Date: 08-24-2013 Updated on: 11/29/20
Just yesterday, August 23rd, 2013, the Fifth District Court of Appeals (the appellate court for Seminole County, Orange County, Volusia County and Brevard County) released two opinions (neither opinion is final until the time for rehearing has passed, i.e., 15 days) where both defendants’ were charged with possession of cocaine under Florida Statute 893.13 and possession of a controlled substance with the intent to sell or deliver (one was cannabis the other a schedule four substance).
In both cases, the attorneys for the defendants moved the court to suppress the evidence, i.e., the cocaine, cannabis, and schedule four substance seized by the law enforcement officers. In both cases the trial court denied the defendants’ motions to suppress, and in both cases the Fifth District Court of Appeals reversed those decisions, informing the trial court that the evidence should have been suppressed and as a result the convictions of the defendants for possession of cocaine and possession of a controlled substance with intent to sell must be reversed. Also of interest, both cases were decided on an interpretation of reasonable suspicion despite the fact that the initial seizures by law enforcement were based on a different basis for a traffic stop; (to be discussed more later).
As previously stated, at least to some degree, both cases address the initial seizure of the defendant, and in doing so, in both cases, the Fifth District Court of Appeals found that the initial seizures of the defendant were unlawful, at least based on the evidence presented at the hearings. In both cases, the Court found that the officers lacked a reasonable suspicion required to conduct these seizures.
In Price v. State, the defendant was walking out of a pharmacy with a white bag, got into a vehicle, made some movements not indicative of a hand to hand transaction, and drove away. The officers conducted a traffic stop of this vehicle that did not commit any traffic infractions. The Fifth District Court of Appeals found that the officers did not have the requisite level of reasonable suspicion necessary to conduct the investigatory stop of the vehicle (i.e. a traffic stop).
The Court defined reasonable suspicion as follows:
The whole mosaic, the totality of circumstances, must be taken into account. “The detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” In defining particularity, the Court requires that the basis for the detention be grounded in specific and articulable facts. Unparticularized suspicions or hunches will not suffice.
After defining reasonable suspicion, the Fifth District Court of Appeals found that the officers lacked reasonable suspicion in this case. The Court went on to explain that if the facts in Price led to a finding that there was a reasonable suspicion, “the demarcation between reasonable suspicion and the forbidden hunch would be eviscerated.”
Ultimately, Mr. Price’s convictions for possession of cocaine, and possession of a schedule IV controlled substance with intent to sell or distribute have been reversed.
In Carter v. State, the Fifth District Court of Appeals came to the same conclusion as in Price, that there was insufficient reasonable suspicion of criminal activity for the initial seizure, and thus reversed the convictions for possession of cocaine, and possession of cannabis with intent to sell or distribute. The basis for the Court’s decision was slightly different here, however.
In Carter, the basis for the initial seizure was the allegation that the Defendant ran a stop sign. However, at the hearing, the only officer that testified could not recall if he actually saw the defendant run the stop sign or if his partner did. The trial court found that despite this vague testimony, the burden of reasonable suspicion had been satisfied. The Fifth District Court of Appeal disagreed. The Fifth District Court of Appeals decision in Carter was based on the nature of the testimony and not whether the alleged allegation provided reasonable suspicion, but whether the testimony provided a substantial competent basis that the actual allegation occurred. This is different than in Price, where there is no dispute as to whether the conduct occurred or whether the allegations were supported by competent evidence, but the issue was did the alleged conduct arise to the level of reasonable suspicion.
Because the only officer that testified in Carter could not substantially and competently testify that the defendant ran the stop sign the Fifth DCA reversed his convictions for possession of cocaine and possession with intent to sell or distribute cannabis. The Fifth DCA explained:
“‘Competent, substantial evidence has been defined as ‘such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred.’” C.M. v. Dep’t of Children & Families, 823 So. 2d 182, 183 (Fla. 5th DCA 2002) (quoting Duval Util. Co. v. Fla. Pub. Serv. Comm’n, 380 So. 2d 1028, 1031 (Fla. 1980)). Substantial evidence must be something more than a “mere iota or scintilla,” must have real probative value, and must be “real, material, pertinent and relevant.’Rahyns v. State, 752 So. 2d 617, 620 (Fla. 4th DCA 1999). “
The Fifth DCA’s ruling was based on the competent, substantial evidence standard. The Court, however, did address the fellow officer rule (Florida Statute 901.15(5)) in its opinion in Carter. Of interest, in doing so, the Court noted that an officer is justified in relying on another officer’s observations if those observations have been communicated to him.
Ultimately, both of the parties charged here with possession of cocaine, and possession with intent to sell or distribute did not prevail at the trial court but did so on appeal. Even if you have been convicted of these offenses you should call an attorney to see if you have any recourse. Time is of the essence as you only have thirty days after the conviction to begin the appellate process.