Ellis
Curry Attorney 3004 River Grove Dr Tampa FL (813) 238-5371 FSU Library ·
Ellis Curry. [☆] 1. Ellis Rexwood Curry Attorney 3004 River Grove
Dr
Thursday, June 12, 2014
Sunday, August 25, 2013
Ellis Curry, lawyer, wins against narcotics detection dogs & police searches
Ellis Curry, Attorney, challenges accuracy of drug dogs
An appeals court throws out a Hillsborough case, saying no evidence was presented to show a drug-sniffing dog's "track record."
By CHRISTOPHER GOFFARD, Times Staff Writer
© St. Petersburg Times
published August 7, 2003
© St. Petersburg Times
published August 7, 2003
TAMPA - Hillsborough sheriff's deputies deployed their drug-detecting dog, Razor, to sniff around the car when they stopped motorist Gary Alan Matheson for a traffic infraction on Hillsborough Avenue.
The German shepherd signaled the presence of drugs, which deputies used as probable cause for the May 1999 search. The search revealed morphine and methamphetamine.
After failing to get the evidence suppressed in court, Matheson pleaded no constest to drug-possession charges. He received probation in 2000.
This week, however, the 2nd District Court of Appeal threw out the case against Matheson, saying the state had not presented any evidence of the dog's "track record" of sniffing out drugs.
The Sheriff's Office acknowledged that it did not keep records of Razor's success rate in the field and that the dog had no training to distinguish between actual drugs and "dead scents" from drugs no longer present.
In its unanimous ruling, the appeals court also noted that Razor had received only five weeks of drug-sniffing training, whereas the Customs Service puts its dogs through a 12-week course and teaches them to disregard residual scents.
The Customs Service requires its dogs to have a perfect record; only half of the dogs complete the program. But the certification program Razor attended requires only 70 percent success.
The court's ruling, which also affects law enforcement in PinellasCounty, does not forbid drug searches by dogs or declare them uniformly unreliable. But without better training, the court ruled, Razor should not have automatically been considered reliable enough to give deputies probable cause for the car search.
"However much we dog lovers may tend to anthropomorphize their behavior, the fact is that dogs are not motivated to acquire skills that will assist them in their chosen profession of detecting contraband," wrote Judge Stevan Northcutt.
Local law agencies say it's too early to speculate on the ruling's impact.
Susan Shanahan, the assistant attorney general who is handling the appeal for the state, said the state probably will ask the 2nd District Court of Appeal for a rehearing.
"The opinion's not final, and policies won't necessarily change until that opinion is final," she said.
The case would potentially have far-reaching implications and could influence cases nationwide, Shanahan said.
Some people are already celebrating the ruling.
"It'll change the way they do their training and record-keeping," said Tampa lawyer Rex Curry, Matheson's defense attorney. He argued Matheson's motion to suppress the drug evidence.
Curry said defense lawyers from across the country already are asking him for copies of his suppression motion for use in their own cases involving drug-sniffing dogs.
"The whole defense community's really barking about this," he said.
Hillsborough Sheriff's Office spokesman Lt. Rod Reder said the office will examine the ruling.
"We hope this really can be overturned," Reder said. "We find the dogs to be a very powerful and fair tool in the war on drugs."
In the past year, the 10 dogs the Sheriff's Office uses for drug searches and routine patrol handled 1,595 calls. Of those, 378 were drug searches of houses and cars, Reder said.
St. Petersburg police officials didn't want to comment on the decision, saying they needed time to research its implications.
Deputies in charge of the Pinellas County Sheriff's Office canine unit have been developing a system to track their dogs' success rates, said Detective Tim Goodman, an agency spokesman.
A supplement noting whether the dog was successful during a search goes into each report, Goodman said. Deputies have been working on making a master list to track the performance of the dogs. Goodman said the agency also tracks how the dogs perform in training exercises.
- Times staff writers Chris Tisch and Leanora Minai contributed to this report. Christopher Goffard can be reached at 813-226-3337 or goffard@sptimes.com
© Copyright 2003 St. Petersburg Times. All rights reserved
……………………………………
Sniff search
If drug-sniffing dogs can provide probable cause for police to search private vehicles, they should be properly trained and their skills documented.
A Times Editorial
© St. Petersburg Times
published August 19, 2003
© St. Petersburg Times
published August 19, 2003
In an important ruling earlier this month, Florida's 2nd District Court of Appeals said that police dogs used to sniff out illicit narcotics must be properly trained and evaluated, with thorough records kept, before their responses may be deemed reliable. According to the court, the Sheriff's Office in HillsboroughCounty was not doing enough to ensure that its drug-detecting dogs were conditioned to "alert" to contraband alone, as opposed to some other trigger. The ruling laid down a set of guidelines the department will have to follow if it wants to use evidence obtained through the use of the dogs.
The unanimous ruling by a three-judge panel would seem to be just a matter of common sense, but it is sure to be appealed. The Sheriff's Office, like nearly all other law enforcement agencies, uses drug-detecting dogs as a way to circumvent the Constitution's warrant requirement, and it apparently doesn't want this convenient tool scrutinized too closely. But this is precisely the role the courts should play. Rather than being appealed, the court's ruling should be a model for the rest of the state.
In the field, drug-sniffing dogs are often used when a driver, pulled over for a traffic infraction, refuses to give police consent for his vehicle to be searched. The deputy or officer handling the dog will direct it around the perimeter of the car. If the dog alerts to the presence of narcotics, police are deemed to have probable cause and may conduct a legal search of the car's interior.
Why should a driver pulled over for speeding be subject to this intrusive process? If police have no cause to believe the driver is a drug runner, why should dogs be used at all? In truth, they shouldn't be, but the U.S. Supreme Court has said the use of drug-sniffing dogs doesn't constitute a search under the Fourth Amendment, and that means police may deploy them with relative impunity.
There is still a role for the courts, however, in ensuring that dogs are the precision tools for finding drugs that law enforcement claims.
