5D05-2462 ClaireHewitt v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2462

Case Date: 02/13/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

CLAIRE L. HEWITT, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 17, 2006 Appeal from the Circuit Court for Orange County, C. Alan Lawson, Judge. James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D05-2462

PLEUS, C.J. Hewitt appeals her convictions for possession of cannabis and possession of cocaine. She challenges the lower court's denial of her motion to suppress, arguing that the police improperly initiated custodial interrogation without warning her of her

constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). 1 We disagree and affirm. After legally stopping Hewitt's car for a traffic violation, Officer Grace Peek of the Orlando Police Department Uniform Drug Patrol Unit approached Hewitt and asked to see her driver's license. Hewitt stated she did not have one and had never been issued one. Peek then asked Hewitt to step out of her car, which Hewitt did. For officer safety reasons, Peek asked Hewitt if she had a gun, knives or drugs on her person. Hewitt started crying and said she had some "weed" on her. Hewitt retrieved two bags of marijuana. Officer Peek then arrested Hewitt. Upon searching Hewitt incident to arrest, Peek found a bag containing 14 grams of cocaine in Hewitt's possession. Officer Peek did not Mirandize Hewitt before asking her if she had any drugs. Four or five other members of the Drug Patrol Unit were present during the stop. Neither Officer Peek nor any of the other officers present threatened, yelled at, drew their guns on or flashed their spotlights at Hewitt. At the point she asked Hewitt about drugs, Officer Peek did not intend to arrest Hewitt for not having a driver's license, but Hewitt was not free to leave because Officer Peek was investigating the status of her driver's license. Peek later wrote Hewitt a traffic citation for failure to stop and a criminal citation for driving without a valid driver's license. After hearing argument, the lower court denied the motion to suppress, reasoning as follows: Okay. As to the second issue of whether the defendant was in custody at the time that the question was asked, do you have any guns or drugs on you, that really is a close call. Hewitt also argues that the police illegally stopped her but that issue does not merit discussion. 2
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