Olivo described Cole as very nervous, sweating and stuttering. In response to her questions, Cole told Officer Olivo he was going to meet a “good friend” who lived nearby, but when asked, Cole could not provide the friend's name. Given Cole's behavior, Officer Olivo requested backup.
Officer Lisa Lobello arrived as backup within a few minutes of Officer Olivo's request. Upon Lobello's arrival, Officer Olivo returned to her police vehicle to conduct further investigation related to the traffic stop. Officer Lobello engaged in small talk with Cole, who was still seated in his car. Officer Lobello described Cole as looking past her as they spoke, as if he was “visually trying to clear an area.” Cole informed Officer Lobello that he was on parole. Cole was sweating, bouncing his legs up and down, and looked afraid. Both of his hands were clenched in fists, and he was tightly gripping an ink pen in his right hand. This caused concern for Officer Lobello, who believed that the pen was being held in such a way that it could be used as a weapon. Officer Lobello asked Cole to step out of his car so she could conduct a patdown search. She grabbed his wrist before he stepped out of the car and shook the pen out of his hand, then helped Cole out of the car. While taking him out of the car, Lobello twisted Cole's arm and turned him around so he was facing away from her and toward his own car. As she turned him around, Officer Lobello saw Cole flick his wrist. Lobello saw dust rising from the dirt ground and believed Cole had thrown something under the car. Lobello asked Cole if he had thrown something, but Cole said no. Officer Lobello put Cole up against his car and handcuffed him in order to pat him down. Lobello felt what seemed like plastic bags inside Cole's pocket, but she could not tell whether they were empty. She asked Cole what she was feeling and Cole said they were plastic bags. Officer Lobello removed the bags from Cole's pocket. They appeared empty, and Lobello did not see any drug residue inside the bags.
A third officer arrived at the scene who searched Cole more thoroughly. Inside of Cole's sock the officer found a bag containing crack cocaine and a bag of powder cocaine. A K–9 officer came to the scene and searched the area under Cole's car. The police retrieved additional bags of crack cocaine. Inside Cole's car police found additional empty bags matching those found in Cole's pocket.
Following this testimony, the defense argued Lobello did not have reasonable suspicion that Cole was armed with a dangerous weapon, thereby rendering the patdown illegal. The defense also argued that pulling the baggies out of Cole's pocket was unlawful, because it was not immediately apparent from the patdown search that Cole had a weapon or contraband on his person.
The State argued, inter alia, that the drugs would have been inevitably discovered. The defense contended that the inevitable discovery doctrine did not apply, given that Cole's action in throwing the drugs did not occur until after Lobello ordered Cole out of the car for the patdown, grabbed his wrist, twisted his arm, and turned him around. The defense asserted that Cole's action in throwing away the contraband amounted to involuntary abandonment, made in response to an unlawful seizure.
We apply a mixed standard of review to an appeal of an order on a motion to suppress. We must “defer to the trial court's factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question....” State v. Hankerson, 65 So.3d 502, 506 (Fla.2011). The evidence must be construed in a manner most favorable to sustaining the ruling below. Cotton v. State, 901 So.2d 241 (Fla. 3d DCA 2005).
Cole concedes the initial traffic stop was lawful. Thus, the first issue we must address is whether Officer Lobello had reasonable suspicion to conduct the subsequent patdown search of Cole. Florida's stop and frisk law requires “not probable cause but rather a reasonable belief on the part of the officer that a person temporarily detained is armed with a dangerous weapon.” State v. Webb, 398 So.2d 820, 824 (Fla.1981) ; see also J.L. v. State, 727 So.2d 204 (Fla.1998).
Section 901.151(5), Florida Statutes (2012) (entitled “Stop and Frisk Law”), provides:
Cruse, 121 So.3d at 97–98 (quoting Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999) ).
Additionally, “[n]ervous, evasive behavior is another pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). “Reasonable suspicion can exist even though the suspicious activity is consistent with innocent activity.” Hernandez, 784 So.2d at 1126.
Here, in light of the totality of circumstances, we conclude there was reasonable suspicion to justify a patdown search of Cole. The stop occurred at approximately 9 p.m. The officer noticed that Cole was sweating, appeared nervous, was fidgety (bouncing his legs up and down), and his fists were tightly clenched. He could not answer some of the officer's questions, and though he said he was going to see a “good friend,” Cole could not provide the friend's name or address. Further, just prior to the stop, Cole had made a sudden U-turn into oncoming traffic lanes and parked in a swale facing the wrong direction. Finally, Cole had a pen clenched tightly in one of his hands when the officer approached and initiated contact with him.
The case at hand is distinguishable from State v. Herron, 68 So.3d 330 (Fla. 3d DCA 2011) on which Cole relies in his brief. In Herron, the State argued:
the pat-down was lawful because Herron appeared “excruciating[ly] nervous, fidgety,” could not produce a driver's license, proof of insurance, or car registration, and appeared to be “looking out the window [for] an avenue of escape.” The State further point[ed] out that the officer did not feel comfortable returning to his vehicle to run a DAVID System identification or mug shot...
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