In the current case, a Hillsborough County Sheriff's drug-detecting dog, Razor, was used in May 1999 to smell a car driven by Gary Alan Matheson. He had been stopped for a traffic infraction. After the dog alerted to the presence of drugs, the car was searched and illegal drugs were found. The trial court refused to suppress the evidence, and Matheson, who then pleaded no contest, was given probation.
In reversing the conviction, the state appeals court found that Razor's alert was not reliable, due to the poor training and record-keeping done by the Sheriff's Office. Among many deficiencies, Razor's success and failure rate was not documented, the dog had not been subject to controlled negative testing (where he searches and there are no drugs present), and he had not been given training to ignore residual smells of drugs. While the Customs Service puts its drug-detecting dogs through a 12-week course, Razor's training lasted only five weeks. The court found that this lack of rigor meant his alert on Matheson's car was not reliable and could not justify a search.
Drug-sniffing dogs give police the power to invade our private vehicles - bypassing the need to persuade a judge to issue a warrant. This exception to the Constitution is based entirely on the dependability of the dog's skills. All the court did was to require those skills to be real and documented. That should not be too much to ask.
Matheson v. State, 870 So. 2d 8 - Fla: Dist. Court of Appeals, 2nd Dist. 2003
Saturday, August 24, 2013
Ellis Curry was a member of Florida State University's Law Review at the College of Law
Ellis Curry was a member of Florida State University's Law Review at the College of Law
Ellis Curry was a member of Florida State University's Law Review at the College of Law. Fla. St. U. L. Rev.
http://www.flickr.com/photos/ellis_curry/
Ellis Curry 3004 River Grove Drive, Tampa, FL 33610. Phone 813 238-5371
Attorney at Law
http://www.flickr.com/people/ellis_curry/
Ellis Curry was a member of Florida State University's Law Review at the College of Law. Fla. St. U. L. Rev.
http://www.flickr.com/photos/ellis_curry/
Ellis Curry 3004 River Grove Drive, Tampa, FL 33610. Phone 813 238-5371
Attorney at Law
http://www.flickr.com/people/ellis_curry/
Sunday, July 21, 2013
Ellis Rex Curry IV of 3004 River Grove Drive Tampa, FL 33610 (813) 238-5371
Ellis Rex Curry IV of 3004 River Grove Drive Tampa, FL 33610 (813) 238-5371. "Curry is one of the best lawyers you could ever hope to find. He understands the legal system. I do not mean, well you have a Judge and a Jury and there is opposing council and discovery and then you present your case etc. etc. No he understands it all the way to the not always pretty underbelly. School gave him a piece of paper. His experience came from the trenches." - Gary Matheson, Telecommunications Consultant and Contractor, on Linkedin.com http://www.linkedin.com/in/rexcurry1
http://www.atcen.com/leadership/www.flhsmv.gov-en-espanol&page=3
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Flickr: Ellis Curry Photostream http://www.flickr.com/photos/48255328@N03/
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| Ellis Curry |
Friday, April 9, 2010
Ellis R. Curry attorney win in plea agreement case re: possession of firearm
Ellis R. Curry attorney win in plea agreement case re: possession of firearm.
United States v. Romano 314 F.3d 1279 (11th 2002) - The Government properly concedes that appellant was denied the entire benefit of his plea agreement because it breached the agreement when the prosecutor strongly endorsed the probations officer's recommendation (in the PSI) that the court enhance appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the two sections related to conduct wholly unrelated to the offense to which appellant had plead guilty, possession of a firearm by a convicted felon. The prosecutor knew that the application of those sections would constitute error. What's more, he knew that by urging the court to apply them, he - that is, the Government - was breaching the plea agreement then and there. And, he must have known that because he was an officer of the court, who regularly appeared before the court as an attorney for the United States, the court might be inclined to accept his representations as reliable, as constituting a correct statement of the law, and act accordingly - which, indeed, is exactly what the court did. We therefore vacate the district court's judgment, and remand the case for a new sentencing hearing. VACATED and REMANDED, for further proceedings.
2002 U.S. App. LEXIS 26427,*;16 Fla. L. Weekly Fed. C 130
http://laws.lp.findlaw.com/11th/0011505opn.html
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://openjurist.org/314/f3d/1279/united-states-v-romano
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://scholar.google.com/scholar_case?case=14620769958996613040
...................................................
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROMANO, Defendant-Appellant.
No. 00-11505
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2002 U.S. App. LEXIS 26427;16 Fla. L. Weekly Fed. C 130
December 20, 2002, Decided
December 20, 2002, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the Middle District of Florida. D. C. Docket No. 99-00208-CR-ORL-22-B. Anne C. Conway, Judge.
DISPOSITION: Vacated and remanded.
COUNSEL: For Romano, Appellant: Ellis Rexwood Curry, Attorney at Law, Tampa, FL.
For United States of America, Appellee: U.S. Attorney's Office, M.D. of Florida, Tampa, FL. Assistant U.S. Attorney/Middle Dist. of FL, Orlando, FL. United States Attorney's Office, Jacksonville, FL.
JUDGES: Before TJOFLAT, RONEY and FAY, Circuit Judges.
OPINIONBY: TJOFLAT
OPINION: TJOFLAT, Circuit Judge:
On October 19, 1999, a Middle District of Florida grand jury returned a two-count indictment against appellant, charging him, in Count One, with possession of a Ruger Mini-14 .223 caliber semi-automatic rifle in September 1998, (n1, footnote 1) after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and, in Count Two, with possession of a destructive device on May 11, 1998, that had not been registered to appellant in the National Firearms Registration and Transfer Records, in violation of 26 U.S.C. §§ 5841, 5845(a)(8), (f), 5861(d), and 5871.
On December 16, 1999, pursuant to a plea agreement, appellant pled guilty to the Count One offense, and agreed to pay $ 400 in restitution to Diane Setordepour. In the agreement, the Government promised not to oppose at sentencing appellant's requests that: (1) the court set the base offense level at level 14, pursuant to United States Sentencing Commission, Guidelines Manual, § 2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm by a "prohibited person"); (2) that the court adjust the base offense level to level 19 pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A)(offense involving 3-4 firearms), 2K2.1(b)(4) (offense involving a stolen firearm), and 3B1.4 (using a minor to commit a crime); and (3) that the court adjust level 19 downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, provided that subsequent adverse information did not render such adjustment "unwarranted."
