Hines v. State

• Decision Date: 15 July 1999
• Docket Number: No. 98-2535.,98-2535.
• Citation: 737 So.2d 1182
• Parties: Randy HINES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

737 So.2d 1182

Randy HINES, Appellant, v. STATE of Florida, Appellee.

No. 98-2535.

District Court of Appeal of Florida, First District.

July 15, 1999.

Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and J. Ray Poole, Assistant Attorney General, for Appellee.

BROWNING, J.

Randy Edward Hines appeals a judgment and sentence entered upon his plea of no contest to the third-degree felony of possession of cannabis (marijuana), with intent to sell, within 1,000 feet of a school. Defense counsel moved to suppress the cannabis as the product of an unlawful search. After an evidentiary hearing, the trial court denied the motion to suppress. Upon entering the plea, Hines reserved the right to appeal the denial of his motion, which the trial court agreed is dispositive. The trial court accepted the plea and imposed a guidelines sentence of 30 months in prison, concurrent to any other sentence, plus court costs. Hines contends that the trial court erred as a matter of law in relying upon Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), and King v. State, 696 So.2d 860 (Fla. 2d DCA 1997), to support the denial of his motion. Upon a careful review of the record as well as the applicable Florida statute and case law, we conclude that the trial court reversibly erred in denying the motion to suppress evidence that was the direct product of an unlawful search. Accordingly, we reverse the judgment and sentence and remand with directions that Hines be discharged. A trial court's ruling on a motion to suppress is a mixed question of fact and law. The standard of review of the findings of fact is whether competent, substantial evidence supports the findings. Findings of historical fact should be reviewed only for "clear error", with "due weight to be accorded to inferences drawn from those facts" by the lower tribunal. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); C.G. v. State, 689 So.2d 1246, 1248 (Fla. 4th DCA 1997). We must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the trial court's ruling. Owen v. State, 560 So.2d 207, 211 (Fla.1990). We review the trial court's application of the law to the facts de novo. Ornelas, 517 U.S. at 699,116 S.Ct. 1657; United States v. Harris, 928 F.2d 1113, 1115-16 (11th Cir.1991). As the appellant, Hines bears the burden of demonstrating "prejudicial error" pursuant to section 924.051(7), Florida Statutes (1997).

The Facts

The events surrounding the search of Hines are not materially disputed. The State's only witness at the suppression hearing was Michael Simmons, a deputy sheriff with the Escambia County Sheriff's Office. He testified that sometime after 11:00 P.M. on December 19, 1997, he was patrolling alone in what he characterized as "a high narcotics area" known for marijuana and crack cocaine deals and violent, drug-related incidents involving shootings and beatings. At a location within 1,000 feet of an elementary school, he observed a vehicle parked in the center of the street, with the motor running and no lights on. The car was positioned so that no one could drive around it. The area was pitch black except for the illumination from the headlights of the patrol vehicle. From his past observations of the narcotics trade, Deputy Simmons knew that it is fairly common for someone interested in transacting a drug deal simply to stop the vehicle, turn off the lights, and wait until someone else approaches. Simmons stopped to investigate the situation. He exited his patrol car and observed Keith Oliver standing off to the side of the stationary vehicle.

At the deputy's request, Oliver produced his driver's license and said that the vehicle was his. Oliver indicated that he had just moved his vehicle to let another one pass by. When he was asked whether his driver's license was valid, Oliver answered that it was suspended.¹

Simmons then pointed his flashlight at the driver's side of Oliver's car and observed Hines in the passenger's seat. As the deputy talked to him, Hines appeared to be very nervous and kept trying to place his right hand into his pocket. Although Simmons asked to see Hines' hands and told him not to put them in his pockets where Simmons could not see them, Hines disregarded these instructions. Simmons testified that he did not know why Hines was trying to place his hand in his pocket. Simmons testified that as he was trying to keep an eye on both men under the unusual circumstances, he was concerned mainly about a possible gun or other weapon. The deputy immediately went around to Hines' side and removed him from the vehicle, while Oliver remained standing in front of the car.

