Lewis v. State
| Decision Date | 23 July 2014 |
| Docket Number | No. 4D12–4587.,4D12–4587. |
| Citation | 143 So.3d 998 |
| Parties | Marcus Kennard LEWIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Carey Haughwout, Public Defender, and Louis G. Carres, Special Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
The parameters of the Fourth Amendment are on review in this appeal from a criminal conviction and sentence for robbery and aggravated assault, both with a firearm and while wearing a mask. The defendant argues the trial court erred in denying his motion to suppress because law enforcement exceeded a consensual encounter with the defendant without reasonable suspicion. He also argues the trial court erred in admitting evidence of collateral crimes. We agree that the court erred in denying his motion to suppress and therefore reverse in part. We see no error in the admission of the collateral crime evidence and affirm on that issue.
On December 22, 2010, the defendant entered a food mart wearing a bright-yellow knit face mask and carrying a black handgun. He placed a bag, resembling a lady's purse, on the counter and demanded money. The clerk thought the defendant was familiar with the store because he pointed the gun precisely where money was held for the next shift. The clerk gave the money to the defendant, who exited the store and went east.
A witness, pulling out of a gas station across the street, saw the defendant approach the food mart, pull the yellow mask over his face, and enter the store. The witness called 911. He watched the defendant leave the store and go east.
The witness followed the suspect. At one point, the defendant stopped, turned around, and yelled for the witness not to call the police. This allowed the witness to get a good view of the defendant's face. The police responded to the scene, but did not find the defendant.
Six days later, the defendant entered the same food mart, where two other clerks were working. The defendant wore a black shirt, black trousers, a face mask, and gloves. He brandished a firearm and ordered one of the two clerks to give him the money. The defendant placed a bag on the counter and, after receiving the money, pointed his weapon at the same location where money was held for the next shift. After the clerk filled the bag with money, the defendant again left in an easterly direction.
The first deputy on scene met with the two clerks. One of them showed the deputy the direction in which the suspect left. The deputy issued a BOLO and began searching for the suspect. The deputy saw a male fitting the suspect's physical description, but wearing different clothing. The deputy shined his searchlight on him. Because he did not seem startled and did not take flight, the deputy continued on his way.
A second deputy in a marked police vehicle with his lights engaged was participating in a perimeter sweep. He saw the defendant, who looked over his shoulder at least twice in the direction of the food mart. No one else was walking in the area at the time.
The second deputy blocked the defendant's path with his vehicle, stepped out of the car, and approached him. He announced his presence and said: “Hey, come over here; I'd like to talk with you.” The defendant complied.
Upon making contact, the deputy placed his hands on the defendant's chest and back, admittedly to see if the defendant's heartbeat was elevated or if his shirt was hot or cold. The defendant told the deputy that his cousin drove him home to get money, and he was walking back to McDonalds to meet his cousin. At this point, the deputy felt his suspicion had been raised enough to detain the defendant. He placed the defendant in the back of his patrol car to await a show-up.1
The first deputy returned to where the defendant was being detained. He recognized him as the person he saw earlier. He questioned him without giving him Miranda warnings. The deputy returned to where he originally saw the defendant and started searching the bushes. He recovered a brown glove, a navy-blue hooded sweatshirt, a checkered purse, a firearm, a yellow mask, and shoes.
Several weeks later, a detective conducted a photo lineup with the witness from the first robbery, who positively identified the defendant. Based on that identification, the State charged the defendant with the first robbery. The yellow mask and firearm were tested and found to contain the defendant's DNA. The State then charged the defendant with the second robbery.
Prior to trial on the second robbery, the defendant moved to suppress all evidence obtained as a result of the stop. He argued that the encounter with the second deputy was not consensual because a reasonable person would not have felt free to leave. He argued that the encounter was an illegal stop because the second deputy did not have reasonable suspicion that he was engaged in criminal activity. Because the stop was illegal, the defendant argued that all evidence found as a result, including the DNA evidence, was the fruit of an illegal stop and should be suppressed. He also argued that his statements must be suppressed because he was never read Miranda warnings.
The State responded that the stop was legal and within the scope of a consensual encounter. Alternatively, if the stop was illegal, the evidence would have been inevitably found by officers.
The trial court denied the motion to suppress, finding that the defendant was not detained and his statements to the second deputy were part of a consensual encounter. The court also found that the first deputy's identification of the defendant in the back of the police car need not be suppressed because the initial stop was legal. The court, however, suppressed the defendant's statements to the first deputy because he was not read Miranda warnings.
The case proceeded to trial. The jury found the defendant guilty of robbery with a firearm while wearing a mask, and aggravated assault with a firearm while wearing a mask. The court sentenced the defendant to fifteen years' imprisonment for the robbery, with a ten-year mandatory minimum for possession of a firearm, and five consecutive years on the aggravated assault charge, with a three-year mandatory minimum for possession of a firearm. From his conviction and sentence, the defendant now appeals.
On appeal, the defendant maintains the trial court erred in denying his motion to suppress because the deputy's touching of him exceeded a consensual encounter. The State responds that the interaction between the deputy and the defendant was a consensual encounter, and the defendant was free to ignore the deputy's questions and continue on his way. The State argues that reasonable suspicion was unnecessary because it was a consensual encounter.
We have a mixed standard of review. We defer to the trial court's factual findings, but independently determine whether those facts amount to reasonable suspicion as a matter of law. Miranda v. State, 816 So.2d 132, 134 (Fla. 4th DCA 2002).
We agree with the defendant that what started as a consensual encounter transformed into a stop without the requisite reasonable suspicion when the deputy placed his hands on the defendant. As such, the trial court erred in denying the motion to suppress. This case is similar to Copeland v. State, 717 So.2d 83 (Fla. 1st DCA 1998).
There, deputies were patrolling a high-crime area when they recognized two individuals, one of whom was Copeland. Id. at 84. The deputies spoke with them until one of the deputies noticed a bulge in Copeland's pocket and squeezed it. Id. After discovering that it was not hard or metallic, the deputy asked what the object was. Id....
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- Wright v. State
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Lewis v. State, 4D13–1041.
...raised this same argument in a separate case because the evidence obtained was used in both cases. In that other case, Lewis v. State, 143 So.3d 998 (Fla. 4th DCA 2014), we held that the circuit court erred in denying the defendant's motion to suppress. In light of that holding, the state h......