State of Fla. v. CUOMO

• Decision Date: 31 August 2010
• Docket Number: No. 1D09-5537.,1D09-5537.
• Parties: STATE of Florida, Appellant, v. Jeremiah CUOMO, Appellee.
• Court: Florida District Court of Appeals

43 So.3d 838

STATE of Florida, Appellant, v. Jeremiah CUOMO, Appellee.

No. 1D09-5537.

District Court of Appeal of Florida, First District.

August 31, 2010.

COPYRIGHT MATERIAL OMITTED.

Bill McCollum, Attorney General; Meredith Charbula and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee; Alton O. Paulk, Assistant State Attorney, Panama City, for Appellant.

Robert S. Sombathy of Isler, Sombathy & Sombathy, P.A., Panama City, for Appellee.

PER CURIAM.

The State appeals the trial court's two orders granting the defendant's motion to suppress any evidence obtained as a result of his allegedly unlawful arrest. The State argues that, based on the totality of the circumstances, the officers had probable cause to arrest the defendant at the time he was taken into custody. We agree and reverse.

I. Facts

The relevant facts are largely undisputed. In the early morning hours of April 4, 2009, Kelly Jo Holley was shot in a residence in the Derby Woods subdivision in Lynn Haven, Florida. At approximately 1:20 or 1:30 a.m., while walking his dog in the subdivision, Oliver Schmidt observed a navy blue or black BMW drive past him and park in an odd location in the subdivision. The location was a couple hundred feet, maybe less, from the residence where Holley was shot. The man exited the BMW, spoke briefly to Schmidt, shut his door, and walked away. Schmidt continued walking down the street a couple of blocks and eventually lost sight of the BMW.

Schmidt then heard a gunshot. A couple seconds later, he called 911. Maybe a minute or two later, while still on the phone, he heard a vehicle start up and speed down the street. The sounds were coming from the direction where the BMW had been parked. When he reached a point where he could see the vehicle, Schmidt saw a navy blue or black sporty vehicle speed out of the subdivision and head west on Highway 390. He could not positively identify the vehicle as the BMW.

While en route to the scene, Lieutenant David Ward was told that there was a shot fired in the subdivision and a dark colored vehicle was seen fleeing from the subdivision and heading west on Highway 390.

Based on that information, he put out a BOLO for a black sporty vehicle heading west on Highway 390. When he arrived at the scene, he discovered that a shot was fired from outside the residence into the front bedroom and Holley had been shot in the back. There were at least four other individuals in the residence at the time of the shooting, including Stephanie Pugh, who lived at the residence, but no one saw the shooter. When Lieutenant Ward asked the occupants who could have fired the shot, Pugh threw out the defendant's name as a possible suspect because he was Holley's former boyfriend and had been allegedly harassing and/or stalking Holley. When she heard that a black BMW had been involved, she told Lieutenant Ward that the defendant drove a black BMW. After confirming that Schmidt had seen a BMW, Lieutenant Ward updated the BOLO for a black BMW heading west on Highway 390 and the defendant as the driver.

About 15 minutes after Lieutenant Ward arrived on the scene and about a minute after the updated BOLO went out, Deputy Trey Stanford spotted a black BMW heading west on Highway 390, about four or five miles from the scene and proceeded to pull the vehicle over. He called the tag in and was told that the tag came back to the defendant. When Deputy Stanford made contact, the driver identified himself as the defendant. At 1:54 a.m., Deputy Stanford detained the defendant, handcuffing him and placing him in the back of his patrol car as a suspect in the shooting. At 2:00 a.m., Deputy Stanford transported the defendant to the Sheriff's Office for questioning and the vehicle was impounded. The vehicle was subsequently searched.

At 4:20 a.m., at the Sheriff's Office, Schmidt identified the defendant's vehicle as the vehicle he saw parked in the subdivision. Sometime before 10:52 a.m., the defendant was transported to jail. At 12:00 p.m., Investigator Mitch Pitts wired the attorney visitation room where he hoped to secretly record a conversation between the defendant and his mother during their visit. The defendant made incriminating statements to his mother regarding the shooting.

The defendant was later charged with aggravated battery with a firearm and shooting into an occupied dwelling. He filed a motion to suppress any evidence seized from his vehicle, Schmidt's identification of his vehicle, and his statements to his mother. He argued that, when he was transported to the Sheriff's Office, it amounted to a de facto arrest without probable cause and any evidence obtained as a result of that unlawful arrest was subject to suppression. The State took the position that the officers had probable cause to arrest ...