In the Presentence Investigation Report (PSI), the probation officer assigned to the case fixed the base offense level of the Count One offense at 14 and adjusted it upward to level 19, all in conformance with the plea agreement. The PSI, however, made two other adjustments - each providing a two-level [*3] increase of the base offense level - which the parties had not contemplated, because they related to the Count Two offense, which would be dismissed at sentencing. The probation officer made these adjustments pursuant to U.S.S.G. § 2K2.1(b)(3), because the "offense" involved a destructive device, and U.S.S.G. § 3C1.1, because appellant had obstructed justice. Since the probation officer gave appellant no credit for acceptance of responsibility, the PSI set the adjusted offense level at level 23. Coupled with a criminal history score of V, the Guidelines prescribed a prison sentence for a term of somewhere between 84 to 105 months.
Appellant interposed several objections to the PSI, among them that the adjusted offense level should not have included the two-level increases provided by sections 2K2.1(b)(3) and 3C1.1, since those increases were based on conduct involved in the Count Two offense, which was to be dismissed. The probation officer (who prepared the PSI) stated in the Addendum to the PSI that, due to the constraints of time, he had been unable to hold a "position of parties meeting" (for the purpose of discussing appellant's objections). Because he had been unable to hold [*4] the meeting, the probation officer, in the Addendum, adhered to the PSI as written, noting that the Government "agreed" with his use of sections 2K2.1(b)(3) and 3C1.1 to enhance the base offense level.
At the sentencing hearing, appellant renewed his objection to the sections 2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to the Count Two offense and, therefore, were irrelevant. The prosecutor acknowledged that, in negotiating the plea agreement, the parties had not contemplated that appellant's base offense level would be enhanced for conduct that related not to Count One, but to Count Two, which was not before the court. The prosecutor nonetheless urged the court to apply the two Guidelines enhancements, and the court did so. In addition, the prosecutor urged the court to depart upwardly from the Guildelines sentence range (recommended in the PSI) on the ground that "a criminal history category of five does not adequately represent the defendant's prior criminal conduct . . . we are suggesting . . . that there is a basis to move up to the next level on a guided departure to a criminal history category of six." After saying this, the prosecutor proceeded to [*5] argue at length (in five pages of the sentencing transcript) why the court should depart. The court rejected the prosecutor's request, adopted the factual recitations of the PSI and the Guidelines sentence range it prescribed, and, after affording appellant his right of allocution, sentenced him to a prison term of 105 months and dismissed Count Two of the indictment. Six days after the court imposed sentence, the prosecutor moved the court to order appellant to make the restitution called for in the plea agreement. Twenty-three days later, the court entered the requested restitution order.
In this appeal, appellant contends that the Government breached the plea agreement by urging the court to consider information wholly unrelated to the Count One offense and, based on such information, to enhance the Count One base offense level by a total of four levels pursuant to sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. In response, the Government notes that appellant failed to raise this issue before the district court. The Government is right; hence, we review appellant's contention for plain error. We note plain error if (1) error occurred, (2) the error is plain, (3) affects the [*6] defendant's substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings. United States v. Candelario, 240 F.3d 1300, 1308-09 (11th Cir.), cert. denied, 533 U.S. 922, 121 S. Ct. 2535, 150 L. Ed. 2d 705 (2001).
The Government properly concedes that appellant was denied the entire benefit of his plea agreement because it breached the agreement when the prosecutor strongly endorsed the probations officer's recommendation (in the PSI) that the court enhance appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the two sections related to conduct wholly unrelated to the offense to which appellant had plead guilty, possession of a firearm by a convicted felon. The prosecutor knew that the application of those sections would constitute error. What's more, he knew that by urging the court to apply them, he - that is, the Government - was breaching the plea agreement then and there. And, he must have known that because he was an officer of the court, who regularly appeared before the court as an attorney for the United [*7] States, the court might be inclined to accept his representations as reliable, as constituting a correct statement of the law, and act accordingly - which, indeed, is exactly what the court did. n2
We therefore vacate the district court's judgment, and remand the case for a new sentencing hearing. n3
VACATED and REMANDED, for further proceedings.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 footnote 1 Such possession began on September 26, 1998 and ended on October 4, 1998, when appellant voluntarily surrendered the semi-automatic rifle firearm (along with two other firearms) to deputies of the Orange County, Florida sheriff's office.
n2 The prosecutor's final act - in his effort to obtain a sentence far beyond what the parties contemplated when they executed the plea agreement - was to urge the court to depart from the Guidelines sentence range, by increasing appellant's criminal history category from V to VI. United States v. Burns, 501 U.S. 129, 139, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123 (1991), teaches that the defendant must be given "reasonable notice" that the court is contemplating an upward departure from the Guidelines sentence range. In United States v. Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001), we explained Burns as follows:
"This notice must specifically identify the ground on which the district court is contemplating an upward departure." [Burns, 501 U.S.] at 138-39, 111 S. Ct. at 2182. This Court has held that Burns requires that the notice "must affirmatively indicate that an upward departure is appropriate based on a particular ground" and that the defendant must be provided with notice "setting forth the potential ground (or grounds) for the upward departure within a 'reasonable' amount of time prior to the sentencing hearing." United States v. Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).