Facing Hines outside the car, the deputy asked whether he was carrying anything that he was not supposed to have, such as a weapon. Hines failed to answer, and he kept trying to put his hand in his pocket despite Simmons' repeated requests not to do so. At the direction of Simmons, who still was concerned about a possible weapon, Hines turned around and placed his hands upon the car. The deputy immediately grabbed the back of Hines' pants and reached directly into the pocket where Hines had been placing his hand. Simmons felt a cloth bag inside the pocket containing plastic bags, inside which he could feel "a leafy substance." The deputy, who admittedly realized that the object he felt was not a weapon, then removed the cloth Crown Royal bag, which held 17 small, individually packaged plastic baggies and one large baggie containing a total of 39.1 grams of cannabis.

On cross-examination, Simmons testified that he could not see the bag or anything else inside Hines' pocket before searching him. Simmons admitted having no idea what was inside the pocket. On the night in question, Hines was wearing a big gray jacket over his pants. The deputy indicated that his main concern was a weapon, for he did not understand why Hines kept ignoring the request to keep his hand out of the pocket. Simmons said that he wanted to get his hands upon whatever Hines kept trying to grab inside the pocket.

The Law

At the end of the testimony, defense counsel argued that in reaching inside Hines' pocket, Deputy Simmons went beyond his authority to conduct a limited, exterior pat-down search for weapons. However, the trial court adopted the State's suggestion that the search of the pocket was proper, based on the "plain feel" doctrine in Dickerson, 508 U.S. at 366, 113 S.Ct. 2130, and on the facts and holding in King, 696 So.2d at 860. We conclude that the lower tribunal's reliance upon these two factually distinguishable decisions, and its determination that the search was lawful, constitute a misapplication of the law to the essentially undisputed facts.²

The deputy's initial encounter with Oliver and Hines did not result from a literal physical stop of their vehicle, as the car already was stationary, without illumination and in a position straddling the dark road where other drivers could not safely get around it. Rather, Simmons' contact with the two individuals was more in the nature of an investigatory detention. Clearly, Simmons would have been remiss in his duty as a law enforcement officer if he had not stopped to investigate the situation further based on his knowledge of these facts: 1) there were obvious potential road hazards arising from the location of the vehicle in the middle of the street with no lights and no surrounding illumination; 2) Oliver was standing outside the vehicle under circumstances suggesting that he might need assistance; 3) it was nearly midnight, and the neighborhood had a reputation as a high-crime area rife with drug transactions and attendant violence; and 4) from his training and experience, the deputy recognized that some persons intent on engaging in narcotics transactions sit in dark vehicles waiting for a prospective drug trader to appear. King, 696 So.2d at 861-62 (where patrol officers noticed seemingly disoriented defendant standing in middle of road at 7:30 P.M., they would have been derelict in their duty had they not stopped to investigate the situation).

The request for Oliver's name and driver's license amounted to no more than a consensual police-citizen encounter independent of the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); State v. Baldwin, 686 So.2d 682, 685 (Fla. 1st DCA 1996); State v. Barnett, 572 So.2d 1033 (Fla. 2d DCA 1991) (officer's request for defendant's driver's license and vehicle identification data constituted police-citizen encounter that did not trigger protections of Fourth Amendment). Hines notes, however, that where an officer stops a vehicle in order to issue a non-criminal traffic citation, and there is no suspicion of criminal activity, the officer may not, without more information, detain the individual(s) longer than is reasonably necessary to issue a citation. Cresswell v. State, 564 So.2d 480 (Fla.1990); E.H. v. State, 593 So.2d 243 (Fla. 5th DCA 1991) (officer's pat-down search of passenger in vehicle stopped for issuance of traffic citation was improper, absent any indication or suspicion of criminal activity; defendant's mere act of reaching into his pocket did not justify officer's belief that defendant was armed with dangerous weapon).

Given the particular circumstances of his initial encounter with Oliver and Hines, the deputy, acting without back-up support, was justifiably concerned about keeping them within his line of sight and under control as he investigated why they were there under suspicious, possibly hazardous circumstances. Upon shining his flashlight upon Hines, Simmons noticed that Hines was very nervous and kept reaching for or grabbing his pocket. Asking Hines to get out of the vehicle represented a de minimis intrusion...