Curtis v. State, 99-1085.

• Decision Date: 12 January 2000
• Docket Number: No. 99-1085.,99-1085.
• Parties: Rodney CURTIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

748 So.2d 370

Rodney CURTIS, Appellant, v. STATE of Florida, Appellee.

No. 99-1085.

District Court of Appeal of Florida, Fourth District.

January 12, 2000.

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

HAZOURI, J.

Rodney Curtis (Curtis) appeals from his conviction and sentence for possession of cocaine. Curtis pled nolo contendere to the charge and reserved his right to appeal the denial of his motion to suppress. We affirm the denial of his motion to suppress. At the hearing on the motion to suppress, Curtis and the arresting officer, Joel Winfrey (Winfrey), testified as to the facts leading up to the arrest. There was considerable conflict between Curtis's and Winfrey's versions as to what transpired; however, the trial court found that Winfrey was credible and chose to accept his testimony. We are required to accept the trial court's determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. See State v. Brown, 592 So.2d 308 (Fla. 3d DCA 1991) (Gersten, J., dissenting). Although we are required to accept the trial court's determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the historical facts to the law establishes an adequate basis for the trial court's finding of probable cause. See Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

On October 11, 1998, Winfrey came in contact with Curtis and Jimmie Lee Moss (Moss) while on routine patrol in the 600 block of Northeast Second Avenue, Fort Lauderdale, Florida. Winfrey approached Curtis and Moss because he wanted to get to know the people in the area. The initial contact between Winfrey and Curtis and Moss was consensual. Winfrey asked Curtis and Moss for their names, dates of birth and social security numbers. Winfrey then ran a check for outstanding warrants.

While speaking to Curtis, Winfrey saw what he identified as a crack cocaine rock in Curtis's mouth partially concealed by his upper lip. Winfrey was within two feet of Curtis when he made this observation. At the time of the encounter, Winfrey had been a police officer for approximately five years and had been involved in hundreds of arrests involving crack cocaine. In Winfrey's experience, the upper lip is a common place for concealing crack cocaine. During cross-examination of Winfrey, the following colloquy transpired:

Q And you made mention in your testimony a moment ago, and also in deposition, that you observed something underneath Rodney's lip?

A Yes.

Q Partially concealed under his lip?

A Correct.

Q And you believed at that point in time for it be [sic] suspect crack cocaine; correct?

A Correct.

Q Now, is it possible it could have been something else?

A In my experience it appeared to be suspect crack cocaine.

Q My question was, I'll repeat it, could it have been something else?

A It could have been, yes.

Q Like what?

A Like anything that resembles crack cocaine.

Q And that could be a number of things; right?

A Correct.

Q It could be a piece of paper, gum, candy?

A Crack cocaine has a very distinct look about it. And I was very close and the object appeared to me to be suspect crack cocaine. Is it possible that it could have been something else? Yes, but highly unlikely.

Upon seeing the crack cocaine, Winfrey ordered Curtis to spit it out. Curtis complied and Winfrey field tested the substance, which tested positive for cocaine. Curtis was arrested and taken into custody.

At the conclusion of the suppression hearing, the trial court found that the initial encounter between Winfrey and Curtis was consensual. When Winfrey saw what he believed to be crack cocaine partially concealed under Curtis's front lip, Winfrey then had founded suspicion converting the consensual encounter into an investigatory stop. The trial court thereafter concluded that based upon a founded suspicion, Winfrey properly commanded Curtis to spit out the crack cocaine although the trial court found Winfrey did not have probable cause to arrest Curtis at that point. After the crack cocaine rock field tested positive for cocaine, the trial court concluded that Winfrey had probable cause to arrest Curtis. For these reasons the trial court denied Curtis's motion to suppress.

