State v. Gay, 5D01-3101.

• Decision Date: 14 June 2002
• Docket Number: No. 5D01-3101.,5D01-3101.
• Citation: 823 So.2d 153
• Parties: STATE of Florida, Appellant, v. Keith Dewayne GAY, Appellee.
• Court: Florida District Court of Appeals

823 So.2d 153

STATE of Florida, Appellant, v. Keith Dewayne GAY, Appellee.

No. 5D01-3101.

District Court of Appeal of Florida, Fifth District.

June 14, 2002.

Rehearing Denied August 19, 2002.

Robert A. Butterworth, Attorney General, Tallahassee and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellant.

James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellee.

PALMER, J.

The State of Florida appeals the trial court's order granting Keith Gay's motion to suppress the fruits of an allegedly illegal search. Since the motion to suppress failed to allege that an illegal search had occurred, let alone that any fruits of a search were seized as a result thereof, we reverse.

Gay was charged with committing the crimes of fleeing a law enforcement officer, resisting an officer without violence, and driving while license suspended. He filed a pretrial motion to suppress "any an all evidence, tangible and intangible, discovered, observed or otherwise gained pursuant to an illegal search of the defendant's premises." However, the motion alleged no facts concerning a search. The motion only addressed events which precipitated Gay's arrest. Specifically, the motion alleged the following facts:

On March 18, 2001 Deputy Andrew B. Heard of the Orange County Sheriffs Office observed a 1987 Maroon Cadillac bearing Florida tag number C50-FPB, exiting out of the Rosewood Apartment Complex traveling Westbound on Lee Road. Deputy Heard proceeded to follow the vehicle and ran the license plate, which came back registered to the defendant Keith Gay. The computer check also showed that the registered owner of the vehicle had a suspended license for failure to pay a traffic fine. Deputy Heard activated his emergency lights and proceeded to pursue Mr. Gay to conduct a traffic stop. The driver of the car made a U-turn back into the Rosewood Apartment Complex, and entered apartment # 8B. Deputy Heard then ordered Mr. Gay to the ground and he refused. Mr. Gay then entered his apartment and began talking on the phone. Sgt. Appleby told Mr. Gay he was under arrest and to come outside. Sgt. Appleby then entered the window and arrested Mr. Gay.

Rule 3.190 of the Florida Rules of Criminal Procedure provides:

Rule 3.190 Pretrial Motions

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(h) Motion to Suppress Evidence in Unlawful Search.

(1) Grounds. A defendant aggrieved by an unlawful search and seizure may move to suppress anything so obtained for use as evidence because:

(A) the property was illegally seized without a warrant;

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(2) Contents of Motion. Every motion to suppress evidence shall clearly state the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based.

Here, Gay filed a motion to suppress unspecified evidence, alleging simply that suppression was warranted for "all statements made by him, his identity, any observations made by law enforcement, and any testimony concerning the status of his driving privilege." While the motion alleged that the evidence was seized pursuant to an unlawful search of Gay's premises, it failed to supply any facts concerning a search. Notably, the motion failed to describe when, how, and by whom the search was...