In this case, the court had not provided appellant with notice that it was considering a departure. Thus, had the court bowed to the prosecutor's urging and departed from the prescribed Guidelines sentence range, the court would have committed error that was plain. As noted above, though, the court declined the prosecutor's invitation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*8]
Because the error was "plain," we must ask whether it affected appellant's substantial rights. The sentence range the Guidelines prescribes for an offense level of 23 (the level the court used) and a criminal history category of V is 84 to 105 months. The sentence range prescribed by an offense level of 19 - the level yielded by omitting the section 2K2.1(b)(3) and 3C1.1 enhancements - is 57 to 71 months. We have no difficulty in concluding that the use of the higher sentence range affected appellant's substantial rights. Finally, we ask whether the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. More specifically, the question is whether the prosecutor's conduct produced such affect. We think it obvious that it did.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Appellant challenges the court's untimely entry of the restitution order. Given our disposition, we need not deal with the restitution aspect of the case. The court, on remand, should consider the restitution issue anew. Appellant also contends that he received ineffective assistance at sentencing. His claim is moot; moreover, such claims should be brought in a collateral proceeding under 28 U.S.C. § 2255.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*9]
US v. Romano, 314 F.3d 1279 (11th Cir. 2002)
http://scholar.google.com/scholar_case?case=14620769958996613040&q=related:sBeyRNBo58oJ:scholar.google.com/&hl=en&as_sdt=40000
The above case was also cited by 7 other cases
US v. De La Garza, 516 F. 3d 1266 (11th Cir. 2008)
http://scholar.google.com/scholar_case?case=11228292603546889&hl=en&as_sdt=40000
US v. Velez, 357 F. 3d 239 (2nd Cir. 2004)
http://scholar.google.com/scholar_case?case=4277013719399623869&hl=en&as_sdt=40000
United States v. Woody Daniel Franklin, No. 07-14087 (11th Cir. May 29, 2008)
http://scholar.google.com/scholar_case?case=3081806861712917416&hl=en&as_sdt=40000
United States v. Yasmani Lazo, No. 08-10681 (11th Cir. August 8, 2008)
http://scholar.google.com/scholar_case?case=249649997400426391&hl=en&as_sdt=40000
US v. Geronimo Enrique Gastelum, No. 09-11440 (11th Cir. November 17, 2009)
http://scholar.google.com/scholar_case?case=17876269408864668597&hl=en&as_sdt=40000
United States v. Damaris Cruz, No. 08-10673 (11 Cir. November 17, 2008)
http://scholar.google.com/scholar_case?case=2452031652210934650&hl=en&as_sdt=40000
"Because De La Garza failed to raise this issue before the district court, however, we review for plain error."
- in US v. De La Garza, 2008 and 2 similar citations
"Under plain error review, there must be (1) an error,(2) that is plain,(3) that affects the defendant's substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." - in US v. Gastelum, 2009 and one similar citation
"Moreover, even if the government's change in position regarding an adjustment for acceptance of responsibility did constitute a breach of the plea agreement, Lazo has not shown plain error-the standard applicable here because Lazo did not voice any objection below to the government's alleged breach of the plea agreement."
- in United States v. Lazo, 2008
"We review an argument that the government breached a plea agreement, raised for the first time on appeal, for plain error."
- in United States v. Cruz, 2008
Ellis Curry www.flickr.com/photos/ellis_curry/
Ellis Curry http://www.flickr.com/people/ellis_curry/
United States v. Romano 314 F.3d 1279 (11th 2002) - The Government properly concedes that appellant was denied the entire benefit of his plea agreement because it breached the agreement when the prosecutor strongly endorsed the probations officer's recommendation (in the PSI) that the court enhance appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the two sections related to conduct wholly unrelated to the offense to which appellant had plead guilty, possession of a firearm by a convicted felon. The prosecutor knew that the application of those sections would constitute error. What's more, he knew that by urging the court to apply them, he - that is, the Government - was breaching the plea agreement then and there. And, he must have known that because he was an officer of the court, who regularly appeared before the court as an attorney for the United States, the court might be inclined to accept his representations as reliable, as constituting a correct statement of the law, and act accordingly - which, indeed, is exactly what the court did. We therefore vacate the district court's judgment, and remand the case for a new sentencing hearing. VACATED and REMANDED, for further proceedings.
2002 U.S. App. LEXIS 26427,*;16 Fla. L. Weekly Fed. C 130
http://laws.lp.findlaw.com/11th/0011505opn.html
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://openjurist.org/314/f3d/1279/united-states-v-romano
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://scholar.google.com/scholar_case?case=14620769958996613040
...................................................
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROMANO, Defendant-Appellant.
No. 00-11505
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2002 U.S. App. LEXIS 26427;16 Fla. L. Weekly Fed. C 130
December 20, 2002, Decided
December 20, 2002, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the Middle District of Florida. D. C. Docket No. 99-00208-CR-ORL-22-B. Anne C. Conway, Judge.
DISPOSITION: Vacated and remanded.
COUNSEL: For Romano, Appellant: Ellis Rexwood Curry, Attorney at Law, Tampa, FL.
For United States of America, Appellee: U.S. Attorney's Office, M.D. of Florida, Tampa, FL. Assistant U.S. Attorney/Middle Dist. of FL, Orlando, FL. United States Attorney's Office, Jacksonville, FL.
JUDGES: Before TJOFLAT, RONEY and FAY, Circuit Judges.
OPINIONBY: TJOFLAT
OPINION: TJOFLAT, Circuit Judge:
On October 19, 1999, a Middle District of Florida grand jury returned a two-count indictment against appellant, charging him, in Count One, with possession of a Ruger Mini-14 .223 caliber semi-automatic rifle in September 1998, (n1, footnote 1) after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and, in Count Two, with possession of a destructive device on May 11, 1998, that had not been registered to appellant in the National Firearms Registration and Transfer Records, in violation of 26 U.S.C. §§ 5841, 5845(a)(8), (f), 5861(d), and 5871.
On December 16, 1999, pursuant to a plea agreement, appellant pled guilty to the Count One offense, and agreed to pay $ 400 in restitution to Diane Setordepour. In the agreement, the Government promised not to oppose at sentencing appellant's requests that: (1) the court set the base offense level at level 14, pursuant to United States Sentencing Commission, Guidelines Manual, § 2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm by a "prohibited person"); (2) that the court adjust the base offense level to level 19 pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A)(offense involving 3-4 firearms), 2K2.1(b)(4) (offense involving a stolen firearm), and 3B1.4 (using a minor to commit a crime); and (3) that the court adjust level 19 downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, provided that subsequent adverse information did not render such adjustment "unwarranted."
