State v. Navarro

• Decision Date: 21 February 1984
• Docket Number: No. 83-908,83-908
• Parties: 10 Fla. L. Weekly 455 The STATE of Florida, Appellant, v. Wilfredo NAVARRO and Roerme Navarro, Appellees.
• Court: Florida District Court of Appeals

Page 137

464 So.2d 137

10 Fla. L. Weekly 455

The STATE of Florida, Appellant, v. Wilfredo NAVARRO and Roerme Navarro, Appellees.

No. 83-908.

District Court of Appeal of Florida Third District.

Feb. 21, 1984.

On Rehearing En Banc Feb. 19, 1985.

Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellant.

Arthur E. Huttoe and John H. Lipinski, Miami, for appellees.

Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.

PER CURIAM.

This is an appeal by the State from an order granting a motion to suppress evidence seized from the persons and the automobile of the defendants/appellees.

The trial judge set forth his findings of fact and conclusions of law in the following order:

THIS CAUSE having come before the Court upon the Defendants' Motion to Suppress, the Court having heard Argument of Counsel, having read the Court File and Depositions included therein, having examined and evaluated the demeanor and credibility of the Witnesses presented, and being fully apprised of all pertinent facts, it is hereby:

ORDERED and ADJUDGED the Defendants' Motion to Suppress be granted in that:

1. The original stopping of the Defendants was not reasonable, based upon the testimony the State presented. The facts presented by the State showed only a mere suspicion and not the reasonable suspicion as is required by the Law for such a stop. See § 901.151, Florida Statutes.

2. The group of men of which ROERME NAVARRO was a part were respectable Businessmen containing of [sic] two Newspapermen, an Attorney and a Local Businessman. Their appearance and demeanor justified no suspicion of Criminal Activity.

3. The slight bulge in the suit worn by ROERME NAVARRO did not constitute a reasonable suspicion that he was committing a crime, especially as such a slight bulge was in ROERME NAVARRO'S hip area and could easily have been a wallet or other innocent object. There is no evidence the slight bulge was distinctively shaped like or had the distinctive outline of a Weapon.

4. The Court's Assessment of DETECTIVE DIAZ's demeanor during testimony and the conflicts in his testimony as compared to that of the other Officers compels the Court to doubt that a knowing and voluntary consent to search the car was given. Certainly, the Evidence presented by the State does not show such an informed, knowing and voluntary consent. See Correa vs. State, 389 So.2d 1204 (Fla. 3d DCA 1980).

5. The Court's finding that a voluntary consent is lacking is buttressed by the fact that, although Television Personnel mysteriously arrived at the time of the arrest, this "consent" was not preserved or witnessed by them for posterity.

6. The Court specifically finds the police action violated the Defendants' Right to Privacy as guaranteed by the 23rd Amendment to the Florida Constitution and Article I, § 12 of the Florida Constitution as well as the 4th Amendment to the United States Constitution.

7. As the police action was directed at appropriately-dressed businessmen and as the action was generated by no facts warranting such police intrusion, the police actions in this case were so intrusive as to deny these Defendants, well dressed businessmen innocently walking the Main Streets of Miami, in the afternoon (3:00 P.M.) their Right to Due Process of Law, as guaranteed by both the State and Federal Constitutions.

This finding is based partly on the fact that although only ROERME NAVARRO had a slight bulge in his wallet area, all of the persons in the group were stopped, detained and frisked. The Court finds such "overkill" to be a particularly unjustified limitation on an Individual's freedom and to characterize the unconstitutional overzealousness demonstrated by the Police. See Jackson vs. State, 403 So.2d 1116 (Fla. 5th DCA 1981).

Based on the above Findings of Fact and Conclusions of Law, the Defendants' Motion to Suppress is granted.

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In reviewing the findings of a trial judge on a motion to suppress, the findings must be accepted by the appellate court if the record reveals evidence to support the findings. State v. Favaloro, 424 So.2d 47 (Fla. 3d DCA 1982); State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979).

We have concluded that the State has failed to show reversible error on this record, therefore the order appealed is affirmed.

Affirmed.

DANIEL S. PEARSON, Judge, dissenting.

