State v. Zachery

• Citation: 255 So.3d 957
• Decision Date: 25 July 2018
• Docket Number: Case No. 2D16-5036
• Parties: STATE of Florida, Appellant, v. Emmet ZACHERY, Appellee.
• Court: Court of Appeal of Florida (US)

255 So.3d 957

STATE of Florida, Appellant,

v.Emmet ZACHERY, Appellee.

Case No. 2D16-5036

District Court of Appeal of Florida, Second District.

Opinion filed July 25, 2018.

Rehearing Denied October 19, 2018

Pamela Jo Bondi, Attorney General, Tallahassee, and Peter N. Koclanes, Assistant Attorney General, Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee.

LaROSE, Chief Judge.

The State appeals the trial court's order granting Emmet Zachery's motion to suppress evidence. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). As explained below, the trial court erred in granting the motion. Accordingly, we reverse.

I. Procedural and Factual Background

The State charged Mr. Zachery with tampering with physical evidence. See § 918.13, Fla. Stat. (2016). Mr. Zachery filed a motion to suppress evidence (i.e., hand-rolled spice joints), arguing that it was obtained through an illegal stop and search. At an evidentiary hearing on the motion, the arresting officer, Kurt Bradshaw, testified to the following facts.

Early on a summer evening, Officer Bradshaw was on patrol, driving his cruiser near downtown St. Petersburg in the area of a homeless shelter. He saw Mr. Zachery talking with another male. Officer Bradshaw had no prior contact with Mr. Zachery. He recognized the other person, however, as someone he had arrested before for drug offenses. When Officer Bradshaw initially drove by the two men, from five to ten feet away, he saw that Mr. Zachery had his hand extended, palm up, holding what Officer Bradshaw described as several hand-rolled spice joints.

Officer Bradshaw made a U-turn and parked his cruiser on the street. Seeing Officer Bradshaw, Mr. Zachery immediately started to walk away. Officer Bradshaw exited his cruiser and called to Mr. Zachery. When Mr. Zachery stopped, Officer Bradshaw saw what appeared to be the spice joints in Mr. Zachery's clenched right hand. Officer Bradshaw then asked Mr. Zachery to "[j]ust drop them to the ground." Mr. Zachery "bladed" his body, as if using his body to place himself between Officer Bradshaw and Mr. Zachery's own right hand. Officer Bradshaw was concerned that Mr. Zachery was attempting to hide the spice joints and was going to either run or punch him.

At that point, Officer Bradshaw grabbed Mr. Zachery and put him against the cruiser to place him under arrest for possession of contraband. Mr. Zachery crumbled the joints in his right hand and tried to throw them over a chain-linked fence. Mr. Zachery failed to clear the fence. Officer Bradshaw recovered the items and identified them as nine hand-rolled spice joints. Upon arresting Mr. Zachery, Officer Bradshaw discovered another spice joint in Mr. Zachery's pocket.

Officer Bradshaw was a thirteen-year veteran of the St. Petersburg Police Department. He received extensive training in narcotics and narcotics detection. He had patrolled this area of St. Petersburg for three years. According to Officer Bradshaw, the area is known for its spice usage and sales. During the three years working in the area, Officer Bradshaw made "hundreds" of spice arrests and had been involved in spice-related incidents on a daily basis. Officer Bradshaw testified that, in his experience, he has only ever found spice in hand-rolled items recovered in the area. Officer Bradshaw testified that, based on his experience and training, spice joints are clearly distinguishable from hand-rolled cigarettes; they are thinly shaped and look like a lollipop stick.

The State admitted the spice joints into evidence. The trial court examined them and concluded that they were indistinguishable from cigarettes. Consequently, the trial court found that Officer Bradshaw had conducted an illegal stop when he asked to speak with Mr. Zachery as no probable cause existed to believe that Mr. Zachery had committed or was committing a crime. The trial court also found that Officer Bradshaw conducted an illegal search when he asked Mr. Zachery to drop the alleged contraband. The trial court reasoned that there was no reason to detain Mr. Zachery merely because the stop occurred in an area known for spice use and sales. The trial court suppressed the evidence and the State appealed.