In the Presentence Investigation Report (PSI), the probation officer assigned to the case fixed the base offense level of the Count One offense at 14 and adjusted it upward to level 19, all in conformance with the plea agreement. The PSI, however, made two other adjustments - each providing a two-level [*3] increase of the base offense level - which the parties had not contemplated, because they related to the Count Two offense, which would be dismissed at sentencing. The probation officer made these adjustments pursuant to U.S.S.G. § 2K2.1(b)(3), because the "offense" involved a destructive device, and U.S.S.G. § 3C1.1, because appellant had obstructed justice. Since the probation officer gave appellant no credit for acceptance of responsibility, the PSI set the adjusted offense level at level 23. Coupled with a criminal history score of V, the Guidelines prescribed a prison sentence for a term of somewhere between 84 to 105 months.
Appellant interposed several objections to the PSI, among them that the adjusted offense level should not have included the two-level increases provided by sections 2K2.1(b)(3) and 3C1.1, since those increases were based on conduct involved in the Count Two offense, which was to be dismissed. The probation officer (who prepared the PSI) stated in the Addendum to the PSI that, due to the constraints of time, he had been unable to hold a "position of parties meeting" (for the purpose of discussing appellant's objections). Because he had been unable to hold [*4] the meeting, the probation officer, in the Addendum, adhered to the PSI as written, noting that the Government "agreed" with his use of sections 2K2.1(b)(3) and 3C1.1 to enhance the base offense level.
At the sentencing hearing, appellant renewed his objection to the sections 2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to the Count Two offense and, therefore, were irrelevant. The prosecutor acknowledged that, in negotiating the plea agreement, the parties had not contemplated that appellant's base offense level would be enhanced for conduct that related not to Count One, but to Count Two, which was not before the court. The prosecutor nonetheless urged the court to apply the two Guidelines enhancements, and the court did so. In addition, the prosecutor urged the court to depart upwardly from the Guildelines sentence range (recommended in the PSI) on the ground that "a criminal history category of five does not adequately represent the defendant's prior criminal conduct . . . we are suggesting . . . that there is a basis to move up to the next level on a guided departure to a criminal history category of six." After saying this, the prosecutor proceeded to [*5] argue at length (in five pages of the sentencing transcript) why the court should depart. The court rejected the prosecutor's request, adopted the factual recitations of the PSI and the Guidelines sentence range it prescribed, and, after affording appellant his right of allocution, sentenced him to a prison term of 105 months and dismissed Count Two of the indictment. Six days after the court imposed sentence, the prosecutor moved the court to order appellant to make the restitution called for in the plea agreement. Twenty-three days later, the court entered the requested restitution order.
In this appeal, appellant contends that the Government breached the plea agreement by urging the court to consider information wholly unrelated to the Count One offense and, based on such information, to enhance the Count One base offense level by a total of four levels pursuant to sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. In response, the Government notes that appellant failed to raise this issue before the district court. The Government is right; hence, we review appellant's contention for plain error. We note plain error if (1) error occurred, (2) the error is plain, (3) affects the [*6] defendant's substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings. United States v. Candelario, 240 F.3d 1300, 1308-09 (11th Cir.), cert. denied, 533 U.S. 922, 121 S. Ct. 2535, 150 L. Ed. 2d 705 (2001).
The Government properly concedes that appellant was denied the entire benefit of his plea agreement because it breached the agreement when the prosecutor strongly endorsed the probations officer's recommendation (in the PSI) that the court enhance appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the two sections related to conduct wholly unrelated to the offense to which appellant had plead guilty, possession of a firearm by a convicted felon. The prosecutor knew that the application of those sections would constitute error. What's more, he knew that by urging the court to apply them, he - that is, the Government - was breaching the plea agreement then and there. And, he must have known that because he was an officer of the court, who regularly appeared before the court as an attorney for the United [*7] States, the court might be inclined to accept his representations as reliable, as constituting a correct statement of the law, and act accordingly - which, indeed, is exactly what the court did. n2
We therefore vacate the district court's judgment, and remand the case for a new sentencing hearing. n3
VACATED and REMANDED, for further proceedings.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 footnote 1 Such possession began on September 26, 1998 and ended on October 4, 1998, when appellant voluntarily surrendered the semi-automatic rifle firearm (along with two other firearms) to deputies of the Orange County, Florida sheriff's office.
n2 The prosecutor's final act - in his effort to obtain a sentence far beyond what the parties contemplated when they executed the plea agreement - was to urge the court to depart from the Guidelines sentence range, by increasing appellant's criminal history category from V to VI. United States v. Burns, 501 U.S. 129, 139, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123 (1991), teaches that the defendant must be given "reasonable notice" that the court is contemplating an upward departure from the Guidelines sentence range. In United States v. Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001), we explained Burns as follows:
"This notice must specifically identify the ground on which the district court is contemplating an upward departure." [Burns, 501 U.S.] at 138-39, 111 S. Ct. at 2182. This Court has held that Burns requires that the notice "must affirmatively indicate that an upward departure is appropriate based on a particular ground" and that the defendant must be provided with notice "setting forth the potential ground (or grounds) for the upward departure within a 'reasonable' amount of time prior to the sentencing hearing." United States v. Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).
