Johnson v. State

• Decision Date: 26 February 1997
• Docket Number: No. 96-0282,96-0282
• Citation: 689 So.2d 376
• Parties: 22 Fla. L. Weekly D531 Anthony JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 376

689 So.2d 376

22 Fla. L. Weekly D531

Anthony JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 96-0282.

District Court of Appeal of Florida,

Fourth District.

Feb. 26, 1997.

Rehearing Denied March 27, 1997.

Michael D. Gelety, Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant, Anthony Johnson, was serving the probation portion of his sentence for a second degree murder when the lower court revoked his probation, and sentenced him to 25 years incarceration, based on his possession of a 9mm handgun. Appellant challenges the trial court's denial of his motion to exclude the handgun from evidence based on an alleged Fourth Amendment violation. We find that the firearm was properly admitted into evidence and affirm.

Appellant argues, and the State conceded at oral argument, that the initial stop was improper and without probable cause or a reasonable suspicion. Indeed, the police had merely received an anonymous tip that a robbery had taken place and found appellant in the area where the robbery had allegedly occurred. No description of the alleged armed robber had been given, and the police encountered appellant while he was getting out of his car.

Officer Campbell advised appellant to raise his hands above his head. Appellant did not comply, so the officer positioned his spotlight on appellant and repeated the order. Appellant still did not comply; he simply stood there and looked at the officer. The officer drew his gun and pointed it at appellant, but appellant still would not put his hands up. Eventually appellant raised his right hand. His left hand remained at his side.

At this point, about a minute after the confrontation began, Deputy Williams arrived and joined Officer Campbell in ordering appellant to raise his hands several more times. Finally, appellant turned and drew what appeared to be a handgun. Appellant threw the item over a fence and ran away. Both the item, a 9mm handgun, and the fleeing appellant were eventually located--the handgun, immediately, and appellant, about a month later.

In reviewing an order on a motion to suppress, this court must interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to sustaining the trial court's ruling. Reaves v. State, 669 So.2d 352 (Fla. 4th DCA 1996). While we are reluctant to follow the State's urging and say that there was no seizure because appellant failed to fully comply with the officer's order to raise both hands, the record supports the conclusion that even if there was a seizure initially, appellant's subsequent flight terminated that seizure. Viewed in the light most favorable to the trial court's ruling, the evidence supports a finding that the discarding of the weapon occurred during appellant's retreat from whatever restraint he was under.

In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), officers gave chase after a group of juveniles fled upon seeing them. The State conceded there, as here, that there was no "reasonable suspicion" to justify stopping the youths. Id. at 624 n. 1, 111 S.Ct. at 1548 n. 1; see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When the defendant, Hodari, turned and saw an officer in pursuit, he tossed away what appeared to be a piece of crack cocaine. The officer tackled the defendant, handcuffed, and arrested him. Hodari sought to have the rock suppressed. The court explained:

As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been "seized" within the meaning of the Fourth Amendment. If so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted.

Hodari D., 499 U.S. at 623, 111 S.Ct. at 1548. The court found that Hodari was not seized at the time the item was discarded and that, therefore, the cocaine was properly admitted. Id.

In State v. Woods, 680 So.2d 630 (Fla. 4th DCA 1996), the police had ordered the defendant, Woods, to stop, but he ran away. In the process of running away, Woods dropped a handgun and some cocaine. Although Woods had been ordered to stop, this court held that he was not seized prior to dropping the contraband:

[A]n unlawful seizure takes place only if the person either willingly obeys or is physically forced to obey the police request. As such, there is no unlawful seizure when the person "drops then stops," even where the drop occurs after an order to stop.

680 So.2d at 631.

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