State v. Orozco

• Decision Date: 06 October 1992
• Docket Number: Nos. 91-2090,91-2089,s. 91-2090
• Citation: 607 So.2d 464
• Court: Florida District Court of Appeals
• Parties: 17 Fla. L. Week. D2308 The STATE of Florida, Appellant, v. Elain OROZCO and Claudia Monegro, Appellees.

Page 464

607 So.2d 464

17 Fla. L. Week. D2308

The STATE of Florida, Appellant, v. Elain OROZCO and Claudia Monegro, Appellees.

Nos. 91-2090, 91-2089.

District Court of Appeal of Florida,

Third District.

Oct. 6, 1992.

Robert A. Butterworth, Atty. Gen., and Jorge Espinosa and Gisele Lylen, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Carol J.Y. Wilson, Asst. Public Defender, for appellees.

Before BASKIN, FERGUSON and JORGENSON, JJ.

JORGENSON, Judge.

The State appeals from an order granting defendants' motions to suppress. For the reasons that follow, we reverse.

On September 6, 1991, Metro Dade police officer Luis Fernandez received an anonymous telephone tip that a young Latin male would be leaving the Country Walk area in a vehicle carrying narcotics. Fernandez testified that the caller stated that a young Latin male, standing approximately five feet nine inches tall and weighing between 190 and 200 pounds, would be leaving a specific residential address in either a white pickup truck or small red vehicle carrying a large quantity of cocaine. The caller further stated that the departure would occur between 6:00 and 6:30 that same evening.

Fernandez arranged for a surveillance team to go to the specified location. Upon arrival, Fernandez observed a white pickup truck and a small red car parked in front of the residence.

At approximately 6:30 p.m., a woman later identified as Monegro and a man fitting the description given to Fernandez left the house and drove away in the white pickup truck. Fernandez and the surveillance team followed the truck. Soon after, the truck made an abrupt U-turn and sped up to 85 miles per hour in a residential area in an attempt to elude the surveillance team. Officer Fernandez gave chase and, once the flow of traffic forced the pickup to slow down, he stopped the vehicle. Fernandez spoke to the driver of the pickup, Orozco, and told him about the information received in the anonymous tip. Fernandez then requested consent to search the pickup; Orozco refused. The police dog handler, a member of the surveillance team, walked his K-9 around the pickup truck. The dog alerted the officers to the presence of cocaine.

Following the reading of Miranda rights, Fernandez asked Orozco whether he was willing to speak without an attorney present. Orozco agreed to speak with the officer and told Fernandez that he could find a kilo of cocaine in Monegro's purse. The cocaine was then retrieved from the purse.

Both defendants were charged with trafficking in cocaine. The defendants filed a motion to suppress written and oral statements, alleging that they were the result of an illegal arrest. The trial court granted the motion, and the State appeals from that order. We reverse, as the stop was valid as the result of a lawful arrest for reckless driving.

While the surveillance team was following the pickup truck, the truck made an "abrupt" U-turn and drove through a residential community "kicking up dirt" at speeds exceeding 80 m.p.h. This act of reckless driving created probable cause for the police to arrest defendant Orozco. Section 316.192, Fla.Stat. (1991). See Gasset v. State, 490 So.2d 97 (Fla. 3d DCA) (officers engaged in 80 m.p.h. chase of vehicle in residential neighborhood had probable cause to make warrantless arrest of defendant for reckless driving), rev. denied, 500 So.2d 544 (Fla.1986). The defendants were thus properly stopped for reckless driving. ¹ As stated by this court:

[O]nce the defendant was legally stopped, the use of a sniff dog was not an unconstitutional search under the Fourth Amendment. A sniff dog's "alert" can constitute probable cause to conduct a search. Once probable cause existed to search the vehicle, no warrant was needed to authorize the search. Just as no police officer need close his eyes to contraband in plain view, no police officer armed with a sniff dog need ignore the olfactory essence of illegality. (Citations omitted.)

State v. Taswell, 560 So.2d 257 (Fla. 3d DCA1990).

Because the stop was valid, it was error to suppress the evidence that resulted from the arrest and search.

Reversed and remanded for further proceedings.

FERGUSON, J., concurs.

BASKIN, Judge, dissenting.

The majority anchors its holding on the conclusion that defendants were properly stopped as a consequence of defendant Orozco's driving pattern, his "abrupt" u-turn, and his acceleration. Because the record discloses the stop was not predicated on Orozco's driving, but was based instead on improper grounds, I dissent.