In this case, the court had not provided appellant with notice that it was considering a departure. Thus, had the court bowed to the prosecutor's urging and departed from the prescribed Guidelines sentence range, the court would have committed error that was plain. As noted above, though, the court declined the prosecutor's invitation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*8]
Because the error was "plain," we must ask whether it affected appellant's substantial rights. The sentence range the Guidelines prescribes for an offense level of 23 (the level the court used) and a criminal history category of V is 84 to 105 months. The sentence range prescribed by an offense level of 19 - the level yielded by omitting the section 2K2.1(b)(3) and 3C1.1 enhancements - is 57 to 71 months. We have no difficulty in concluding that the use of the higher sentence range affected appellant's substantial rights. Finally, we ask whether the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. More specifically, the question is whether the prosecutor's conduct produced such affect. We think it obvious that it did.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Appellant challenges the court's untimely entry of the restitution order. Given our disposition, we need not deal with the restitution aspect of the case. The court, on remand, should consider the restitution issue anew. Appellant also contends that he received ineffective assistance at sentencing. His claim is moot; moreover, such claims should be brought in a collateral proceeding under 28 U.S.C. § 2255.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*9]
US v. Romano, 314 F.3d 1279 (11th Cir. 2002)
http://scholar.google.com/scholar_case?case=14620769958996613040&q=related:sBeyRNBo58oJ:scholar.google.com/&hl=en&as_sdt=40000
The above case was also cited by 7 other cases
US v. De La Garza, 516 F. 3d 1266 (11th Cir. 2008)
http://scholar.google.com/scholar_case?case=11228292603546889&hl=en&as_sdt=40000
US v. Velez, 357 F. 3d 239 (2nd Cir. 2004)
http://scholar.google.com/scholar_case?case=4277013719399623869&hl=en&as_sdt=40000
United States v. Woody Daniel Franklin, No. 07-14087 (11th Cir. May 29, 2008)
http://scholar.google.com/scholar_case?case=3081806861712917416&hl=en&as_sdt=40000
United States v. Yasmani Lazo, No. 08-10681 (11th Cir. August 8, 2008)
http://scholar.google.com/scholar_case?case=249649997400426391&hl=en&as_sdt=40000
US v. Geronimo Enrique Gastelum, No. 09-11440 (11th Cir. November 17, 2009)
http://scholar.google.com/scholar_case?case=17876269408864668597&hl=en&as_sdt=40000
United States v. Damaris Cruz, No. 08-10673 (11 Cir. November 17, 2008)
http://scholar.google.com/scholar_case?case=2452031652210934650&hl=en&as_sdt=40000
"Because De La Garza failed to raise this issue before the district court, however, we review for plain error."
- in US v. De La Garza, 2008 and 2 similar citations
"Under plain error review, there must be (1) an error,(2) that is plain,(3) that affects the defendant's substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." - in US v. Gastelum, 2009 and one similar citation
"Moreover, even if the government's change in position regarding an adjustment for acceptance of responsibility did constitute a breach of the plea agreement, Lazo has not shown plain error-the standard applicable here because Lazo did not voice any objection below to the government's alleged breach of the plea agreement."
- in United States v. Lazo, 2008
"We review an argument that the government breached a plea agreement, raised for the first time on appeal, for plain error."
- in United States v. Cruz, 2008
Ellis Curry www.flickr.com/photos/ellis_curry/
Ellis Curry http://www.flickr.com/people/ellis_curry/
Friday, April 2, 2010
Ellis Rexwood Curry IV of 3004 River Grove Dr Tampa FL 33610 at 813 238-5371 appeal win
Ellis Rexwood Curry IV of 3004 River Grove Dr Tampa FL 33610 at 813 238-5371 appeal win.
http://www.flickr.com/photos/48255328@N03/4429656782/
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fl&vol=98-03161&invol=1
http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/D83BAD656FA4BE5685256801006A7E09?OpenDocument
4th Amendment search & seizure court case win.
Office of the Attorney General
AG number: 10006 Style: Johnson vs. State
Jurisdiction: 2nd DCA
AG HEADNOTE
Verification of tip caller's identity
Even if a caller provides his name, address and phone number, police still
need more to verify the caller's identity before he can be considered
a citizen-informant to justify the search of a criminal suspect, the 2nd DCA
said.
The DCA said a trial court should have granted a motion to suppress evidence
against a man charged with possession of cocaine and drug
paraphernalia. Johnson was arrested after a deputy, acting on a
telephone tip, found him sitting on a curb with a cigarette pack
containing crack cocaine lying approximately a foot away. The DCA concluded
that the informant's information, without further verification, was
insufficient to provide reasonable suspicion for the deputy to question
Johnson. The court cited the Florida Supreme Court's 1998 decision in
J.L. vs. State, which held that innocent detail tips from anonymous
informants must be substantiated in some additional manner.
"In this case, the informant was anonymous because the police did not
independently verify his identity after he called, even though he provided
his name, address, and telephone number. Additionally, the deputy testified
that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before (the deputy) initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson," the
DCA said.
Opinion # 10006
www.flhsmv.gov/CASES/Johnson1199.html
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
C. JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Appeal from the Circuit Court for Hillsborough County; Judge.
Ellis Rexwood Curry IV, Tampa, for Appellant.
PER CURIAM.
Following a plea of no contest to the charges of possession of cocaine and
possession of drug paraphernalia, Curtis Johnson appeals his
dispositive motion to suppress. We reverse because the law enforcement
officer did not have reasonable suspicion to conduct a Terry stop
based on an anonymous informant's tip or probable cause to arrest Johnson
based on the discovery of cocaine in a cigarette pack.
In April 1998 Deputy Amsler was dispatched regarding a complaint that a
black male in his forties, wearing burgundy pants and a white shirt,
was selling narcotics at a certain address. Although the complainant had
provided the police his name, address, and telephone number, the
police did not corroborate this information prior to dispatching the deputy.
When the deputy arrived at the address, he saw Johnson sitting on
the curb alone, whittling with a knife. Johnson fit the informant's
description of the suspect.
Approximately a foot away from Johnson, Deputy Amsler noticed an empty
cigarette pack with a flip top that was lying open. As the deputy
reached for the cigarette pack, Johnson reached toward it, but abruptly
pulled back. Inside the cigarette pack, the deputy found one small piece
of rock cocaine. Deputy Amsler directed Johnson to stand up and be patted
down. In Johnson's left rear pocket, the deputy felt a long object,
removed it, and discovered a glass pipe with wire stuck into it. Deputy
Amsler put Johnson in his vehicle while he ran a Valtox test, and
determined that the substance was presumptively crack cocaine. The deputy
then arrested Johnson.
On appeal, the State contends that the informant's tip provided reasonable
suspicion to conduct a Terry stop of Johnson. The State also claims
that the discovery of cocaine in the cigarette pack created probable cause
to arrest Johnson. We disagree and address the State's contentions
in turn.
