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Willis v. State

Florida Court of Appeals, First District

April 5, 2018

Daniel Heath Willis, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge.

          Rodney W. Smith and Jesse Smith of Avera & Smith, LLP, Gainesville, for Appellant.

          Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.

          Winsor, J.

         Less than an hour after police arrested Daniel Willis for shoplifting, they realized they had the wrong man. But in the meantime, officers searched Willis pursuant to that arrest and found drugs and paraphernalia. That discovery led to drug charges and an allegation that Willis violated his probation. Willis unsuccessfully moved to suppress the evidence, contending the search was unlawful. Willis then pleaded no contest, reserving his right to appeal on the suppression issue. We now reverse.

         I.

         In December 2015, a shoplifter victimized the Best Buy in Gainesville's Butler Plaza. Some employees saw the perpetrator flee on foot toward the nearby Texas Roadhouse, and others saw a Chevy Silverado leaving the scene. Police soon put out a bulletin for officers to be on the lookout for the truck and a slim white male wearing jeans and a hat. An officer spotted Willis-a slim white male wearing jeans and a hat-in the parking lot outside the Texas Roadhouse. The officer approached Willis, explained that he was a suspect in a criminal investigation, and told him to "hang out and just wait."

         While the first officer detained Willis, a second officer responded directly to the Best Buy. Store employees were gathering surveillance video for review, but rather than wait for the video, the second officer drove an eyewitness (a store employee) to the spot where Willis was detained. On the short drive over, the second officer told the witness how the showup identification[1]would work: Reading from a standard form, the second officer said the witness "should not feel [he has] to make an identification" and that "[i]t is just as important to exclude innocent persons from suspicion as it is to identify the suspect."[2] But after reading the standard instructions, the second officer added that "I think this is going to be unusual. There are two people involved and this was the getaway driver, I think."

         Willis was standing in front of the first officer's patrol car when the second officer drove up with the witness. Once within sight of Willis, the second officer asked the witness whether Willis was the shoplifter. From the patrol car's back seat, and some eight to ten car lengths away, the witness looked at Willis but hesitated to make a positive identification. He said that although Willis matched the general description, the clothing was not a match. He also explained that Willis's arm tattoo could not help the identification because the shoplifter had been wearing a jacket. The witness did note, though, that Willis had "a ball cap on and . . . a shaved face, " as did the shoplifter. While the witness continued to contemplate, the second officer asked "yes or no?" The witness said "yes."

         As soon as the witness said "yes, " the second officer radioed the first officer, relaying that Willis had been positively identified. The second officer then drove off with the witness, and the first officer arrested Willis. When the second officer got back to Best Buy, she learned the security footage was ready for review. Looking at the footage, she immediately realized Willis was not the shoplifter. She then drove back to the Texas Roadhouse parking lot to tell the first officer of the misidentification.

         In the short time between Willis's arrest and the realization that they had the wrong man, police searched Willis and found cash, a baggie with cocaine residue, and some cut up straws in his pocket. This discovery prompted a K9 officer, already on the scene, to walk his dog near Willis's nearby truck. After the dog alerted, officers searched the truck and found forty grams of marijuana, several baggies of cocaine, and a scale with marijuana and cocaine residue.

         The State charged Willis with possession of drugs and possession with intent to distribute, and Willis moved to suppress all evidence found as a result of the arrest, arguing that the showup identification that set everything ...


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