State v. Bartee, No. 89-3329

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS
Citation568 So.2d 523
Parties15 Fla. L. Weekly D2699 STATE of Florida, Appellant, v. David BARTEE, Appellee.
Docket NumberNo. 89-3329
Decision Date22 October 1990

Page 523

568 So.2d 523
15 Fla. L. Weekly D2699
STATE of Florida, Appellant,
v.
David BARTEE, Appellee.
No. 89-3329.
District Court of Appeal of Florida,
First District.
Oct. 22, 1990.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahasse, for appellant.

Barbara M. Linthicum, Public Defender, and Lawrence M. Korn, Asst. Public Defender, Tallahasse, for appellee.

JOANOS, Judge.

The state appeals an order granting appellee's motion to suppress physical evidence, i.e., contraband. The narrow issue in this case is whether the contraband was abandoned voluntarily. We affirm.

The record reflects that appellee was encountered by officers assigned to execute arrest warrants in a Gainesville residential area. Appellee was not the subject of an arrest warrant. One of the officers approached appellee and asked if he had seen the direction taken by a suspect who had fled upon sight of the officer. The officer wore a bullet-resistant vest and a raid jacket with a sheriff's star pinned on it, and he carried a firearm which was covered by his raid jacket. Appellee pointed to a duplex, and said the person in question had gone into the duplex. The officer described appellee as very nervous, and very hesitant to talk to him. The conversation was brief, and when the officer stepped back slightly, appellee ran, whereupon the officer ran after him. The officer testified that he told appellee to stop, and asked why he was running.

Appellee continued to run, followed by the officer. When the officer was approximately twenty yards from appellee, he saw appellee reach into his right pocket. At that point, the officer reached for his gun. The officer then observed appellee throw a pill bottle. He retrieved the bottle, determined that it contained crack cocaine, and

Page 524

radioed to a fellow officer to arrest appellee for possession of cocaine. When asked if he ever told appellee to put his hands in the air, the officer stated, "I told him I wanted to see his hands. I didn't know if he was going for a gun or what."

The trial court ruled that the officer was without cause to chase appellee or to order appellee to stop, that such acts constitute seizure under the Fourth Amendment, and that appellee's subsequent act of throwing the contraband resulted from the officer's unlawful conduct. After making such determination, the trial court granted the motion to suppress evidence.

Where a police chase or "stop" is unjustified, the question becomes whether contraband seized as a result of the unlawful stop was abandoned voluntarily, or whether the abandonment was an involuntary act directly attributable to the unlawful stop. State v. Arnold, 15 F.L.W. D292, (Fla. 4th DCA Jan. 31, 1990); State v. Oliver, 368 So.2d 1331, 1334-35 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980). If the abandonment was voluntary, no search of the person occurred. Arnold, 15 F.L.W. D292-293; Oliver, 368 So.2d at 1334. If the abandonment was involuntary as being tainted by the unreasonable police stop, "such a search has taken place under the fruit of the poisonous tree doctrine." Oliver, 368 So.2d at 1334-1335, citing Wong Sun v. U.S., 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

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6 practice notes
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • 24 Junio 1993
    ...that the evidence must be suppressed. The court found the State's theory of abandonment unpersuasive. Perez also cites State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990), as being in conflict with the opinion below. In that case, a police officer asked the defendant if he had seen the direc......
  • Anderson v. State, No. 89-00739
    • United States
    • Court of Appeal of Florida (US)
    • 23 Enero 1991
    ...243 (Fla. 2d DCA), cert. denied, 336 So.2d 604 (Fla.1976); Spann v. State, 529 So.2d 825 (Fla. 4th DCA 1988). See also State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990) for a discussion of this issue. In Stanley, this court suppressed evidence which had been thrown out of a car after an il......
  • State v. Bartee, 76960
    • United States
    • United States State Supreme Court of Florida
    • 24 Junio 1993
    ...Defender and Lawrence M. Korn, Asst. Public Defender, Tallahassee, for respondent. KOGAN, Justice. We have for review State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990), in which the district court certified its decision as in direct conflict with State v. Perez, 592 So.2d 1099 (Fla. 3d DCA......
  • Valdez v. State, No. 90-800
    • United States
    • Court of Appeal of Florida (US)
    • 22 Enero 1991
    ...voluntary abandonment of the subject cocaine on the public street. See Kehoe v. State, 521 So.2d 1094 (Fla.1988); State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980); Freyre v. State, 362 So.2d 98......
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6 cases
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • 24 Junio 1993
    ...that the evidence must be suppressed. The court found the State's theory of abandonment unpersuasive. Perez also cites State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990), as being in conflict with the opinion below. In that case, a police officer asked the defendant if he had seen the direc......
  • Anderson v. State, No. 89-00739
    • United States
    • Court of Appeal of Florida (US)
    • 23 Enero 1991
    ...243 (Fla. 2d DCA), cert. denied, 336 So.2d 604 (Fla.1976); Spann v. State, 529 So.2d 825 (Fla. 4th DCA 1988). See also State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990) for a discussion of this issue. In Stanley, this court suppressed evidence which had been thrown out of a car after an il......
  • State v. Bartee, 76960
    • United States
    • United States State Supreme Court of Florida
    • 24 Junio 1993
    ...Defender and Lawrence M. Korn, Asst. Public Defender, Tallahassee, for respondent. KOGAN, Justice. We have for review State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990), in which the district court certified its decision as in direct conflict with State v. Perez, 592 So.2d 1099 (Fla. 3d DCA......
  • Valdez v. State, No. 90-800
    • United States
    • Court of Appeal of Florida (US)
    • 22 Enero 1991
    ...voluntary abandonment of the subject cocaine on the public street. See Kehoe v. State, 521 So.2d 1094 (Fla.1988); State v. Bartee, 568 So.2d 523 (Fla. 1st DCA 1990); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980); Freyre v. State, 362 So.2d 98......
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