We conclude that the information provided by the informant in this case did
not give Deputy Amsler reasonable suspicion to pat down Johnson.
The Florida Supreme Court has recently held that innocent detail tips from
anonymous informants must be substantiated in some additional
manner. See J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998) (an officer did
not have reasonable suspicion to stop a defendant based solely on
an anonymous informant's description of the defendant's clothing and
location and belief that he was engaging in illegal activity). In this case,
the
informant was anonymous because the police did not independently verify his
identity after he called, even though he provided his name,
address, and telephone number. See Maynard v. State, No. 98-02708 (Fla. 2d
DCA June 4, 1999) (requiring the police to verify a caller's
identity by either dispatching an officer to the caller's address or calling
them back to gain information that would corroborate their identity in
order for the caller to qualify as a citizen-informant). Additionally, the
deputy testified that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before Deputy Amsler initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson.
Moreover, the discovery of crack cocaine in the open cigarette pack could
not have provided probable cause to arrest Johnson because there
was no evidence that Johnson ever had possession of the cigarette pack.
Deputy Amsler noticed what appeared to be an empty cigarette pack
on the ground a foot away from Johnson. There was no testimony that the pack
was ever in Johnson's possession or that Johnson claimed
ownership of the pack. Even though Johnson reached toward the cigarette
pack, he pulled back to let the deputy grab it first. The State's
argument that Johnson abandoned the crack cocaine found in the cigarette
pack is also without merit for the same reason. Johnson could not
have abandoned property if there was no evidence that he possessed it in the
first place. Since Deputy Amsler did not have probable cause to
arrest Johnson, any contraband obtained as a result of a search incident to
arrest must be suppressed. See Gnann v. State, 662 So. 2d 406,
408 (Fla. 2d DCA 1995).
Because the anonymous informant's tip did not provide reasonable suspicion
to pat down Johnson and the discovery of cocaine in the cigarette
pack did not provide probable cause to arrest him, the trial court erred in
denying the motion to suppress. Accordingly, we reverse and remand
with directions for the trial court to grant Johnson's motion to suppress.
Reverse and remanded.
THREADGILL, A.C.J., and PARKER and SALCINES, JJ., Concur.
Ellis Curry blogspot
http://www.flickriver.com/places/United+States/Illinois/River+Grove/search/
 |
| Ellis Curry |
http://www.flickr.com/photos/48255328@N03/4429656782/
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fl&vol=98-03161&invol=1
http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/D83BAD656FA4BE5685256801006A7E09?OpenDocument
4th Amendment search & seizure court case win.
Office of the Attorney General
AG number: 10006 Style: Johnson vs. State
Jurisdiction: 2nd DCA
AG HEADNOTE
Verification of tip caller's identity
Even if a caller provides his name, address and phone number, police still
need more to verify the caller's identity before he can be considered
a citizen-informant to justify the search of a criminal suspect, the 2nd DCA
said.
The DCA said a trial court should have granted a motion to suppress evidence
against a man charged with possession of cocaine and drug
paraphernalia. Johnson was arrested after a deputy, acting on a
telephone tip, found him sitting on a curb with a cigarette pack
containing crack cocaine lying approximately a foot away. The DCA concluded
that the informant's information, without further verification, was
insufficient to provide reasonable suspicion for the deputy to question
Johnson. The court cited the Florida Supreme Court's 1998 decision in
J.L. vs. State, which held that innocent detail tips from anonymous
informants must be substantiated in some additional manner.
"In this case, the informant was anonymous because the police did not
independently verify his identity after he called, even though he provided
his name, address, and telephone number. Additionally, the deputy testified
that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before (the deputy) initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson," the
DCA said.
Opinion # 10006
www.flhsmv.gov/CASES/Johnson1199.html
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
C. JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Appeal from the Circuit Court for Hillsborough County; Judge.
Ellis Rexwood Curry IV, Tampa, for Appellant.
PER CURIAM.
Following a plea of no contest to the charges of possession of cocaine and
possession of drug paraphernalia, Curtis Johnson appeals his
dispositive motion to suppress. We reverse because the law enforcement
officer did not have reasonable suspicion to conduct a Terry stop
based on an anonymous informant's tip or probable cause to arrest Johnson
based on the discovery of cocaine in a cigarette pack.
In April 1998 Deputy Amsler was dispatched regarding a complaint that a
black male in his forties, wearing burgundy pants and a white shirt,
was selling narcotics at a certain address. Although the complainant had
provided the police his name, address, and telephone number, the
police did not corroborate this information prior to dispatching the deputy.
When the deputy arrived at the address, he saw Johnson sitting on
the curb alone, whittling with a knife. Johnson fit the informant's
description of the suspect.
Approximately a foot away from Johnson, Deputy Amsler noticed an empty
cigarette pack with a flip top that was lying open. As the deputy
reached for the cigarette pack, Johnson reached toward it, but abruptly
pulled back. Inside the cigarette pack, the deputy found one small piece
of rock cocaine. Deputy Amsler directed Johnson to stand up and be patted
down. In Johnson's left rear pocket, the deputy felt a long object,
removed it, and discovered a glass pipe with wire stuck into it. Deputy
Amsler put Johnson in his vehicle while he ran a Valtox test, and
determined that the substance was presumptively crack cocaine. The deputy
then arrested Johnson.
On appeal, the State contends that the informant's tip provided reasonable
suspicion to conduct a Terry stop of Johnson. The State also claims
that the discovery of cocaine in the cigarette pack created probable cause
to arrest Johnson. We disagree and address the State's contentions
in turn.
We conclude that the information provided by the informant in this case did
not give Deputy Amsler reasonable suspicion to pat down Johnson.
