Knox v. State, No. 1D19-499

• Citation: 296 So.3d 989
• Decision Date: 10 June 2020
• Docket Number: No. 1D19-499
• Parties: Michael Sherodcharles KNOX, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

296 So.3d 989

Michael Sherodcharles KNOX, Appellant,

v.STATE of Florida, Appellee.

No. 1D19-499

District Court of Appeal of Florida, First District.

June 10, 2020

Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.

Lewis, J.

Appellant, Michael Sherodcharles Knox, appeals his conviction and sentence for possession of a firearm by a convicted felon, challenging the trial court's denial of his motion to suppress. For the reasons that follow, we affirm.

BACKGROUND

Appellant was charged with burglary of a structure while armed with a firearm (Count 1), possession of a firearm by a convicted felon (Count 2), grand theft of a firearm (Count 3), and possession of a firearm by a convicted felon (Count 4). The first three counts pertained to the burglary of AD-TEK, a gun retail store, on or about February 24, 2018. Count 4 alleged that the offense charged therein occurred on or about February 27, 2018, and it was severed for trial. This appeal concerns only Count 4.

Appellant sought the suppression of physical evidence on the ground that it was obtained as a result of a de facto arrest without an arrest warrant or probable cause. At the suppression hearing, Officer Petroczky, who had been employed by the Tallahassee Police Department for thirteen years, testified that he paid close attention to the intel bulletins that were disseminated within the police department shortly after the February 24, 2018, burglary of the AD-TEK gun store because a lot of guns were stolen. The bulletins contained photographs of the potentially suspect vehicle, captured on surveillance video by a nearby business contemporaneously to the burglary, and he thought it was a white 1990s model Toyota Corolla.

On February 28, 2018, dispatch received a call about a man selling from his white vehicle firearms the caller believed were stolen. The caller described the clothing, build, and hair of the suspect, gave the suspect's precise location, and stated that the suspect "went by Meat" and his first name might be "Mike." The caller indicated that they would call back with the suspect vehicle's license plate number after checking the photograph they had taken of it on their phone. The caller did, in fact, call dispatch a second time to relay that information. The caller wished to remain anonymous, but provided his or her phone number so they could be contacted if needed. The caller has not been identified.

The police ran the license plate number given by the caller, and "it came back to a 1993 white Toyota Corolla" that was registered to Appellant. Officer Petroczky arrived at the location specified by the caller in less than ten minutes and observed that Appellant matched the description given by the caller. The officer also "immediately recognized [Appellant's] vehicle as the one from the [intel] bulletin"—all the details matched, including the black molding strip along the side of the car, the damage around the side mirror, the tinted windows, and the unique after-market rims.

Officer Petroczky then drove around in his unmarked vehicle for about thirty minutes, making several passes at the suspect vehicle and watching the people around it.¹ The officer described his observations as follows:

[Appellant] was holding something at his chest level but just on the other side of the Toyota Corolla. So I could not see exactly what was in his hand. There was another subject .... He was standing next to Mr. Knox and looking at whatever it was that Mr. Knox was holding in his hand at chest level. The mannerisms that they were using or displaying suggested that what they were doing was secretive, guarded, hidden behind the car and hidden close to the chest. From my training and experience I thought that there was something illegal about their actions.

The behavior displayed by the other male was of significant excitement. In other words, it wasn't kind of a nonchalant hand-to-hand transaction which I've experienced with most street level narcotics deals but that there might be something else, I guess, more exciting ... about what he was looking at.

Based on all of the information that I had at the time, that solidified my suspicion that he might be showing him a firearm.

