State v. Brooks

• Decision Date: 09 November 1995
• Docket Number: No. 94-2484,94-2484
• Parties: 20 Fla. L. Weekly D2501 STATE of Florida, Appellant, v. Brandon Ferrell BROOKS, Eubia Undre Walker, Appellees.
• Court: Florida District Court of Appeals

Page 440

662 So.2d 440

20 Fla. L. Weekly D2501

STATE of Florida, Appellant, v. Brandon Ferrell BROOKS, Eubia Undre Walker, Appellees.

No. 94-2484.

District Court of Appeal of Florida,

Fifth District.

Nov. 9, 1995.

Appeal from the Circuit Court for Orange County; Alice Blackwell-White, Judge.

Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan and Rebecca Roark Wall, Assistant Attorney Generals, Daytona Beach, for Appellant.

James E. Taylor, Jr., Orlando, for Appellee Brooks.

James B. Gibson, Public Defender, and Sean K. Ahmed, Assistant Public Defender, Daytona Beach, for Appellee Walker.

PER CURIAM.

AFFIRMED.

HARRIS and ANTOON, JJ., concur.

W. SHARP, J., dissents, with opinion.

W. SHARP, Judge, dissenting.

I dissent in this suppression of evidence case, because in my view the record failed to establish any basis to conclude that Brooks (the driver) and Walker (the passenger), defendants in this case, were unlawfully detained following a valid traffic stop. While Brooks and Walker were being detained, waiting for the result of a radio request for a computer check on Brook's license and a warrant check on both, a back-up deputy arrived with a sniff-dog, who alerted on the car. That gave the deputies probable cause to search the car, resulting in the discovery of a large amount of cocaine.

The trial judge, relying solely on the video tape of the stop and testimony by Deputy McCowen, concluded that McCowen delayed calling in information on the defendants for approximately six minutes, because he suspected the two were drug-couriers without any founded reason, and he hoped the K-9 Unit would get there before he completed writing his ticket. In my view, the trial judge applied a purely subjective standard to this stop, which is not appropriate. See State v. Daniel, 20 Fla.L.Weekly S497, --- So.2d ---- (Fla. Sept. 28, 1995). After having viewed the tape a number of times myself, I can see nothing wrong with the conduct of this traffic stop and temporary detention.

If this stop involves an unlawful detention, I fear we have made it almost impossible for police officers to conduct their duties without a challenge. The only other decisions I have found in this country, which support the result in this case, are from California. That state apparently has statutes which forbid a police officer who has stopped a driver for a traffic infraction from making a license and warrants check via the radio, unless it is a serious offense. See People v. McGaughran, 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207 (1979). To the contrary, a warrant and license check is standard practice in this state for all traffic stops.

In the past few years, there have been a multitude of cases involving traffic stops, resulting in the subsequent discovery of contraband in the stopped vehicles. Most have unique factual twists, but a few basic principles have been established. If the stop is for a traffic violation and is not pretextual, the police officer is permitted to talk with the driver, tell him or her why they were stopped, and request the person's driver's license, the car registration and information about ownership of the car. See State v. Bass, 609 So.2d 151 (Fla. 5th DCA 1992); Johnson v. State, 537 So.2d 117 (Fla. 1st DCA 1988); The police officer may also ask the driver questions beyond the scope of those matters, although the driver need not answer them. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

The police officer normally calls or radio's in the tag number on the car almost as soon as it is stopped, to be sure the car is not stolen. The information concerning the driver, the driver's license and the car registration takes some time to gather, and it is usually sent in later. This is not an unreasonable search and seizure, or as in this case, an unlawful detention. See State v. Hewey, 144 Vt. 10, 471 A.2d 236 (1983). Florida has no policy against allowing a police officer to radio in information for a license and warrants check on drivers stopped for all traffic violations. It is done in most cases, and McCowen testified he always does so, to be sure he is not dealing with fugitives. The radio check on licenses and warrants normally takes approximately twenty minutes to receive a response. State v. Nugent, 504 So.2d 47 (Fla. 4th DCA 1987).