The trial court erred in concluding that a founded suspicion entitled Winfrey to order Curtis to spit out the crack cocaine; however, we have concluded that Winfrey had probable cause to believe that a crime was being committed in his presence and, therefore, the order to spit out the crack cocaine was a lawful search incident to an arrest. Even where a trial court's stated reasons for ruling are erroneous, an appellate court will affirm if the result is right but for the wrong reason. See State v. R. M., 696 So.2d 449 (Fla. 4th DCA 1997); Howard v. State, 462 So.2d 31 (Fla. 1st DCA 1984).

It is well settled there are three levels of encounters between the police and the citizenry. Judge Green's opinion in Saturnino-Boudet v. State, 682 So.2d 188 (Fla. 3d DCA 1996), summarized the three levels of encounters and the application of the Fourth Amendment. As the court in Saturnino-Boudet explained:

The first and least intrusive level is commonly referred to as the "consensual encounter." In the consensual encounter, an officer may question anyone on the street without founded suspicion, and unless the officer attempts to prevent the individual from exercising the right to walk away, any such questioning will usually constitute a consensual encounter rather than a stop. No Fourth Amendment protection is implicated at this level.

The second level of a police encounter involves the Terry stop or the temporary investigative "stop and frisk". A Terry stop is permissible if the detention is temporary and reasonable under the circumstances and only if the police officer has a wellfounded suspicion that the individual detained has committed, is committing, or is about to commit a crime. This temporary detention is deemed to be a less intrusive invasion of privacy than a formal arrest and, therefore, may be constitutionally accomplished merely on articulable or founded suspicion of criminal activity. The founded suspicion needed to justify an investigatory stop is fact specific to each case, but it is to be based upon the totality of the circumstances as viewed by an experienced police officer. "At this level ... the officer may conduct a limited search or frisk of the individual for concealed weapons where the officer is justified in believing the person is armed and dangerous to the officer or others." Additionally, the officer may detain the individual even at gunpoint and/or by handcuffs for the officer's safety without converting the Terry stop into a formal arrest. The individual, however, is afforded the protections of the Fourth and Fourteenth Amendments to the United States Constitution and corresponding provisions of the state constitution.

The third and final level of a police encounter is that of the formal arrest. This encounter is the most intrusive invasion of personal privacy and consequently requires a greater evidentiary showing in order to be reasonable, to wit, probable cause to believe that the person arrested has committed a crime. As with the second level, the individual is afforded all protections guaranteed in both the federal and state constitutions.

Id. at 191-92 (citations omitted).

Curtis contends the crack cocaine rock should be suppressed based on this court's decision in Doney v. State, 648 So.2d 799 (Fla. 4th DCA 1994), and our recent decision in State v. Terrell, 731 So.2d 800 (Fla. 4th DCA 1999), because Winfrey did not have the requisite probable cause to order Curtis to spit out the crack cocaine. The facts in Doney, Terrell and the instant case are strikingly similar. In Doney, a uniformed police officer, while on routine patrol and driving a marked vehicle, witnessed a black male give something small to Doney with his thumb and forefinger, and Doney hand the black male paper currency. The officer claimed that this transaction consisted of behavior which he would interpret as a drug transaction. After witnessing this exchange and failing in his attempt to make contact with the black male, the officer pulled his car up behind Doney and got out. Doney stopped and said, "I knew I shouldn't have been messing with that black guy." The officer claimed that this statement reinforced his belief that a drug transaction had taken place, so he stepped closer and asked Doney his name. When Doney responded, the police officer observed what he believed to be cocaine rocks in Doney's mouth. At the suppression hearing, the officer testified that he observed something in Doney's mouth when Doney made his initial statement, but he was unsure of what it was until he asked Doney his name, and Doney responded. The officer then asked Doney to spit the objects out, which he did. The objects field tested positive for cocaine. At the hearing on the motion to suppress, the officer testified that he had been involved in over 1,000 drug arrests and had observed hand to hand drug exchanges at least 1,000 times.

Our court, after reviewing previous case law, determined that the officer witnessing a hand to hand transaction between Doney and the black male, along with his suspicion that...