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.

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
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