State v. Hankerson

• Decision Date: 30 June 2011
• Docket Number: No. SC10–1074.,SC10–1074.
• Citation: 65 So.3d 502
• Parties: STATE of Florida, Petitioner,v.Anthony L. HANKERSON, Respondent.
• Court: Florida Supreme Court

65 So.3d 502

STATE of Florida, Petitioner,

v.Anthony L. HANKERSON, Respondent.

No. SC10–1074.

Supreme Court of Florida.

April 21, 2011.As Revised on Denial of Rehearing June 30, 2011.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, James J. Carney and Mark J. Hamel, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.CANADY, C.J.

The State seeks review of Hankerson v. State, 32 So.3d 175 (Fla. 4th DCA 2010), in which the Fourth District Court of Appeal reversed Anthony L. Hankerson's conviction for possession of cocaine for sale, holding that the trial court should have granted Hankerson's motion to suppress evidence obtained from a search undertaken without probable cause. In its decision, the Fourth District refused to consider the State's argument on appeal that the evidence was legally discovered following a proper investigatory stop because the theory had not been raised in the trial court. The Fourth District's refusal to consider the State's theory expressly and directly conflicts with Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999), which held that “an appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court before.” We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We conclude that the Fourth District improperly curtailed the State's argument on appeal and that the trial court properly determined that the search was based on probable cause. We therefore quash the Fourth District's decision.

I. BACKGROUND

After being charged with possession of cocaine with intent to sell within 1000 feet of a school, Hankerson filed a motion to suppress evidence, asserting that the evidence was obtained from an illegal search and seizure. Specifically, Hankerson asserted that the law enforcement officer who searched him lacked probable cause to believe that he had committed a felony. At the hearing on the motion to suppress, the State contended that the search was properly based on probable cause and presented testimony from two law enforcement officers.

Officer Mark Lucas, of the Delray Beach Police Department, testified that on the afternoon of February 28, 2008, he participated in the surveillance of a residence that, based on information from residents of the neighborhood and confidential informants, was suspected of being the location of illegal drug transactions. Officer Lucas explained that he observed Hankerson arrive at the residence, exit an SUV, and approach a group of people on the front porch. While looking up and down the street, Hankerson opened his hand. Each of three individuals on the porch consecutively took something from Hankerson's hand—Officer Lucas could not see what the objects were—and “quickly” gave him paper currency in return. Hankerson's contact with the individuals was “[v]ery brief.” Hankerson put the money in his pocket, returned to the SUV, and left. Officer Lucas testified that he had worked with the Delray Beach Police Department's street-level narcotics unit for eleven years and that based on his surveillance that afternoon and his years of experience, he believed that Hankerson had participated in a narcotics transaction. According to Officer Lucas, “that brief of a contact, the limited eye contact, the way [Hankerson] was looking up and down the street, and the exchange of paper currency for these items with three different subjects” was consistent with the hundreds of illegal drug transactions he had witnessed as a law enforcement officer. Because Officer Lucas believed that Hankerson had participated in an illegal drug transaction, he radioed to other officers, requesting that they perform a traffic stop of Hankerson.

Officer James Schmidt, of the Delray Beach Police Department, testified that on the afternoon of February 28, 2008, at the direction of Officer Lucas, he used his lights and sirens to pull over a vehicle driven by Hankerson. As he approached the vehicle, Officer Schmidt observed Hankerson reach toward the center console and then down toward the floor. When Officer Schmidt asked Hankerson to exit the vehicle, Hankerson complied. Office Schmidt asked Hankerson if he had any drugs or weapons. Hankerson stated that he was “out of the game” and lifted his shirt to show his torso. Officer Schmidt asked Hankerson if he had anything in his shoes. Before Officer Schmidt could ask Hankerson to remove his shoes, Hankerson began doing so. Officer Schmidt testified that Hankerson appeared “a little bit hesitant.” Hankerson began to remove his right shoe and then removed his left shoe instead. When Hankerson did take off his right shoe, he attempted to conceal in his hand a bag that had been in his shoe. The bag contained small, zip-top bags filled with a substance that Officer Schmidt suspected was cocaine. Officer Schmidt arrested Hankerson and field-tested the substance in the bags, which tested positive for cocaine. Officer Schmidt testified that based on his experience, each of the small bags had a street value of about twenty dollars. Officer Schmidt further testified that he found sixty-three dollars in Hankerson's right front pocket.

