Melton v. State, 96-3007

• Decision Date: 15 August 1997
• Docket Number: No. 96-3007,96-3007
• Citation: 698 So.2d 1287
• Parties: 22 Fla. L. Weekly D1956 Boris MELTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1287

698 So.2d 1287

22 Fla. L. Weekly D1956

Boris MELTON, Appellant, v. STATE of Florida, Appellee.

No. 96-3007.

District Court of Appeal of Florida Fifth District.

Aug. 15, 1997.

Rehearing Denied Sept. 11, 1997.

James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Childs, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Boris Melton appeals the denial of his motion to suppress evidence of cocaine found on his person following a stop of the convertible vehicle in which he was a passenger. Suspecting the driver of the vehicle to be a drug dealer he intended to arrest, a police officer on bicycle patrol requested support units to stop the vehicle. When a support unit stopped the vehicle, the back seat passenger, the appellant, stood up on the seat of the convertible and put his right hand down the front of his pants. One of the officers then drew his weapon and ordered the appellant to remove his hand from his pants. Appellant complied, but in doing so, also pulled out of his pocket a plastic baggie containing crack cocaine. Appellant then fled on foot but was quickly apprehended and arrested.

At the hearing on appellant's motion to suppress, the trial court found that reasonable suspicion existed to justify the stop of the vehicle because the bicycle officer believed the driver of the vehicle to be a person he suspected of committing a crime. In this appeal, the state asserts that the stop was justified for another reason, to wit: a valid arrest warrant was outstanding for the person for whom the bicycle officer was searching and this officer reasonably mistook the driver of the vehicle as that person.

The state's argument is rejected because it was not raised below. State v. Schmitz, 450 So.2d 1254 (Fla. 3d DCA 1984). Further, no evidence was presented below to support the state's assertion on appeal that an arrest warrant, in fact, existed for the person thought to be the driver. Cf. McCrea v. State, 475 So.2d 1357 (Fla. 5th DCA 1985) (arrest of individual valid, where officer, reasonably and in good faith, mistook person for another that officer had arrest warrant for); Neal v. State, 456 So.2d 897, 898 (Fla. 2d DCA 1984), rev. denied, 461 So.2d 115 (Fla.1985) (where police have valid outstanding warrant to arrest one person, and reasonably mistake a second person for the first person, then the arrest of the latter person is valid). In Neal and McCrea, unlike the instant case, the police had an outstanding arrest warrant for the person that bore a physical resemblance to the person detained.

In the cases relied on by the trial court, Tennyson v. State, 469 So.2d 133 (Fla. 5th DCA 19...