We are not bound to accept a trial court's determination of questions of fact at a motion to suppress hearing when that determination is "clearly shown to be without basis in the evidence or predicated upon an incorrect application of the law." State v. Riocabo, 372 So.2d 126, 127 (Fla. 3d DCA), cert. dismissed, 378 So.2d 348 (Fla.1979). See State v. Delgado-Armenta, 429 So.2d 328 (Fla. 3d DCA 1983). I dissent because the critical findings in the order under review are absolutely unsupported by any evidence and, as well, incorrectly apply the law.

The unrebutted testimony of Detective Diaz ¹ is that he observed one of these respectable, appropriately-dressed businessmen, Roerme Navarro, exit a vehicle and saw a bulge in the small of Roerme's back which "was in the outline of a firearm" (Tr. 8). Diaz then radioed Officer Guaz. The unrebutted testimony of Guaz was that moments thereafter, as Roerme leaned over to open the door of this same vehicle, Guaz saw a "big bulge on the back" of Roerme which appeared to Guaz "to be the butt of a gun or the stock of a gun." It was not until after Guaz made this observation that he approached this respectable, appropriately-dressed businessman, patted him down, felt the gun, raised Roerme's "Eisenhower type jacket," and removed the concealed nine-millimeter Browning. No contact, confrontation, encounter, or stop of Roerme or of the vehicle had been made before Guaz went to frisk Roerme. Thus, it appears without dispute that the trial court's findings that there was a "slight bulge in the suit worn by Roerme Navarro," that the bulge was in Roerme's "hip area," and that "there is no evidence the slight bulge was distinctively shaped like or had the distinctive outline of a weapon" are totally unsupported by the record.

It follows, then, that the trial court's discussion, and the debate between the parties on this appeal, about whether the "stop" of Roerme was based on "mere suspicion" or "reasonable suspicion" completely misses the mark. The police officers' observation of the outline of a firearm amounted to probable cause to believe that Roerme was carrying a concealed weapon, justifying not merely a pat-down, but a search. See People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380 (1977). ²

The search of Roerme having revealed a concealed firearm, he was immediately arrested for that offense. Within minutes of Roerme having been placed in custody, the passenger compartment of the vehicle which Roerme had been seen exiting and entering was searched. Since it is now well established that when the police have made a lawful custodial arrest of the occupant of an automobile, they may as a contemporaneous incident of that arrest search the passenger compartment of that automobile even though the arrestee is no longer in it and no longer has ready access to it, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Savoie v. State, 422 So.2d 308 (Fla.1982); Bond v. State, 431 So.2d 343 (Fla. 2d DCA 1983); State v. Brock, 426 So.2d 1287 (Fla. 1st DCA 1983); State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983); State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982), the search of the vehicle which revealed a nine-millimeter MAC-10 and another nine-millimeter Browning was lawful, even if, as the trial court found, it was non-consensual.

Accordingly, I would reverse the order suppressing the weapons found on Roerme Navarro's person and in the vehicle occupied by him and remand the cause for further proceedings against these defendants.

ON MOTION FOR REHEARING EN BANC GRANTED

Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

PER CURIAM.

The State has moved for a rehearing en banc contending that the majority panel opinion has misapplied the established, and indeed acknowledged, rule of law that a trial court's findings of fact on a motion to suppress must have evidentiary support. Under the restrictive test for en banc jurisdiction adopted by a majority of this court in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982), it is likely that the State's motion would be denied. However, it now appears that our right to exercise our en banc power was not, as the majority in Finney believed, restricted to "the test which has been articulated for Supreme Court conflict jurisdiction." 420 So.2d at 641.

We have now been instructed by Chase Federal Savings and Loan Association v. Schreiber (Fla.1984) (Case No. 63,017, opinion filed July 26, 1984), that the district courts of appeal are free to develop their own concept of decisional uniformity in order to implement the purposes of the en banc rule, that is, to "avoid conflict, assure harmonious decisions within the courts' geographic boundaries, and develop predictability of the law within their jurisdiction." Id. Accordingly, we recede from so much of Finney v. State which holds that our en banc jurisdiction is limited to cases where the conflict is such as would have triggered Supreme Court certiorari jurisdiction. We now hold that panel decisions of this court are subject to our en banc jurisdiction, not only for the reasons described in Finney, but additionally where, as here, the panel has misapplied a well-established rule of law of this district in deciding the case. In the present case, the rule of law relates to our standard of review of a trial court's findings on a motion to suppress evidence: A trial court's findings must be accepted by the appellate court if there is evidence to support the findings. This rule is, by definition, applicable only to a...