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Peynado v. State

Florida Court of Appeals, Fourth District

August 1, 2018

COURTNEY PEYNADO, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael I. Rothschild, Judge; L.T. Case No. 16-010943CF10A.

          Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

          Damoorgian, J.

         Courtney Peynado appeals his withhold of adjudication and sentence for one count of possession of cocaine following a plea. We reverse because the evidence supporting the charge against Appellant was the result of an illegal search and seizure.

         Appellant was arrested and charged with one count of possession of cocaine after police found crack cocaine in a food container held by Appellant. Appellant moved to suppress the evidence on the grounds that it was obtained as the result of an illegal search and seizure. The matter proceeded to a suppression hearing where the following was established via the testimony of the arresting officer.

         At around 7:30 a.m., the officer and his partner were patrolling a high crime area. The officer, who was wearing a vest with the word "Sheriff" written on it, was driving an unmarked SUV with the windows rolled down. As the officer proceeded to turn at an intersection, he observed two males standing at the corner of the intersection. One of the males, who the officer identified as Appellant, was holding an open white food container in one hand and a fork in the other.

         As the officer turned, Appellant looked up with a "deer in headlights" expression on his face. Appellant then dropped his fork, followed by a large, yellow, chunky item, into the food container and pushed the item down with the fork. Based on his training and twenty-five years of experience as a law enforcement officer, the officer testified that he immediately recognized the item dropped into the food container as crack cocaine. The officer stopped his vehicle, instructed his partner to detain Appellant, and took the container, which contained grits, out of Appellant's hands. Using the fork, the officer lifted the item out of the grits. Testing confirmed that the item was in fact crack cocaine.

         On cross-examination, defense counsel attempted to ascertain how far the officer was when he observed Appellant drop the item into the container. In so doing, the record reflects that defense counsel moved about the courtroom several times while asking the officer if the distance separating them was the same as the distance that separated the officer and Appellant. Aside from generically testifying that he was "close enough to see the crack drop out of [Appellant's] hand," the officer steadfastly refused to give an approximation of his distance from Appellant. In fact, the officer told defense counsel "[y]ou can go right out the door, I still won't say."

         After viewing the cocaine, which the court described as a white, semi-waxy, one inch square which at first glance looked like a pat of butter, the court made the following finding with regard to the officer's credibility:

First, there's no way I believe the officer when he says he was able to immediately identify the object that was dropped into the container as being crack cocaine. I don't think-I think it's incomprehensible from almost any distance based on what this court observed to be able to say that no matter with what training and experience that the object was in fact crack cocaine.
I can tell you with complete surety, even with perfect vision, from the size of the item that I saw in evidence there's no way that someone from the back of this courtroom would be able to tell me that they could recognize what I saw as a white square dropping into a takeout plate was crack cocaine. If it was maybe a foot away or two feet away or even five feet away, with the officer's training and experience considering where he was, etc., maybe [it] could be something I could buy.

         Nonetheless, citing to case law involving the application of the plain view doctrine, the court denied the motion to suppress ...


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