08-0494 HUGH GARRETT KING, SR., v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 08-0494

Case Date: 07/07/2009

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA HUGH GARRETT KING, SR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed July 7, 2009. An appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge. Ted A. Stokes, Milton, for Appellant. Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee. CASE NO. 1D08-494 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

KAHN, J. This criminal appeal turns on whether City of Pensacola police officers had reasonable suspicion to detain a sport-utility vehicle in which appellant King was a passenger. Finding that the facts available to the officers would not support such reasonable suspicion, we reverse the conviction and remand with directions that Mr. King be discharged.

BACKGROUND The facts below were developed at a hearing on appellant's motion to suppress evidence of cocaine police officers discovered on his person following a traffic stop. After their shift muster, Pensacola police officers Decker and

Coverdale walked to their cruisers and prepared to leave the police station for their patrol duties. As they approached their cars, the officers heard a dispatch. Officer Decker testified during the proceeding below that, according to the dispatch, a 911 caller reported that two men had attempted to break into her home. She described the perpetrators as two black males, by then leaving the scene in what Officer Decker remembered as a gray Chevy Blazer. Officer Decker headed in the direction of the suspects' reported flight, which would have been north on D Street. Momentarily, he came upon a gray Chevrolet pickup truck. He did not stop that vehicle but, instead, circled back and noted that the occupants were a white man and a white woman. He eliminated these persons from suspicion of the crime. When asked why he turned to investigate a pickup truck, Officer Decker said that in his experience, people reporting crimes are often nervous and sometimes report inaccurate information as to type of vehicle. Officer Decker next saw a light green Ford Explorer occupied by two black men. The Explorer had properly halted at a stop sign at the intersection of

Gadsden and A streets, some eight blocks from the reported criminal event. He 2

watched the Explorer as it made a lawful turn northbound on A Street and proceeded at a lawful speed toward Cervantes Street. After the Explorer crossed Cervantes Street, Officer Decker initiated a stop using his spotlight and overhead blue lights. Officer Decker estimated the traffic stop occurred nine blocks from the attempted home invasion and some seven minutes afterward. By that time, Officer Coverdale had arrived at the scene and also approached the stopped SUV. During the stop, Officer Decker checked the driver's license while Officer Coverdale approached appellant, who was sitting in the passenger seat. Neither appellant nor the driver was sweating, nor did either appear to have been running. Neither officer described, with any specificity, efforts to directly ascertain whether or not appellant and his companion were connected to events reported in the 911 call; Officer Decker merely checked the driver's identification and advised the driver that the officers were "investigating a breaking and entering and that the vehicle fit the description" of the getaway car. According to Officer Coverdale, during his encounter with appellant, he removed a small folded pocketknife from the vehicle's center console to ensure his and his colleague's safety during the stop, saw a dusting of white powder on the exposed part of the blade, and opened the knife and discovered more of the same substance. After a field test of the substance indicated the powder was cocaine, Officer Coverdale asked appellant to exit the Explorer, and he searched appellant's 3

person.

Officer Coverdale retrieved a small bag of powder cocaine from

appellant's pocket, the discovery of which resulted in the charge at issue. The trial court also considered the 911 tape from the incident in question. According to that tape, the victim said the suspects were "two big black guys" who, according to the victim's son, left the scene in a green Blazer with tinted windows and headed north on D Street. The victim believed one of the

perpetrators was bald and that the suspects were wearing white tank tops or white T-shirts, although she could not be sure. Finally, she said that she heard the automobile operated by the perpetrators "spin out." Undisputed testimony at the suppression hearing established that, from the victim's 911 report, Officers Decker and Coverdale received only that information describing the suspects' race, gender, and vehicle. Officer Decker testified he may have received information that the victim reported the perpetrators were in their twenties or thirties

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