State v. Roux, 96-3341

• Citation: 702 So.2d 240
• Decision Date: 14 November 1997
• Docket Number: No. 96-3341,96-3341
• Parties: 22 Fla. L. Weekly D2599 STATE of Florida, Appellant, v. Brent ROUX, Appellee.
• Court: Court of Appeal of Florida (US)

Page 240

702 So.2d 240

22 Fla. L. Weekly D2599

STATE of Florida, Appellant, v. Brent ROUX, Appellee.

No. 96-3341.

District Court of Appeal of Florida,

Fifth District.

Nov. 14, 1997.

Rehearing Denied Dec. 17, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Roberta J. Tylke, Assistant Attorney General, Daytona Beach, for Appellant.

James B. Gibson, Public Defender, and Kenneth Witts, Assistant Public Defender, Daytona Beach, for Appellee.

THOMPSON, Judge.

The State of Florida appeals an order granting Brent Roux's motion to suppress evidence. We have jurisdiction ¹ and we reverse because, although there was no probable cause to arrest for sale or possession of drugs, there was probable cause to arrest for battery and battery on a law enforcement officer.

Brent Roux was sitting in the front passenger seat of the only car parked in the lot of a closed, Seminole County, McDonald's restaurant. Unknown to Roux, he was being observed by four law enforcement agents. The agents were members of the County City Investigative Bureau (CCIB), a drug and vice task force. Standing outside of Roux's vehicle was a male who was seen handing Roux money. One agent who observed the transaction and assumed it was a hand-to-hand drug buy, got out of the car and approached Roux. The agent was dressed in the standard CCIB uniform: black pants, a black shirt, a black bullet-proof vest with a sheriff's insignia on one side and a badge on the other, and a gunbelt.

Roux saw the officer, got out of the car, pushed the man who gave him the money into the agent, and ran. The agent chased Roux and arrested him. The agent patted-down Roux and found a bag of marijuana in his front pocket. At the jail, cocaine was also found on Roux. Roux was charged with resisting arrest without violence and possession of cannabis. A separate charge of possession of cocaine, the charge before this court, was later filed against Roux. The trial court granted Roux's motion to suppress, ruling that the agent did not have probable cause to arrest Roux when he approached the car. The state appeals.

The state argues that the trial court erred when it ruled there was no probable cause for arrest. We agree with the trial court that the agent could not have arrested Roux based on his observations and his suspicion that a drug deal was being consummated. Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995); Hills v. State, 629 So.2d 152 (Fla. 1st DCA 1993), rev. denied, 639 So.2d 981 (Fla.1994); Shackelford v. State, 579 So.2d 306 (Fla. 2d DCA 1991). We also agree that the agent could not detain Roux based upon these observations. Huntley v. State, 575 So.2d 285 (Fla. 5th DCA 1991); Dames v. State, 566 So.2d 51 (Fla. 1st DCA 1990). The fact that there could not be an arrest or detention does not stop our inquiry, however.

There are three levels of contact that the police may have with a citizen: voluntary compliance by the citizen to an officer's request, during which the citizen is free to leave at anytime; an investigatory stop based upon reasonable suspicion; and, finally, arrest. Popple v. State, 626 So.2d 185 (Fla.1993). In Florida, therefore, the police may approach any citizen to talk and the citizen is free to leave at anytime. Further, under Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the agent could approach Roux, engage him in conversation, and ask that Roux submit to a search, as long as there was no intimidation or threat of force to coerce compliance. Since Roux's car was parked, the agent had the right to approach Roux and talk with him. See Id.; Popple. Unfortunately for Roux, the agent never had an...