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State v. Zachery

Florida Court of Appeals, Second District

July 25, 2018

STATE OF FLORIDA, Appellant,
v.
EMMET ZACHERY, Appellee.

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

          Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Peter N. Koclanes, Assistant Attorney General, Tampa, for Appellant.

          Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee.

          LaROSE, Chief Judge.

         The State appeals the trial court's order granting Emmet Zachery's motion to suppress evidence. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). As explained below, the trial court erred in granting the motion. Accordingly, we reverse.

         I. Procedural and Factual Background

         The State charged Mr. Zachery with tampering with physical evidence. See § 918.13, Fla. Stat. (2016). Mr. Zachery filed a motion to suppress evidence (i.e., hand-rolled spice joints), arguing that it was obtained through an illegal stop and search. At an evidentiary hearing on the motion, the arresting officer, Kurt Bradshaw, testified to the following facts.

         Early on a summer evening, Officer Bradshaw was on patrol, driving his cruiser near downtown St. Petersburg in the area of a homeless shelter. He saw Mr. Zachery talking with another male. Officer Bradshaw had no prior contact with Mr. Zachery. He recognized the other person, however, as someone he had arrested before for drug offenses. When Officer Bradshaw initially drove by the two men, from five to ten feet away, he saw that Mr. Zachery had his hand extended, palm up, holding what Officer Bradshaw described as several hand-rolled spice joints.

         Officer Bradshaw made a U-turn and parked his cruiser on the street. Seeing Officer Bradshaw, Mr. Zachery immediately started to walk away. Officer Bradshaw exited his cruiser and called to Mr. Zachery. When Mr. Zachery stopped, Officer Bradshaw saw what appeared to be the spice joints in Mr. Zachery's clenched right hand. Officer Bradshaw then asked Mr. Zachery to "[j]ust drop them to the ground." Mr. Zachery "bladed" his body, as if using his body to place himself between Officer Bradshaw and Mr. Zachery's own right hand. Officer Bradshaw was concerned that Mr. Zachery was attempting to hide the spice joints and was going to either run or punch him.

         At that point, Officer Bradshaw grabbed Mr. Zachery and put him against the cruiser to place him under arrest for possession of contraband. Mr. Zachery crumbled the joints in his right hand and tried to throw them over a chain-linked fence. Mr. Zachery failed to clear the fence. Officer Bradshaw recovered the items and identified them as nine hand-rolled spice joints. Upon arresting Mr. Zachery, Officer Bradshaw discovered another spice joint in Mr. Zachery's pocket.

         Officer Bradshaw was a thirteen-year veteran of the St. Petersburg Police Department. He received extensive training in narcotics and narcotics detection. He had patrolled this area of St. Petersburg for three years. According to Officer Bradshaw, the area is known for its spice usage and sales. During the three years working in the area, Officer Bradshaw made "hundreds" of spice arrests and had been involved in spice-related incidents on a daily basis. Officer Bradshaw testified that, in his experience, he has only ever found spice in hand-rolled items recovered in the area. Officer Bradshaw testified that, based on his experience and training, spice joints are clearly distinguishable from hand-rolled cigarettes; they are thinly shaped and look like a lollipop stick.

         The State admitted the spice joints into evidence. The trial court examined them and concluded that they were indistinguishable from cigarettes. Consequently, the trial court found that Officer Bradshaw had conducted an illegal stop when he asked to speak with Mr. Zachery as no probable cause existed to believe that Mr. Zachery had committed or was committing a crime. The trial court also found that Officer Bradshaw conducted an illegal search when he asked Mr. Zachery to drop the alleged contraband. The trial court reasoned that there was no reason to detain ...


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