State v. Paul

• Decision Date: 06 May 1994
• Docket Number: No. 93-420,93-420
• Citation: 638 So.2d 537
• Parties: 19 Fla. L. Weekly D1007 STATE of Florida, Appellant, v. Timothy Mark PAUL, Appellee.
• Court: Florida District Court of Appeals

Page 537

638 So.2d 537

19 Fla. L. Weekly D1007

STATE of Florida, Appellant, v.Timothy Mark PAUL, Appellee.

No. 93-420.

District Court of Appeal of Florida Fifth District.

May 6, 1994.

Rehearing Denied June 28, 1994.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca Roark Wall, Asst. Atty. Gen., Daytona Beach, for appellant.

James B. Gibson, Public Defender, and James T. Cook, Asst. Public Defender, Daytona Beach, for appellee.

W.SHARP, Judge.

The state appeals from an order granting Paul's motion to suppress evidence of cocaine found in his automobile, after a stop by the police.¹The state argues the police officer's testimony at the suppression hearing, which was the only testimony proffered, conclusively establishes Paul consented to the search.We affirm.

The state makes no argument on appeal that Paul's initial stop by the police officer was a Terry ² stop or one based on a founded suspicion that a crime had been committed.The officer testified he saw several males around Paul's vehicle but admitted that he did not see any actual drug transaction, did not recognize any of the individuals involved, and did not see any cash or packaging consistent with a drug transaction.The courts have held that these kinds of observations are insufficient to constitute a reasonable suspicion for a stop.See, e.g., M.J.S. v. State, 624 So.2d 359(Fla. 2d DCA1993)(officer did not have reasonable suspicion to stop juvenile simply based on his observation of the juvenile and two others in a high-drug area in the evening, leaning into the window of a stopped car and attempting to leave upon seeing the officer when he did not see any money or drugs transferred between the juvenile and occupant of the car);Nesmith v. State, 616 So.2d 170(Fla. 2d DCA1993)(officer's observation of defendant in a known drug area, leaning into a parked car with unidentified object in his hand and his flight when the officer approached did not provide the officer with a reasonable suspicion of criminal activity needed to justify a stop);Shackelford v. State, 579 So.2d 306(Fla. 2d DCA1991)(officer's observation of the defendant leaning into a window of a car in an area known for drug sales did not create a reasonable suspicion of criminal activity);Huntley v. State, 575 So.2d 285(Fla. 5th DCA1991)(officer who observed defendant in a high-drug area picking something up from a young black male's hand but who saw neither drugs nor money did not have a founded suspicion to detain defendant);Dames v. State, 566 So.2d 51(Fla. 1st DCA1990)(officer's stop of defendant was not warranted by his observation of the defendant in a high-crime district leaning into the window of a stopped car and the defendant's rapidly walking away upon seeing another officer approach).

Rather, the state relied on Paul's consent to the search of his car.In order to rely upon consent to justify a search after an unjustified stop of an automobile, the state has a heavy burden to prove that the consent was in fact freely and voluntarily given.Norman v. State, 379 So.2d 643(Fla.1980).The voluntariness of a defendant's consent to search is to be determined from the totality of the circumstances.West v. State, 588 So.2d 248(Fla. 4th DCA1991).When consent is obtained after illegal police activity such as an illegal stop or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.Norman; West.

However, consent will be held voluntary if there is clear and convincing proof there was an unequivocal break in the chain of illegality (in the illegal stop) sufficient to dissipate the taint of the prior illegal police action.Norman;State v. Boyd, 615 So.2d 786(Fla. 2d DCA1993); West;Reed v. State, 577 So.2d 1362(Fla. 2d DCA1991).The taint may be dissipated when the defendant is advised of his constitutional right to refuse consent to search and nonetheless voluntarily does so.Boyd;Gonzalez v. State, 578 So.2d 729(Fla. 3d DCA1991);State v. Simm, 558 So.2d 110(Fla. 3d DCA1990);Windes v. State, 547 So.2d 346(Fla. 3d DCA1989);State v. Gribeiro, 513 So.2d 1323(Fla. 3d DCA1987);State v. Martinez, 459 So.2d 1062(Fla. 3d DCA1984);State v. Howard, 394 So.2d 440(Fla. 3d DCA1981);State v. Champion, 383 So.2d 984(Fla. 4th DCA1980).

In this case, the trial judge was the fact finder.He heard the police officer's testimony, which was the sole evidence presented.But, the judge did not have to believe the police officer's testimony.Obviously, he did not, since he suppressed the evidence found in Paul's car.Being "opened-minded" has nothing to do with the decision in this case.

