final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael I. Rothschild, Judge; L.T. Case No.
Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
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.
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.
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.
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.
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."
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.
citing to case law involving the application of the plain
view doctrine, the court denied the motion to suppress ...