2D04-5660 / State v. Tanner

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Second District Court of Appeal » 2005 » 2D04-5660 / State v. Tanner

State: Florida

Court: Florida Southern District Court

Docket No: 2D04-5660

Case Date: 12/09/2005

Plaintiff: 2D04-5660 / State

Defendant: Tanner

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA,                                                            )
)
Appellant,                                                                   )
)
v.                                                                           )   Case No. 2D04-5660
)
AMANDA VERNELL TANNER,                                                       )
)
Appellee.                                                                    )
___________________________________ )
Opinion filed December 9, 2005.
Appeal from the Circuit Court for Polk
County; Susan W. Roberts, Judge.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Richard M. Fishkin,
Assistant Attorney General, Tampa, for
Appellant.
James Marion Moorman, Public Defender,
and Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellee.
LaROSE, Judge.
The State appeals the trial court’s order granting Amanda Vernell Tanner’s
dispositive motion to suppress evidence.   We affirm.

In the early morning of July 28, 2003, Deputy Bogus of the Polk County
Sheriff’s Department lawfully stopped a car driven by Robert Holshue.   Ms. Tanner was
a passenger.   After an initial contact with Mr. Holshue, Deputy Bogus returned to her
patrol car to write a citation for an expired tag.   She also called for back-up assistance.
Deputy Eschue responded to the scene, followed by Deputy Pry and her drug-sniffing
dog, Jerry Lee.
All three deputies then approached the car.   They directed Mr. Holshue
and Ms. Tanner to exit the car so Jerry Lee could sniff for the scent of drugs.   One or
more of the deputies commanded Ms. Tanner, despite her reluctance, to leave her
purse in the car.   After Mr. Holshue and Ms. Tanner exited the car, Jerry Lee “alerted,”1
jumped through an open window of the car, and “alerted” again.
A search of the purse disclosed illegal drugs.   The trial court granted Ms.
Tanner’s motion to suppress the illegal drugs.   It concluded that the deputies had no
basis to seize Ms. Tanner’s purse.   The trial court, relying on Matheson v. State, 870
So. 2d 8 (Fla. 2d DCA 2003), review dismissed, 896 So. 2d 748 (Fla. 2005), cert.
denied, 126 S.Ct. 545 (2005), also concluded that insufficient records of Jerry Lee’s
field performance and his lack of training to disregard residual drug odors rendered
invalid the deputies’ search of the interior of Mr. Holshue’s car.
We apply a mixed standard of review to the trial court’s ruling on a motion
to suppress.   The trial court’s determination of historical facts is presumptively correct
and subject to reversal only if unsupported by competent, substantial evidence.   The
1    Jerry Lee “alerts” by sitting when he smells the odor of drugs.   Based on his training,
Jerry Lee alerts to the scent of the actual presence of drugs as well as to residual
“dead” scents of drugs no longer present at the site of the dog sniff.
- 2 -

trial court’s determinations on mixed questions of law and fact are subject to de novo
review.   State v. Marrero, 890 So. 2d 1278 (Fla. 2d DCA 2005).
Deputy Bogus’ lawful stop of Mr. Holshue’s car was adequate to allow a
dog sniff for illegal drugs within a reasonable time frame.   See McNeil v. State, 656 So.
2d 1320, 1321 (Fla. 5th DCA 1995) (citing Cresswell v. State, 564 So. 2d 480 (Fla.
1990); State v. Williams, 565 So. 2d 714 (Fla. 3d DCA 1990)).   That alone, however, did
not authorize the deputies to deprive Ms. Tanner of her purse and, under the
circumstances, detain her.   “[She] did nothing to warrant her individual detention . . .
nor was there an independent ‘reasonable suspicion’ that her purse contained
contraband.”   Id.   Competent, substantial evidence supported the trial court’s finding
that the deputies unlawfully seized Ms. Tanner’s purse.   The unlawful seizure supports
the trial court’s order granting Ms. Tanner’s motion to suppress.
The State also argues that the trial court erred in granting the motion to
suppress based on matters relating to Jerry Lee’s field performance and training.   The
State urges us to recede from our holding in Matheson, 870 So. 2d 8.   We decline the
invitation.   The trial court properly suppressed the physical evidence against Ms. Tanner
due to the unlawful seizure of her purse.   Consequently, any discussion of Matheson is
unnecessary.
Affirmed.
ALTENBERND and VILLANTI, JJ., Concur.
- 3 -

Download 2D04-5660.pdf