Another principle evolved in these cases is that the sniff of a K-9 dog around the exterior of a car is not a search or seizure. ¹ Thus, if the officer who stops the car for a traffic violation happens to have a sniff dog aboard in the police car, it is lawful to have the dog sniff the exterior of the stopped vehicle at any time while the process of writing the traffic citation, and receiving radio responses is going on. State v. Taswell, 560 So.2d 257 (Fla 3d DCA 1990); State v. Russell, 557 So.2d 666 (Fla 2d DCA 1990). Similarly no argument for unlawful detention can be made, in the case of an officer with a dog aboard who happens by shortly after the traffic stop, while the traffic ticket is being written. See State v. Bass, 609 So.2d 151 (Fla 5th DCA 1992); Blackmon v. State, 570 So.2d 1074 (Fla 1st DCA 1990).

Nor should an unlawful detention be created in the situation where a deputy calls for a K-9 Unit, even if he has no founded suspicion, if the Unit arrives before the police officer has written the traffic citation, and received proper radio ok's on the vehicle and driver. McNeil v. State, 656 So.2d 1320 (Fla. 5th DCA 1995). Only if the car and driver are detained passed that point should the unlawful detention argument arise. ² However, prior to that point, if the K-9 dog alerts on the exterior of the vehicle, the police have probable cause to search the interior, and further detention of the driver and passenger(s) is lawful. ³

The record in this case is composed only of Deputy McCowen's testimony and the video tape made at the time of the stop. McCowen's automatic camera on his car ran the entire time, commencing with pulling Brooks' black Buick over on the Turnpike, through to Brooks' and Walker's ultimate arrest. The tape showed that the stop was made at approximately 1:28 p.m., on a sunny day in January. From the camera's point of view, and McCowen's also, there was only one person in the stopped car. The driver, Brooks, immediately climbed out of the Buick and approached the police officer with his wallet and license. He was a young, white man in his early twenties, and was not wearing a shirt. The officer explained why the stop was made. He also asked to see the "paper work" on the car.

They approached the driver's side of the car at approximately 1:29 p.m. Brooks reached in towards the glove box to get the registration papers for the car. It was at this moment that McCowen first saw a second person in the car. From the camera's view, slowly another head appears in the front passenger seat. McCowen testified at the hearing that this surprised him a bit. He immediately backed off and brought Brooks back to the front of his car.

McCowen testified that when he first saw Walker, he appeared to be sleeping in the fully reclined front passenger seat. He observed Walker was not wearing a seat belt. McCowen testified he intended to discuss that with him and give him a warning, since it is a citable offense in Florida not to wear a seat belt.

After returning to the police car, at approximately 1:30 p.m., McCowen called in the Buick's tag via his radio. He told the person who responded that there were two occupants in the stopped black Buick. At this point, McCowen asked Brooks who the passenger was, and where had they come from.

Brooks told McCowen an unusual story. McCowen testified he thought it was "odd." Brooks said they were driving his brother's car. They had driven from Georgia to Miami that day to pick up the passenger's sister, who had been beaten up by her boy-friend, and was in the hospital. He was not sure where they had gone in Miami, but he thought he could find it again, if he had to. When they arrived in Miami, someone, probably the boyfriend of the passenger's sister, told them the sister had left. They thought she had caught a bus back to Georgia, but were not sure. They were thus on their way back to Georgia by themselves. The deputy remarked it seemed odd that they had made such a long trip, and did not know where the sister was going.

The deputy then asked about the passenger. Brooks could not immediately recall his passenger's given name. He called him "Fish". He said he thought his name was "Eubia", or something like that. After a few minutes he recalled the man's last name was Walker. But, Brooks had asserted that he had known him for several years, and the sister as well. At the hearing the deputy testified Brooks appeared to be nervous. The tape does not reveal nervousness so much as it shows Brooks gesturing while telling his story, looking across the highway, up in the air, but, as the officer said, not really making eye contact with him.

At this point in the stop, McCowen called for a back-up, the K-9 Unit, that he thought was patrolling the Turnpike somewhere nearby. He used a code word, so Brooks was not aware such a call had been made. McCowen had no founded suspicion to search the car, or detain it any longer than necessary to discharge his duties in enforcing the traffic laws. However, his suspicions were aroused. The clock on the camera sets this call at 1:33 p.m., give or take some seconds one way or the other.

Continuing his conversation with Brooks, McCowen asked him if he were on probation. Brooks said he was on probation for a charge in Georgia which arose out of a violation of a hunting law of some kind. The deputy asked him for his "traveling" papers, explaining that when a person in another state leaves the state after being put on probation, that person's probation officer usually provides the person with papers to show consent to travel to another state....