II. Analysis

A. Whether Officer Bradshaw was Justified to Stop.

The State maintains that Officer Bradshaw's initial contact with Mr. Zachery was consensual. The State also contends that Officer Bradshaw's request that Mr. Zachery drop the spice joints was not an illegal search because the officer had reasonable suspicion to then proceed with an investigatory stop. More specifically, the State argues that Officer Bradshaw had reasonable suspicion to order Mr. Zachery to drop the spice joints based on the facts and circumstances known to Officer Bradshaw. Mr. Zachery, on the other hand, contends that Officer Bradshaw lacked reasonable suspicion or probable cause to believe that Mr. Zachery had committed a crime.

"When reviewing a motion to suppress, the standard of review for the trial court's application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence." Duke v. State, 82 So.3d 1155, 1157-58 (Fla. 2d DCA 2012) (quoting Bautista v. State, 902 So.2d 312, 313-14 (Fla. 2d DCA 2005) ).

A consensual encounter is an encounter between a police officer and an individual where a citizen is free to leave; a well-founded suspicion of criminal activity is not required. Popple v. State, 626 So.2d 185, 186-87 (Fla. 1993). An investigatory stop occurs when an officer temporarily detains a citizen based on a reasonable suspicion that the citizen has committed, was committing, or is about to commit a crime. Id. at 186. A reasonable suspicion is "a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge." Bailey v. State, 717 So.2d 1096, 1097 (Fla. 5th DCA 1998) (emphasis added); see also United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ("[T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."). We consider various factors to assess "reasonable suspicion." See Brown v. State, 719 So.2d 1243, 1245 (Fla. 5th DCA 1998) (observing relevant factors such as "the location, the physical appearance of the suspect, the behavior of the suspect ... and anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge" (emphasis added) ); see also Santiago v. State, 941 So.2d 1277, 1279 (Fla. 4th DCA 2006) (considering the time, day of the week, location, the suspect's physical appearance, and the suspect's behavior in determining whether reasonable suspicion exists). We should not ignore factors such as "the officer's narcotics experience; the reputation of the location for drive-up transactions; ... the history of previous multiple arrests from that site;" and "[a] suspect's flight from an officer." Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006) (first quoting Burnette v. State, 658 So.2d 1170, 1171 (Fla. 2d DCA 1995) ; then citing Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ).

The circumstances observed and known by Officer Bradshaw justified an investigatory stop. Officer Bradshaw observed Mr. Zachery holding what appeared to be spice joints. Cf. Sanchez v. State, 507 So.2d 673, 673 (Fla. 3d DCA 1987) ("The officer's 'plain view' perception of a hand[-]rolled marijuana cigarette in Sanchez's shirt pocket provided sufficient probable cause to arrest Sanchez and conduct an inventory search of Sanchez's automobile."). Officer Bradshaw had extensive experience and training with narcotics. In virtually all of the hundreds of arrests Officer Bradshaw made in that area, he had always discovered spice in hand-rolled joints. Based on his experience, he was able to identify the items in Mr. Zachery's hand. Additionally, the area was known for spice use and transactions.

Further, Mr. Zachery exhibited evasive behavior upon seeing Officer Bradshaw. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (finding that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion").

Our determination is based on, as it should be, the totality of the circumstances as interpreted in light of Officer Bradshaw's knowledge and experience. See Brown, 719 So.2d at 1245. Accordingly, the trial court's observation and opinion that the spice joints were indistinguishable from cigarettes is not determinative as to whether a well-founded articulable suspicion of criminal activity existed. Cf. State v. Fischer, 987 So.2d 708, 713 (Fla. 5th DCA 2008) ("Whether [the officers] knew for certain it was cocaine or whether it was within the realm of possibilities that the substance could have been something other than cocaine is not the standard; the proper standard is whether 'the facts available to the officer would lead a reasonable man of caution to believe that certain items may be contraband.' Here, instead of basing its ruling on the credibility of the officers, or lack thereof, the trial court granted the motion based on a misapprehension of the applicable law." (quoting State v. Walker, 729 So.2d 463, 464 (Fla. 2d DCA 1999) ) ).

Officer Bradshaw's personal observations, coupled with Mr. Zachery's evasive behavior in a high-crime area, created a reasonable suspicion that Mr. Zachery had committed, was committing, or was about to commit a violation of the criminal laws of this state. Cf. P.L.R. v. State, 455 So.2d 363, 366 (Fla. 1984) (holding that the officer had probable cause to arrest the defendant where "the officer was at a narcotics transaction site, making a narcotics arrest, when he...