Santiago v. State

• Decision Date: 26 February 2014
• Docket Number: No. 4D12–2773.,4D12–2773.
• Citation: 133 So.3d 1159
• Parties: Robert Eric SANTIAGO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

133 So.3d 1159

Robert Eric SANTIAGO, Appellant,

v.STATE of Florida, Appellee.

No. 4D12–2773.

District Court of Appeal of Florida,

Fourth District.

Feb. 26, 2014.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

The Defendant, Robert Eric Santiago, appeals from the trial court's denial of his motion to suppress, and the court's failure to adhere to its oral pronouncement issued at the conclusion of his violation of probation hearing. We agree with Defendant on both issues, and reverse.

Defendant pled guilty to robbery and was given a sentence that included probation. Under the terms of his probation, Defendant was ordered to comply with Florida's standard conditions of supervision that included a requirement that he report to his probation officer every month. He was also informed that while on probation he could not violate any law, use intoxicants in excess, or use drugs or narcotics unless prescribed. The instant case arises from Defendant's purported violations of those conditions.

One month later, a police officer made a traffic stop on the car Defendant was driving after the officer smelled marijuana emanating from the vehicle. Another officer who responded to the scene after the stop believed Defendant was impaired and ordered him to perform field sobriety tests. When Defendant refused to take a breathalyzer, he was arrested for DUI and for driving without a valid driver's license.

Three days after the DUI arrest, police received an anonymous phone call about a car parked at the end of a dead end street at 2:00 a.m. with its headlights periodically flashing on and off. When officers arrived at the location, they found Defendant and a female passenger inside the vehicle. The keys were in the ignition so music could play, but the engine was not running. One officer detected the odor of alcohol on Defendant's breath. Defendant stated he had consumed a couple beers, but he was not driving. When asked about his presence at that location, he gave the officers a vague explanation. Defendant was ordered to step out of the car, and when he did, a small plastic bag containing cocaine dropped from his lap onto the ground. The officers then searched the car and located a short plastic straw that they deemed to be drug paraphernalia. The female passenger, who owned the vehicle, told the officers that both the cocaine and paraphernalia belonged to Defendant. Defendant was arrested for possession of cocaine and drug paraphernalia.

The State subsequently charged Defendant with six violations of probation for committing a DUI, operating a motor vehicle without a valid license, possessing cocaine, possessing drug paraphernalia, failing to report to his probation officer, and changing his residence without the consent of his probation officer.

Defense counsel filed a motion to suppress both the cocaine and paraphernalia, claiming these items were obtained during the course of an unlawful detention. The motion argued that the initial report to dispatch came from an anonymous caller bereft of any facts that insinuated criminal activity was afoot. Further, it was alleged there was no legal justification for an investigatory stop because the officer merely smelled alcohol on Defendant's breath with no indicia of intoxication. Counsel also argued this was not a consensual encounter because Defendant could not have objectively believed he was free to leave since the officers positioned themselves on both sides of the vehicle. The State responded that the officers were engaged in a consensual encounter with Defendant, and could reasonably detain him for further investigation because he was observed in the driver's seat, smelling of alcohol, with keys in the car's ignition.

The trial court denied the motion to suppress, finding that the interaction was consensual, and that had Defendant's car been moving, the police would not have had reasonable cause to make a stop. The court also concluded that the officers had a reasonable basis to temporarily detain Defendant by ordering him out of the car for further investigation and officer safety based on the lateness of the hour, the suspiciousness of Defendant's explanation for being there, and the odor of alcohol.

At the violation of probation hearing, Defendant conceded that he had failed to report to his probation officer as instructed. On the other alleged violations, his counsel argued that the arresting officer for the DUI charge did not see Defendant driving and could not verify that he was behind the wheel of the car. As a result, the DUI charge was never filed, and the driving with a suspended license charge was nolle prossed. Counsel also argued there was no evidence to suggest that the straw discovered during the vehicle search incident to the cocaine arrest was illegal paraphernalia, because it was never tested for drug residue. As for the allegation of cocaine possession, the defense argued that there were two people in the car and the cocaine could have belonged to his female passenger. Finally, as to Defendant's alleged violation for an unauthorized change of residence, Defendant's mother testified that he never moved from her house.

The trial court orally announced its finding that Defendant violated his probation by failing to report for supervision, possessing cocaine, and operating a motor vehicle with a revoked license. Defendant was sentenced to ten years in prison with credit for time served. Although the court orally pronounced Defendant guilty of only three counts from the affidavit, the subsequent written order of probation revocation found that Defendant violated all six conditions. This appeal followed.

The two issues presented are: 1) whether the trial court erred by denying Defendant's motion to suppress; and 2) whether the trial court's written order of probation revocation failed to conform to its oral pronouncement.

As the trial court correctly noted, a police officer may approach a citizen to ask questions without a founded suspicion of criminal activity. Thus, the interaction between the Defendant and the officers on the dead end street began as a consensual encounter. Popple v. State, 626 So.2d 185, 187 (Fla.1993). However, in distinguishing between different levels of police-citizen encounters, the Florida Supreme Court in Popple characterized an order to exit a vehicle as a “seizure,” thus converting the consensual encounter into a detention that required a well-founded articulable suspicion of criminal activity. Id. at 187–88.

In making reasonable-suspicion determinations, appellate courts must look at the “totality of the circumstances” in each case to determine whether the detaining officer has a “particularized and objective basis” for suspecting criminal activity. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); see also State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003). In the instant case, the trial court pointed to three factors which it believed established the officer's reasonable suspicion of criminal activity: the suspiciousness of Defendant's explanation for being at that location, officer safety, and “perhaps” the alcohol and driving. However, the record before us does not support the court's conclusion that those factors created reasonable suspicionto justify an investigatory stop of Defendant.

First, the court noted that Defendant's explanation that he and the female passenger were just “hanging out” seemed “a little suspicious.” But, a mere suspicion or hunch is not enough to justify temporary detention. As Florida courts have explained, “the officer must be able to articulate the supporting facts, and the suspicion must be well-founded” to support an investigatory stop. Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004) (citing Love v. State, 706 So.2d 923, 924 (Fla. 2d DCA 1998)). In a similar case decided by this court, Miranda v. State, 816 So.2d 132, 133 (Fla. 4th DCA 2002), the defendant was observed inside a legally parked car, with the engine off and windows partially rolled down. The officer testified that she knew the car did not belong there, the area was high in crime, and area residents did not “hang out” in their vehicles with the windows rolled down. Id. When the officer became suspicious and approached the car, the defendant was seen making furtive movements while holding an object in his hand that she could not identify. Id. Because she did not know whether the object was a weapon, she ordered the defendant out of the car for her safety. Id. at 134. As he was getting out of the vehicle, the officer discovered contraband. Id. Given those facts, this court reversed the trial court's denial of the defendant's motion to suppress, holding that the circumstances described did not give rise to a well-founded, articulable suspicion of criminal activity required for an investigatory stop. Id. at 135.

In the instant case, in addition to his statement to the officers that he was simply “hanging out,” Defendant also told them that he lived nearby and pointed to his residence “somewhere towards the middle of the street.” The testimony also showed that the Defendant was observed listening to music in his car along with the female passenger when the officers arrived on scene. No other facts were presented at the hearing to support a well-founded suspicion that Defendant was not “just hanging out,” nor did the trial court elaborate on why it found Defendant's explanation suspicious. Viewed in their entirety, these facts are insufficient to form a particularized and objective basis for reasonable suspicion of criminal activity.

Second, the officer testified that he ordered the Defendant out of the car for “officer safety purposes.” In Terry v. Ohio, 392 U.S....