This case is similar to having a jury disbelieve the state's evidence in a criminal case.Even though the state's witnesses are uncontradicted, a jury does not have to accept and believe them.³Such a rule is applicable here.The trial judge could well have found the initial stop was illegal, based on the police officer's testimony; and that the state failed to carry its burden of proof to show there was an unequivocal break in the chain of illegality, because the trial judge did not believe the police officer's testimony that Paul freely consented.

AFFIRMED.

GOSHORN, J., concurs specially with opinion.

THOMPSON, J., dissents with opinion.

GOSHORN, Judge, concurring specially.

I concur in Judge Sharp's analysis and result because the trial judge's ruling comes to us clothed with the presumption of correctness.Smith v. State, 378 So.2d 281(Fla.1979);State v. Hardy, 610 So.2d 38(Fla. 5th DCA1992), review denied, 621 So.2d 433(Fla.1993).We should not reweigh the evidence and substitute our factual findings for that of the trial judge.State v. Smith, 632 So.2d 1086(Fla. 5th DCA1994).

THOMPSON, Judge.

I respectfully dissent.Although it is good to be open-minded, in a case like this, I do not want to be so open-minded that obvious facts are ignored.The majority opinion ignores obvious facts.I would reverse the order granting the motion to suppress for two reasons.First, I think the stop was a proper Terry stop and second, even if the stop was improper, the appellant consented to the search and thus dissipated any taint of an improper search.

Deputy Scott Stoudt of the Putnam County Sheriff's Office, the only witness to testify at the suppression hearing, testified that he was "aggressively patrolling" an area within his zone known for drug sales.Deputy Stoudt saw Paul's vehicle and observed it for a short time because Paul was a white male driving in an African-American community at 8:57 in the evening.He could tell there were five or more African-American males with their heads and hands inside the driver's window.This activity was familiar to Deputy Stoudt.Deputy Stoudt, prior to working as a patrol deputy, had participated in undercover drug buys.He testified, at the suppression hearing, that when he worked undercover, he would drive his private vehicle into a suspected drug area and several "suspects" would come up to his car and put their heads and hands in his windows.They would argue among themselves and attempt to outbid the other to make the sale.

When Deputy Stoudt approached the intersection and saw Paul's car, he suspected that a drug sale was ongoing.He admitted he could not see inside the vehicle, because there were too many people, and he never saw anything exchange hands.He also testified that he did not know any of the males outside of the car and he did not know Paul before that evening.As he approached Paul's vehicle, the males outside the car ran in different directions.Paul's vehicle pulled off and passed Stoudt in the opposite direction.A short time later, Stoudt stopped Paul's vehicle using his blue lights.Stoudt "ran" Paul's tag before Paul got out of the vehicle to see if there were any outstanding warrants for the vehicle.

As Stoudt approached Paul's vehicle, Paul got out of his vehicle with his driver's license in his hand and started to give reasons why he was in the area.Stoudt took the license, examined it and gave it back to Paul.The reasons Paul gave did not match what Stoudt had observed.Paul said he had picked someone up from a shopping center and was giving him a lift home.Deputy Stoudt never saw anyone in Paul's car, nor did he see anyone get out of his car.Stoudt told Paul why he was stopped: because he saw the males running from his vehicle and because he suspected Paul was buying drugs.He asked Paul for consent to search his car.At this point, Paul was not under arrest and no traffic citations were issued for any offense.Paul was told he did not have to consent to the search.Paul agreed to the search and Stoudt found a piece of rock cocaine between the two front seats.Paul was arrested and charged with possession of cocaine.

The initial stop of Paul's vehicle was based upon a founded suspicion that a crime may have been committed or about to be committed.It was an investigatory stop permissible under federal and state law.SeeTerry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968);Sec. 901.151,Fla.Stat.(1991)(Florida's stop and frisk law).Stoudt presented a "well-founded, articulable suspicion of criminal activity" during his testimony.Popple v. State, 626 So.2d 185, 186(Fla.1993).Stoudt testified that the behavior he observed was consistent with his experience as an undercover law enforcement officer that a drug deal was in progress.His testimony, unrefuted by Paul, was a sufficient basis for Stoudt to stop Paul's car.SeeState v. Brown, 616 So.2d 124(Fla. 2nd DCA1993);State v. Hunt, 391 So.2d 760, 761(Fla. 5th DCA1980).Based upon the totality of the circumstances presented by an experienced law enforcement officer, the state has shown a founded suspicion for the stop.Batie v. State, 593 So.2d 1167(Fla. 1st DCA1992);Murphy v. State, 512 So.2d 1006(Fla. 4th DCA1987), review denied, ...