2D05-189 / Wallace v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 2D05-189

Case Date: 07/27/2007

Plaintiff: 2D05-189 / Wallace

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DWAIN D. WALLACE, III, a/k/a DWAINE DENORRIS WALLACE, a/k/a DWAYNE D. WALLACE, Appellant, v. STATE OF FLORIDA, Appellee.

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Case No. 2D05-189

Opinion filed July 27, 2007. Appeal from the Circuit Court for Hillsborough County; Debra K. Behnke, Judge. James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Dwain D. Wallace, III, challenges the investigatory detention that led to the revocation of his probation. After Mr. Wallace was detained, he made inculpatory

statements to the police. However, the informant--whose tip to the police was the basis for Mr. Wallace's detention--was not simply an honest, disinterested citizen. Because this informant's reliability was doubtful and because the police failed to corroborate the information that he had provided, Mr. Wallace's detention was not based on a wellfounded suspicion. For this reason, the trial court erred in failing to suppress the statements made by Mr. Wallace after his illegal detention. Accordingly, we reverse the trial court's order that revoked Mr. Wallace's probation. The Facts On April 12, 2002, eight officers from the Tampa Police Department-- including one K-9 officer--were investigating narcotics offenses outside a lounge on Nebraska Avenue in Tampa. The officers were part of a special unit. They were not dressed in standard police uniforms. Instead, they each wore a vest that identified them as "POLICE." There were four to six police vehicles at the scene. Officer Randall J. Camp noticed a gold Mercedes Benz automobile parked in the vicinity of the lounge. The Mercedes attracted Officer Camp's attention because it was illegally parked. Officer Camp shined his flashlight into the Mercedes and saw the handle of a pistol that was partially hidden beneath the front passenger seat. The pistol was not visible by looking through the front passenger window. Officer Camp was able to observe the handle of the pistol only by leaning over the vehicle's hood to look directly under the seat. After Officer Camp spotted the pistol in the Mercedes, the police ran the license plate number to determine the identity of the vehicle's registered owner. In addition, the K-9 officer walked her dog around the vehicle. The dog alerted for the presence of narcotics.

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Next, Officer Camp went into the lounge. He testified later that there were at least forty men in the lounge. Officer Camp arranged for the lounge's bouncer to ask for the owner of the Mercedes to step outside; the bouncer warned the patrons that the Mercedes would be towed unless it was moved. In response to this announcement, Mr. Ifeanyi Ike-Onyechi left the lounge and approached the Mercedes with his keys in his hand. The officers immediately detained Mr. Ike-Onyechi and handcuffed him. Officer Camp searched the Mercedes and recovered the pistol from beneath the front passenger seat. He also found a cigar containing marijuana on the floor in the back of the vehicle. Based on the presence of the firearm and the marijuana in the Mercedes, Mr. Ike-Onyechi was placed under arrest. Officer Michael Liberti informed Mr. Ike-Onyechi of his rights under Miranda.1 After being advised of his rights, Mr. Ike-Onyechi agreed to speak with the officers. He told Officer Liberti that he had arrived at the lounge in the Mercedes with two other men. Mr. Ike-Onyechi said that one of these men was called "Mooch." According to Mr. Ike-Onyechi, he knew "Mooch" through an automotive detailing shop. Mr. Ike-Onyechi never identified the third individual. Mr. Ike-Onyechi told Officer Liberti that after he and the two other men had arrived at the lounge and he had parked and locked the Mercedes, "Mooch" asked him to unlock the car. According to Mr. Ike-Onyechi, "Mooch" explained that he had a gun that he could not take into the lounge and that he needed to lock it in the car. Using his keyless-entry remote, Mr. Ike-Onyechi unlocked the Mercedes and watched as "Mooch" opened the passenger door and placed an object in the car. Mr. Ike-Onyechi believed

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Miranda v. Arizona, 384 U.S. 436 (1966). -3-

that the object was a gun. Mr. Ike-Onyechi then relocked the car, and the three men went into the club. In addition, Mr. Ike-Onyechi denied ownership of the marijuana cigar that was found on the floor in the back of the car. After Mr. Ike-Onyechi had made these statements to Officer Liberti, Mr. Wallace walked out of the lounge. According to the officers, Mr. Wallace appeared to be calm and relaxed, and he walked at a casual pace. As Mr. Wallace walked past the officers, Mr. Ike-Onyechi identified him as "Mooch," the man who had placed the pistol in the car. Officers Camp and Liberti immediately approached Mr. Wallace and detained him. Officer Camp testified that he advised Mr. Wallace of his rights under Miranda. Mr. Wallace acknowledged that he understood his rights, and he agreed to speak to the officers. Officer Camp then interrogated Mr. Wallace. According to Officer Camp, Mr. Wallace initially denied that he had arrived at the lounge in the Mercedes with Mr. Ike-Onyechi. He also denied placing the pistol under the car's front passenger seat. Mr. Wallace claimed that he had arrived at the lounge in a blue Corolla. However, after further questioning, Mr. Wallace admitted that he had been a passenger in the Mercedes and that he had placed the pistol under the front passenger seat. Mr. Wallace denied that he owned the pistol. Mr. Wallace said that Mr. Ike-Onyechi had given him the pistol when they had arrived at the lounge and that he had handled it only briefly after Mr. Ike-Onyechi asked him to place it under the seat. Mr. Wallace also admitted that he was a convicted felon. Based on Mr. Wallace's admissions, Officer Camp arrested him for being a convicted felon in possession of a firearm. The officers charged Mr. Ike-Onyechi with

