Dermio v. State

• Decision Date: 08 May 2013
• Docket Number: No. 2D12–647.,2D12–647.
• Citation: 112 So.3d 551
• Parties: Adam DERMIO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

112 So.3d 551

Adam DERMIO, Appellant,

v.STATE of Florida, Appellee.

No. 2D12–647.

District Court of Appeal of Florida, Second District.

April 5, 2013.

Rehearing Denied May 8, 2013.

Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Adam Dermio appeals his judgments and sentences for armed trafficking in illegal drugs (four to fourteen grams), possession of a firearm by a convicted felon, possession of a controlled substance with intent to sell or deliver, possession of cannabis (under twenty grams), and possession of drug paraphernalia. Dermio filed a motion to suppress which addressed evidence obtained as a result of an encounter between Dermio and a Manatee County sheriff's deputy as well as Dermio's confession. The motion was denied. Thereafter, Dermio entered a no contest plea to the charges while specifically reserving his right to appeal the denial of the motion. For the reasons set forth herein, we affirm.¹

I. Background

In March 2010, a Manatee County sheriff's deputy came across Dermio's car parked in the parking lot of a local bar around 3:30 in the morning. The car's motor was running and the lights were on. The deputy pulled in behind Dermio's car and turned on her emergency lights. Because there was a barrier in front of Dermio's car, he would not have been able to back out of the parking space without hitting the deputy's car. As the deputy got out of her car and walked up to Dermio's car, she noticed that Dermio, who was sitting in the driver's seat, had his head cocked to the left side and had a cell phone lodged between his shoulder and cheek. However, the deputy noted that Dermio's eyes were closed and that he appeared to be asleep. The deputy shined her flashlight in the window, but when Dermio did not respond, the deputy tapped her flashlight on the window. At that point, Dermio awoke but he seemed “really out of it” and incoherent. The deputy then asked Dermio to roll down the window. When Dermio did not respond, the deputy identified herself as being with the sheriff's office and asked him a second time to roll down the window. Still Dermio did not respond. After the deputy made a third request to roll down the window with no response and because Dermio still appeared to be incoherent, the deputy testified that she opened the door to the car because she was concerned for Dermio's safety. Upon opening the door, the deputy smelled the odor of burnt marijuana and observed a metal pipe on the center console. Eventually, Dermio's car was searched, and in addition to the pipe, a firearm, marijuana, and varying types and amounts of other drugs ² were located. Dermio was transported to the sheriff's office, and after being advised of his Miranda³ rights, he made incriminating statements.

The deputy testified that while she was attempting to talk to Dermio, his eyes were droopy and the deputy had a suspicion that a crime had been committed, to wit: driving under the influence. The deputy testified that her suspicion was based on the facts that the car was running, the lights were on, and Dermio was asleep behind the wheel. On cross-examination, the deputy acknowledged that she had observed no traffic infractions and that Dermio's car was legally parked. When defense counsel inquired why the deputy conducted “an investigatory stop,” the deputy responded that the “original purpose was to make sure that [Dermio's] safety was okay, that he was fine. But also in my head was this is a possible DUI.” The deputy further testified that prior to opening the door to Dermio's car, she did not smell any odor of alcohol or marijuana.

A detective with the sheriff's office conducted the interview with Dermio at the sheriff's office. The deputy who transported Dermio to the sheriff's office testified that she overheard the detective telling Dermio that if he provided truthful statements, she [the detective] could help him. According to the deputy, the detective “didn't define help, but she did say she could help him.” Dermio subsequently made incriminating statements. The interview was not recorded.

The detective testified that she told Dermio that “depending on what information he gave, ... I might be able to talk to the judge” and that she might be able to “help [him] out with something.” The detective testified that the Sheriff's Department policy was to “let [defendants] know if there's anything that we can do that comes of the information [they] give us, then we will talk at a sentencing hearing.” However the detective clarified that she did not make any promises to Dermio and specifically told him there were “[n]o promises.” The detective testified she did not make any representations to Dermio about what type of sentence he could receive.

In the order denying Dermio's motion to suppress, the court found that the deputy who initially discovered Dermio approached his car to determine if he needed medical attention and that “[the deputy] investigated further ‘for his safety.’ ” The circuit court, relying on Mincey v. Arizona, 437 U.S. 385, 392–93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), held that the deputy's conduct did not violate the Fourth Amendment prohibition against unreasonable searches and seizures because officers may make a warrantless entry and search where they believe someone is in need of immediate aid.

Addressing Dermio's confession, the circuit court credited the detective's testimony that while she told Dermio that she would speak at his sentencing hearing, she did not make any promises to him. The circuit court also noted that there was no evidence of “promises to interact with the State and no quid pro quo.”

Subsequent to the denial of his suppression motion, Dermio agreed to enter a no contest plea to the charges. At the change of plea hearing, Dermio's counsel notified the court:

We have agreed that the motion to suppress in this case, upon which there is previously entered an order denying the motion, was dispositive as to the search and seizure issue, and we are expressly reserving our right to appeal that order denying the dispositive motion to suppress. And I state that because in the order denying the motion, which came out sometime after the motion was filed, it did not address the dispositive nature of the motion. So it's something that we agreed upon, that it was a dispositive motion.

The circuit court inquired whether the State agreed with defense counsel's representation, but the State did not respond to the question, instead addressing the issue of minimum mandatory sentencing. The circuit court eventually found “that the motion to suppress that was previously filed ... is a dispositive motion.” Neither the circuit court nor the State clarified whether the motion was dispositive in its entirety or whether it was dispositive, as defense counsel represented, only on the search and seizure issue.

After Dermio's plea was accepted, the circuit court adjudicated him guilty and sentenced him to a ten-year minimum-mandatory sentence for armed trafficking in illegal drugs (four to fourteen grams), three years on the charge of possession of a controlled substance with intent to sell or deliver, and to time served on the remaining charges.

II. Analysis

Our standard of review on a motion to suppress is a mixed question of law and fact; we give deference to the circuit court's factual findings if they are supported by competent, substantial evidence. See Greider v. State, 977 So.2d 789, 792 (Fla. 2d DCA 2008) (citing Bautista v. State, 902 So.2d 312, 314 (Fla. 2d DCA 2005)).

A. There was no unlawful search and seizure.

Because the Fourth Amendment prohibits unreasonable searches and seizures, it is necessary to determine whether a seizure occurred. See id.

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), our supreme court defined three levels of police-citizen encounters.

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. Next on the escalating hierarchy of police-citizen encounters is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For a police officer to lawfully detain a citizen, “an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, 626 So.2d at 186. The third and final level of a police-citizen encounter “involves an arrest which must be supported by probable cause that a crime has been or is being committed.” Id.

Greider, 977 So.2d at 792.

It is well recognized that police officers may conduct welfare checks and that such checks are considered consensual encounters that do not involve constitutional implications. Id. (recognizing that officer's making initial contact with driver of car who was lawfully parked late at night in a park was an appropriate welfare check where officer testified he was concerned because towels were obscuring the car windows); Dep't of Highway Safety & Motor Vehicles v. Luttrell, 983 So.2d 1215, 1217 (Fla. 5th DCA 2008) (opining that officer's making contact with driver of parked car supported “a finding of a consensual encounter” and that “[t]he officer was not required to negate each and every possible act or circumstance that might transform a consensual encounter into an investigatory stop”).

Here, the deputy clearly testified that based on the time, location, Dermio's appearance, the fact that the car motor was running, and the fact the lights were on, she was concerned for Dermio's safety. The deputy's classification...