11-0863 HARRY HENDERSON, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 11-0863

Case Date: 06/01/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA HARRY HENDERSON, Appellant, v. STATE OF FLORIDA, Appellee. ______________________/ Opinion filed June 1, 2012. An appeal from the Circuit Court for Duval County. Mallory Cooper, Judge. Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, and Daniel Cauley, Legal Intern, Office of the Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-0863

PER CURIAM. Harry L. Henderson appeals his convictions for possession of a firearm by a convicted felon, fleeing or attempting to elude a police officer, and driving while license suspended. He contends the trial court erred by (1) denying his motion to suppress because the arresting officer did not have reasonable suspicion or probable cause to stop his vehicle pursuant to the fellow-officer rule, and (2)

denying his motion for judgment of acquittal because the state failed to prove he was in constructive possession of the firearm. We affirm. Jacksonville Sheriff's Office Deputy J. E. Floyd testified that on June 24, 2010, a U.S. Marshall requested assistance over the police radio from available patrol units to stop an armed homicide suspect who was driving in front of him on Interstate 95 in a gold Kia with an Ohio tag. Deputy Floyd caught up with them and the Marshall pointed to the gold Kia as containing the suspect. Deputy Floyd activated his red and blue lights, as did Deputy Wilke, who was by then in front of Deputy Floyd. Deputy Wilke's SUV had Jacksonville Sheriff's Office insignia on it, "prominent and easily determined," as did Dep. Floyd's patrol vehicle. Deputy Floyd could also see lights and hear sirens behind him. When the lights and sirens commenced, appellant slowed, as if to pull off on the grass shoulder, but then continued to drive for one to two miles, although he could have pulled over on the shoulder during that time. Appellant did not speed or violate any traffic laws before he pulled over, but he did not stop until there were officers approaching from the opposite direction. A loaded .45-caliber handgun was found under the driver's seat. Deputy Floyd testified that he initiated the stop based on the U.S. Marshall's request. The U.S. Marshall did not testify. The deputy said he was given a teletype 2

at around 3:00 p.m. when he booked appellant into jail stating that a warrant for appellant's arrest had been issued in St. John's County. We reject the state's argument that the stop was justified by the fellowofficer rule. The rule cannot be applied under the facts of this case. Because there is no record evidence of the U.S. Marshall's grounds for suspecting that appellant had been involved in a homicide, "there is nothing on the record to impute" to Deputy Lloyd. J.P. v. State, 855 So. 2d 1262, 1265 (Fla. 4th DCA 2003). Accord C.H.C. v. State, 988 So. 2d 1145 (Fla. 2d DCA 2008). We also reject the state's claim that the arrest warrant issued five hours later justified the stop, absent any record evidence of the information that was provided to the judge who issued the warrant and when the information was provided. See, e.g., Mills v. State, 58 So. 3d 936 (Fla. 2d DCA 2011) (facts discovered after an arrest cannot be used retroactively to justify a warrantless arrest). We affirm the order, however, because appellant's act of fleeing or attempting to elude Deputy Floyd and the other officers 1 obviates the necessity of determining whether there was reasonable suspicion or probable cause for the

Section 316.1935(2), Florida Statutes (2010), provides: "Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree[.]" 3

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initial attempt to stop. 2 In a case much like that at bar, Green v. State, 530 So. 2d 480 (Fla. 5th DCA 1988) (on motion for rehearing en banc), the defendant drove through a driver's license checkpoint that was later shown to be unlawful because it did not meet constitutional standards. The defendant was stopped after a brief pursuit and cocaine was found in his car. The Fifth District affirmed the denial of a motion to suppress, finding that the stop was valid under section 316.1935, Florida Statutes, because the police stopped and searched him based on his flight rather than at the illegal checkpoint. Accord State v. McCune, 772 So. 2d 596, 597 (Fla. 5th DCA 2000) (reversing the order granting the defendant's motion to suppress, because, "regardless of the legality of the initial stop (or attempted stop), the statutory offense of fleeing and eluding does not require the lawfulness of the police action as an element of the offense."). Appellant relies instead upon Ray v. State, 40 So. 3d 95 (Fla. 4th DCA 2010), in which the Fourth District reversed the denial of the defendant's motion to suppress, finding there was no reasonable suspicion for the traffic stop. A police officer responding to a complaint about drug dealing witnessed a hand-to-hand

Although the prosecutor mainly argued below that the fellow-officer rule should defeat defendant's motion to suppress, he did briefly raise an argument regarding defendant's flight once the officer's lights and siren were activated. 4

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exchange between the defendant and another person. Believing this was a drug sale, the officer followed the defendant in her patrol car and activated the lights to make a stop. The defendant drove through a stop sign and then pulled over, dropping cocaine out the window. The Fourth District concluded that the initial hand-to-hand exchange did not by itself provide reasonable suspicion for the stop; hence, the officer had activated her emergency lights without reasonable suspicion. In addition, the defendant's traffic infraction of running the stop sign did not provide a reason for the stop because it occurred after the lights were activated. Ray is distinguishable, because the court did not characterize the defendant's brief act of running the stop sign before pulling over as flight, and there was no charge of fleeing or attempting to elude. In our case, when the officers attempted to pull appellant over with lights and sirens activated, appellant continued to drive for nearly two miles, providing probable cause to stop him for violating section 316.1935(2). Deputy Floyd's stated reason for the stop has no bearing on whether there was probable cause for the stop. See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Moore, 791 So. 2d 1246 (Fla. 1st DCA 2001). Our decision is also supported by recent case law addressing the lawfulness of a stop based upon a defendant's unprovoked flight. In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), the Florida Supreme Court affirmed a conviction for resisting an 5

officer without violence, finding that even if the officer initially lacked reasonable suspicion to stop the defendant, reasonable suspicion was established by the defendant's flight, citing Illinois v. Wardlow, 528 U.S. 119 (2000). In Wardlow,

the Court acknowledged that merely standing around in a high-crime area does not provide reasonable suspicion, but that the defendant's "unprovoked" flight did. "Headlong flight

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