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possession of marijuana, and they released him on his own recognizance. Mr. Wallace's probation supervisor subsequently filed an affidavit alleging that Mr. Wallace had violated the terms and conditions of his probation by being in possession of a firearm. The Proceedings in the Trial Court Mr. Wallace moved to suppress the statements that he had allegedly made after he was detained outside the lounge. The trial court heard the motion to suppress and the violation of probation at the same time. The State called three witnesses at the hearing: (1) Mr. Wallace's probation supervisor, (2) Officer Camp, and (3) Officer Liberti. The State did not call Mr. Ike-Onyechi. At the hearing, defense counsel represented to the trial court that Mr. Ike-Onyechi was "on the run" and that there was "an outstanding warrant for his arrest." The prosecutor did not contradict defense counsel's representations. At the hearing, Mr. Wallace testified that he had arrived at the lounge with his wife in a Ford Thunderbird. He denied that he had been in possession of a firearm, and he denied that he had made incriminating statements to the police officers. On the motion to suppress, defense counsel argued that Mr. Ike-Onyechi was an unreliable informant whose tip was not sufficient to give the police officers a well-founded suspicion to detain Mr. Wallace. The trial court ruled "that the detention was okay." On the violation of probation, the trial court deemed the police officers to be more credible than Mr. Wallace and found that he had violated condition five of his probation.2

Standard condition five of Mr. Wallace's probation required that he "live and remain at liberty without violating the law." -5-

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When Mr. Wallace was arrested outside the lounge in Tampa, he was serving the probationary portions of two "true split sentence[s]." See Poore v. State, 531 So. 2d 161, 164 (Fla. 1988), superseded on other grounds as recognized in Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000). Mr. Wallace had originally been sentenced to serve two concurrent twenty-five-year sentences. After serving fifteen years, the balances of the sentences were to be suspended and Mr. Wallace was to be placed on probation for a period of ten years. On October 21, 2002, after the trial court revoked Mr. Wallace's probation, it reimposed the two concurrent twenty-five-year sentences. The trial court gave Mr. Wallace credit for all of the time he had previously served in the Department of Corrections and credit for the time he had spent in jail before the reimposition of his sentences. Unfortunately, Mr. Wallace's trial counsel failed to file a timely notice of appeal on his behalf. On January 4, 2005, this court entered an order granting Mr. Wallace's petition for a belated appeal. This appeal followed. The Issue and the Standard of Review On appeal, Mr. Wallace raises two issues. We need address only Mr. Wallace's argument that the trial court erred in denying his motion to suppress the statements that the police testified that he had made after he was detained. We employ a mixed standard of review in considering the trial court's ruling on Mr. Wallace's motion to suppress. The trial court's determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the trial court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v.

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United States, 517 U.S. 690, 699 (1996); E.B. v. State, 866 So. 2d 200, 202 (Fla. 2d DCA 2004). Discussion As a preliminary matter, we note that the exclusionary rule applies in proceedings for the revocation of probation. See State v. Scarlet, 800 So. 2d 220, 22122 (Fla. 2001). Thus "evidence discovered during an unlawful detention and search is not admissible during a hearing to revoke probation." Lanier v. State, 936 So. 2d 1158, 1162 (Fla. 2d DCA 2006) (citing Scarlet and Williams v. State, 791 So. 2d 37, 38 (Fla. 2d DCA 2001)). Accordingly, if Mr. Wallace's detention was unlawful, then any statements that he allegedly made during that detention should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); J.G. v. State, 883 So. 2d 915, 926-27 (Fla. 1st DCA 2004); Lee v. State, 868 So. 2d 577, 581-82 (Fla. 4th DCA 2004). There are three levels of police encounters: (1) a consensual encounter; (2) an investigatory stop as described in Terry v. Ohio, 392 U.S. 1 (1968); and (3) an arrest. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). In this case, the parties agree that the police made an investigatory stop of Mr. Wallace after he walked out of the lounge and was identified as "Mooch" by Mr. Ike-Onyechi. In Popple, the Supreme Court of Florida outlined the characteristics of an investigatory stop: At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.

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