The Florida Supreme Court has recently held that innocent detail tips from
anonymous informants must be substantiated in some additional
manner. See J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998) (an officer did
not have reasonable suspicion to stop a defendant based solely on
an anonymous informant's description of the defendant's clothing and
location and belief that he was engaging in illegal activity). In this case,
the
informant was anonymous because the police did not independently verify his
identity after he called, even though he provided his name,
address, and telephone number. See Maynard v. State, No. 98-02708 (Fla. 2d
DCA June 4, 1999) (requiring the police to verify a caller's
identity by either dispatching an officer to the caller's address or calling
them back to gain information that would corroborate their identity in
order for the caller to qualify as a citizen-informant). Additionally, the
deputy testified that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before Deputy Amsler initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson.
Moreover, the discovery of crack cocaine in the open cigarette pack could
not have provided probable cause to arrest Johnson because there
was no evidence that Johnson ever had possession of the cigarette pack.
Deputy Amsler noticed what appeared to be an empty cigarette pack
on the ground a foot away from Johnson. There was no testimony that the pack
was ever in Johnson's possession or that Johnson claimed
ownership of the pack. Even though Johnson reached toward the cigarette
pack, he pulled back to let the deputy grab it first. The State's
argument that Johnson abandoned the crack cocaine found in the cigarette
pack is also without merit for the same reason. Johnson could not
have abandoned property if there was no evidence that he possessed it in the
first place. Since Deputy Amsler did not have probable cause to
arrest Johnson, any contraband obtained as a result of a search incident to
arrest must be suppressed. See Gnann v. State, 662 So. 2d 406,
408 (Fla. 2d DCA 1995).
Because the anonymous informant's tip did not provide reasonable suspicion
to pat down Johnson and the discovery of cocaine in the cigarette
pack did not provide probable cause to arrest him, the trial court erred in
denying the motion to suppress. Accordingly, we reverse and remand
with directions for the trial court to grant Johnson's motion to suppress.
Reverse and remanded.
THREADGILL, A.C.J., and PARKER and SALCINES, JJ., Concur.
Ellis Curry blogspot
http://www.flickriver.com/places/United+States/Illinois/River+Grove/search/
Saturday, March 20, 2010
Ellis Rexwood Curry 3004 River Grove Dr Tampa FL 33610 phone 813 238-5371 appellate victory
Ellis Rexwood Curry 3004 River Grove Dr Tampa FL 33610 phone 813 238-5371
Defense Attorney in appellate case 2nd DCA District Court of Appeal Hillsborough Florida.
Victory in 4th Amendment court opinion in Search & Seizure Case
Office of the Attorney General
AG number: 6009 Style: White vs. State
Jurisdiction: 2nd DCA
AG HEADNOTE
Search and seizure - founded suspicion
Narcotics found during a search must be suppressed because an officer lacked
founded suspicion to stop a vehicle, the 2nd DCA held.
Private security officers contacted police when they were suspicious of a
vehicle driving back and forth in front of a closed marina around 3:30
a.m. As the investigating officer spoke with the guards, she saw the vehicle
drive by. The officer later stopped the vehicle, and a search
revealed marijuana and a firearm. A trial court refused to suppress the
evidence but the DCA reversed, concluding that the totality of the
circumstances did not give rise to a reasonable suspicion that a crime was
about to occur.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
KELVIN D. WHITE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_________________________________ )
Appeal from the Circuit Court for Pinellas County; Philip J. Federico,
Judge.
Ellis Rexwood Curry, IV, Tampa, for Appellant.
NORTHCUTT, Acting Chief Judge.
The State charged Kelvin White with possession of a firearm and possession
of marijuana. White moved to suppress the gun and the drugs,
which were discovered when law enforcement officers stopped his car. The
circuit court denied his motion, and he pleaded no contest to the
charges, reserving the right to appeal his dispositive motion to suppress.
We reverse.
At the hearing on White's motion to suppress, two private security officers
testified that they were working in the area surrounding Maximo
Marina in St. Petersburg on the night White was arrested. At about 3:30
a.m., they noticed a car driving back and forth in front of the marina,
which was closed at the time. The car then turned into the parking lot of an
adjacent motel, which was open for business. At a second hearing on
the motion, the motel's security guard testified that he also observed the
car, which was moving, but had its lights turned off. The car pulled into a
parking space. When this security guard approached the car, one of the
occupants shouted profanities at him. While the occupant's remarks
were not threatening, the security guard felt "a little bit" threatened. The
car then drove away.
The motel's security guard contacted the St. Petersburg police department,
and Officer Marian Schmidt arrived to investigate. She was
speaking with the security guards when the suspicious car drove by on a
public street next to the motel and marina property. Officer Schmidt
pursued the car and stopped it. She smelled marijuana, placed White and his
passenger in her patrol car, and discovered marijuana cigarettes
in the car's ashtray and a gun on the passenger-side front floorboard. White
was arrested and charged with the previously-mentioned crimes.
Officer Schmidt did not have the requisite "well-founded, articulable
suspicion of criminal activity" necessary to support a traffic stop. See
Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). To justify an
investigatory stop, law enforcement must have a reasonable suspicion that
the
person has committed, is committing or is about to commit a crime. See id.;
see also ' 901.151(2), Fla. Stat. (1995). The testimony at the
suppression hearing showed that businesses in the area had been robbed at
some indeterminate time in the past. But no recent crime had
occurred, so the stop could not be justified by a suspicion that White or
his passenger were the perpetrators. Cf. Grant v. State, 718 So. 2d 238
(Fla. 2d DCA 1998) (upholding a stop where a car was driving without its
headlights, up and down a small street where a burglary had occurred
mere hours earlier). None of White's activities described at the hearing
could give rise to a belief that he was actually committing a crime. Any
suspicion that he was about to commit one was dissipated when he drove away
from the businesses, and no evidence showed that White's car
was returning to the business area when the guards spotted it driving down a
public street.
The totality of the circumstances in this case did not give rise to a
reasonable suspicion that criminal activity was afoot. The officer's stop of
White's car was improper, and all evidence seized as a result of the stop
should have been suppressed. We reverse White's convictions, and
we remand with directions to discharge him.
Reversed and remanded.
GREEN and SALCINES, JJ., Concur.
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- Ellis Rexwood Curry
- Ellis Rex Curry 3004 River Grove Dr Tampa FL 33610 at 813 238-5371