The trial court denied Hankerson's motion to suppress. The trial court found that Officer Lucas had “probable cause to believe that he saw a narcotic transaction, even though he could not identify the substance” and that “all of the other facts and circumstances give cause for the subsequent search of Mr. Hankerson.” After a jury trial, Hankerson was convicted of one count of the lesser included offense of possession of cocaine for sale and sentenced to ten years in state prison.

Hankerson appealed his conviction and sentence to the Fourth District. Hankerson asserted that because Officers Lucas and Schmidt did not have probable cause to search him, the trial court should have granted his motion to suppress. In response, the State offered two theories as to why the trial court did not err in denying the motion to suppress. The State contended that the officers did have probable cause to search Hankerson and, alternatively, that Officer Schmidt discovered the evidence as a result of a lawful investigative stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which was followed by Hankerson's voluntary removal of his shoes.

Relying on Coney v. State, 820 So.2d 1012, 1013–15 (Fla. 2d DCA 2002) (holding there was no probable cause to search where law enforcement officers observed the defendant engage in a single hand-to-hand transaction in an area known for drug activity), the Fourth District concluded that the trial court erred in finding that the officers had probable cause to search Hankerson. As to the State's theory that Officer Schmidt merely conducted an investigatory stop, the Fourth District explained that it did not consider that argument because the State had not raised that theory in the trial court.

The State petitioned this Court for review of the Fourth District's decision on the basis of express and direct conflict. We granted review based on conflict with Radio Station WQBA, which held that an appellee need not have previously raised a basis for affirming the trial court's decision in order to assert that position on appeal.

II. ANALYSIS

In the analysis that follows, we first address the conflict between the Fourth District's decision and our decision in Radio Station WQBA. We then explain why the trial court did not err in denying Hankerson's motion to suppress.

In Radio Station WQBA, this Court resolved a conflict regarding whether a trial court's ruling could be affirmed based on a theory or principle of law that was not argued to the trial court. This Court adhered to the principle generally known as the “tipsy coachman” rule, explaining that a trial court's ruling “will be upheld if there is any basis which would support the judgment in the record.” Radio Station WQBA, 731 So.2d at 644.

This Court then further explained that because a trial court's ruling must be affirmed where the record supports any legal basis for the judgment, an appellee may raise an argument on appeal that was not raised in the trial court so long as the argument has a reasonable basis in the record.

If an appellate court, in considering whether to uphold or overturn a lower court's judgment, is not limited to consideration of the reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons, it follows that an appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court. See MacNeill v. O'Neal, 238 So.2d 614, 615 (Fla.1970). In MacNeill, this Court cited prior cases holding that an appellee “not aggrieved by the lower court's decision need not file cross-assignments of error in order to have the points considered on appeal.” See Cerniglia v. C & D Farms, Inc., 203 So.2d 1 (Fla.1967); Hall v. Florida Bd. of Pharmacy, 177 So.2d 833 (Fla.1965). “These cases recognize that a party who is content with the judgment below need not assign error in order to support that judgment and is not limited in the appellate courts to the theories of recovery stated by the trial court.” MacNeill, 238 So.2d at 615. While the Rules of Appellate Procedure no longer provide for assignments of error, what the MacNeill court said is analogous to saying that an appellee need not raise and preserve alternative grounds for the lower court's judgment in order to assert them in defense when the appellant attacks the judgment on appeal.

Id. at 645. In...