final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Mark W.
W. Smith and Jesse Smith of Avera & Smith, LLP,
Gainesville, for Appellant.
Jo Bondi, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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
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 identificationwould 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." 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
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
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.
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.
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 ...