Based on the totality of the circumstances, two or three unmarked police vehicles pulled into the parking lot, and the officers exited with their guns drawn and pointed at the suspects. Appellant, who was vacuuming his car at the time, put his hands up and lay down on the ground. Petroczky secured Appellant's hands behind his back and patted him down for officer safety. The officer explained that there was a "significant concern" for officer safety given the reason for the stop and the number and type of firearms that had been stolen during the burglary. Additionally, the police had checked Appellant's criminal background and although Petroczky could not remember the details at the suppression hearing, he recalled that Appellant had a significant history that involved guns or violence. During the pat-down, the officer found a pistol in a holster in Appellant's waistband. A subsequent search of Appellant's car led to the discovery of firearms inside a bag that was lying on Appellant's trunk. The majority of those firearms were identified as having been stolen from AD-TEK during the burglary.

Defense counsel conceded that it was "a very suspicious situation," but argued that the police lacked probable cause to make a de facto arrest because the private sale of guns is not illegal. The parties disagreed about whether the caller was a citizen informant or an anonymous tipster. The State contended that based on the totality of the circumstances, the police certainly had reasonable suspicion to conduct a stop and pat-down and even had probable cause for an arrest.

The trial court denied the motion to suppress as follows:

All right. I don't think it's a very close call. I'm going to deny the motion to suppress and make some findings.

First, I do find that the caller was a citizen informant. There is no suggestion that this caller was working off charges for law enforcement or was being paid for information. It was simply a citizen calling in. They had the phone number for the citizen. The citizen could have been easily identified. There was certainly sufficient information from the citizen informant to make an arrest in this case.

The officer independently had seen a photo of the suspect vehicle from the burglary, had identified this vehicle at the scene with unique features as being the same vehicle from the burglary that just occurred four days before; observed, himself, suspicious activity; was aware that the registered owner had a significant arrest history; and quickly upon the defendant being taken down found a firearm on his person.

I disagree with the defense contention that detention has to involve probable cause. There's a myriad of cases that find that detention at gunpoint can occur based upon reasonable suspicion, particularly under circumstances where there's every reason to believe firearms are present, which turned out to be the case. It's not even close that there was reasonable grounds for suspicion under these facts.

I find there was actually probable cause. I think there was sufficient probable cause to make an arrest and do the search at that point in time so I deny the motion to suppress.

In a subsequent written order denying the motion to suppress, the trial court made similar findings and concluded that based on the totality of the officer's independent observations, the information provided by the citizen informant, and the officer's confirmation of that information, the police had probable cause—more than the reasonable suspicion required—to stop, detain, and then arrest Appellant.

The jury found Appellant guilty as charged, and the trial court adjudicated him guilty and sentenced him to twelve years of imprisonment with a three-year mandatory minimum term for actually possessing a firearm. This appeal followed.

ANALYSIS

A trial court's ruling on a motion to suppress is presumed correct, and we must interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to sustaining the trial court's ruling. State v. Dickey , 203 So. 3d 958, 961 (Fla. 1st DCA 2016). It is for the trial court to make credibility determinations and to weigh the evidence. Id. We defer to the trial court's findings of fact if supported by competent, substantial evidence, but review de novo the application of the law to those facts. Id. An arrest must be supported by probable cause, whereas an investigatory stop requires reasonable suspicion of a crime. Id.

On appeal, Appellant does not dispute that the police conducted an investigatory stop when they initially detained him at gunpoint. Indeed, as we have explained, "an investigatory stop [is not] automatically converted into an arrest when an officer draws a weapon and directs the suspect to lie on the ground; instead, ‘the police are entitled to take such action as is reasonable under the circumstances.’ " Young v. State , 270 So. 3d 471, 474 (Fla. 1st DCA 2019) (quoting Carroll v. State , 636 So. 2d 1316, 1318 (Fla. 1994), where the Court found that the officer was justified in being concerned and was entitled to search for weapons during the investigatory stop because he was questioning a person who might have recently committed a murder); see also Saturnino-Boudet v. State , 682 So. 2d 188, 191 (Fla. 3d DCA 1996) ("[T]he officer may detain the individual even at gunpoint and/or by handcuffs for the officer's safety without converting the Terry² stop into a formal arrest."). As such, the question before us is whether the police had reasonable suspicion to stop Appellant.

"[T]o effect a constitutionally-permissible investigatory...