Detective Fernandez, the only witness at the suppression hearing, testified that he set up surveillance of a residence based on an anonymous telephone call. ¹ The police observed a white Latin male, Elain Orozco, and a female, Claudia Monegro, leave the house and drive away in a white pickup truck. The police followed the truck, observing that at one point it made an abrupt U-turn and accelerated. After following the truck for some distance, the police stopped the vehicle.

The state argues on appeal that the orders granting the motions to suppress should be reversed. It maintains that the stop and defendants' arrests were justified by Orozco's reckless driving. That contention lacks merit for several reasons. First, the argument was not preserved for appellate review. "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Tillman v. State, 471 So.2d 32, 35 (Fla.1985). The record reveals that the state failed to assert that the stop or the arrest were justified by the officers' observation of reckless driving. Furthermore, at the suppression hearing, the state argued that defendant Orozco was not under arrest when he was stopped; Orozco was informed that the officers were merely conducting a narcotics investigation. In conformity with the matters presented, the trial court entered an Order that does not contain any reference to Orozco's speed or driving style. The Order states:

... [Police] observed a male and a female enter a white pick-up truck and leave the said address.... The undercover police followed the pick-up truck in their vehicles.

9. Subsequently, the police stopped the Defendants by pulling their vehicles along side of and in front of Defendant Orozco's pick-up truck....

11. The police stopped and detained the Defendants based solely upon the prior anonymous tip. The Defendants were not stopped for speeding or any other traffic violation.

At no point during the suppression hearing did the state cite reckless driving as justification for the stop. Because that argument was not presented to the lower court, it may not be asserted on appeal.

Even if we assume, for the sake of argument, that the issue was preserved for review, reversal would nevertheless be improper. Gasset v. State, 490 So.2d 97 (Fla. 3d DCA), review denied, 500 So.2d 544 (Fla.1986), State v. Taswell, 560 So.2d 257 (Fla. 3d DCA1990), and Charlton v. State, 550 So.2d 150 (Fla. 3d DCA1989), cited by the majority in support of reversal, provide no support. Those cases are factually distinguishable from the case before us.

In Gasset, police officers first noticed defendant's car when he made an "erratic turn" at an intersection. Gasset, 490 So.2d at 98. The officers pursued the vehicle and a high speed chase ensued, with the officers' sirens and emergency lights activated. Defendant continued to flee, and finally drove into his garage where the police arrested him. Defendant was subsequently charged with driving while under the influence. This court rejected defendant's argument that his arrest was unlawful, reasoning that, regardless of the charges ultimately brought against the defendant, "the officers had abundant probable cause to arrest Gasset for reckless driving." Gasset, 490 So.2d at 98.

Here, Orozco was not followed because of an observed traffic violation or stopped because of an observed traffic violation. By the detective's own admission, Orozco was stopped so that the narcotics investigation could be completed. The state's attempt to legitimize the arrest by asserting that Orozco could have been stopped for speeding is contrived and should not be entertained by this court.

Similarly, Taswell lends no support to the majority's conclusion. There, a Florida Highway patrolman observed defendant speeding and stopped him. This court concluded that defendant was properly stopped as a result of the traffic violation. Once the stop was legally effected, there was no impediment to a dog being used to sniff defendant's vehicle. Taswell, 560 So.2d at 257. The crucial distinction between Taswell and the case before us is that defendant Taswell was observed speeding and legitimately stopped on that basis. Unlike Orozco, Taswell was not covertly followed by narcotics agents and stopped to enable a dog to sniff his vehicle for narcotics.

The defendant in Charlton was a robbery suspect. The investigating officer learned that defendant had a suspended driver's license. The officer arrested him for driving with a suspended license after observing the defendant get into a car and drive away. Charlton, 550 So.2d at 150. Charlton held that the stop and arrest for a traffic infraction was not pretextual because defendant was arrested for an offense committed in the officer's presence. Charlton, 550 So.2d at 151. In the case before us, defendants were not known to the police officers prior to the surveillance. The sole reason defendants were followed was to complete a narcotics investigation. Orozco's driving pattern was noteworthy to the officers only because it posed the possibility that the officers might lose track of defendants before completing their investigation.

The First District Court of Appeal was faced with a scenario similar to the...