final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael J. Orlando, Judge; L.T. Case No.
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellee.
8:00 p.m. when a Lauderhill detective observed appellee and
two other males standing in front of a vacant townhouse. The
detective, who was on routine patrol, continued to watch
appellee and the other two individuals. After five minutes,
the detective pulled his car up beside appellee and the other
two individuals, who remained standing outside the vacant
house. The detective greeted the group using a "soft
seeing the detective approach, appellee and the other two
individuals fled. They ran through the parking lot as the
detective commanded them to stop. But they did not stop-they
kept running. During the pursuit, the detective saw appellee
reach into his pocket and retrieve a clear plastic bag which
he threw onto the ground. The detective finally caught up
with appellee, took him into custody, and recovered the
plastic bag. The contents of the bag tested positive for
hearing on appellee's motion to suppress, the detective
testified that he had participated in "many
operations" in and near the townhouse community where he
saw appellee the day of the arrest. Based on his experience
as a narcotics officer for several years and the totality of
the circumstances, the detective believed the plastic bag
discarded by appellee contained narcotics as soon as he saw
it. He explained that, in his experience, clear plastic bags
like that one are "indicative of holding
the suppression hearing, the trial court granted
appellee's motion to suppress the bag as the fruit of an
unlawful search and seizure. We, however, conclude that the
trial court erred in granting the motion to suppress and as
such we reverse and remand.
review an order on a motion to suppress by applying a mixed
standard of review, deferring to the trial court's
factual determinations but reviewing de novo its application
of the law to the facts of the case. Lee v. State,
868 So.2d 577, 579 (Fla. 4th DCA 2004).
trial court found that the detective lacked reasonable
suspicion to stop appellee. This conclusion was based in part
on the trial court's erroneous interpretation of R.R.
v. State, 137 So.3d 535 (Fla. 4th DCA
2014). The state contends that there was
reasonable suspicion. Alternatively, the state argues that
even if there was no reasonable suspicion, appellee's
flight after an officer's command to stop and his
subsequent abandonment of the contraband does not constitute
an unlawful seizure.
agree with the state's alternate theory that contraband
abandoned during flight from the police is not fruit of an
improper seizure and thus not subject to suppression. Due to
our agreement, there is no need to determine if there was in
fact reasonable suspicion to stop appellee before he
discarded the bag.
Florida and federal courts have held that reasonable
suspicion can arise after a suspect's flight and that
illegal contraband abandoned during flight from police is not
properly suppressed as the fruit of a seizure. In
California v. Hodari D., 499 U.S. 621, 629 (1991),
the United States Supreme Court held that, for Fourth
Amendment purposes, the defendant was not seized by police
until an officer physically caught up with and restrained him
after a chase. As such, the rock of cocaine the defendant
tossed away mid-run was not the fruit of any unlawful seizure
and should not have been suppressed. Id. Moreover,
the Supreme Court in Hodari D. noted that, if the
officer recognized the rock as a rock of cocaine at the time
it was discarded, reasonable suspicion would have attached at
that point anyway. Id. at 624. Hodari D. is
controlling law in this state pursuant to the conformity
clause of the Florida Constitution. See art. I,
§ 12, Fla. Const. ("The right of the people to be
secure . . . against unreasonable searches and seizures . . .
shall be construed in conformity with the 4th Amendment to
the United States Constitution, as interpreted by the United
States Supreme Court.").
court has reached similar conclusions when a defendant
discards an item of contraband while fleeing from police. In
Mosley v. State, 739 So.2d 672, 674 (Fla. 4th DCA
1999), a defendant began to walk away when he saw police
approaching him. The officers pursued the defendant and
yelled for him to stop, whereupon he reached into his pocket
and discarded an object that both officers immediately
recognized as a cocaine pipe. Id. We held that the
officers developed reasonable suspicion once they recognized
the pipe. Id. at 675. We also reversed a ...