IN THE SUPREME COURT OF THE STATE OF FLORIDA PETITIONER S BRIEF ON DISCRETIONARY JURISDICTION

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA GAYNOR EARL TEDDER, JR., v. Petitioner, CASE NO. SC DCA CASE NO. 2D STATE OF FLORIDA, Respondent. PETITIONER S BRIEF ON DISCRETIONARY JURISDICTION Siobhan Helene Shea 2008 JAMES MARION MOORMAN Public Defender Tenth Judicial Circuit SIOBHAN HELENE SHEA Special Assistant Public Defender Florida Bar Number Polk County Courthouse P.O. Box 9000 PD Bartow, Florida (863) Counsel for Petitioner

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... Error! Bookmark not defined. SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH BRYE V. STATE, 927 So. 2d 78 (FLA. 1 st DCA 2006) AND STATE V. CAMPELL, 911 SO. 2d 192 (FLA. 4 th DCA 2005) CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE ii

3 TABLE OF AUTHORITIES Cases Brye v. State, 927 So. 2d (Fla. 1 st DCA 2006) 4, 6 Golphin v. State, 945 So. 2d 1174 (Fla. 2006) 7,8 Salgat v. State, 652 So. 2d 815 (Fla. 1995) 7 State v. Baez, 894 So. 2d 115 (Fla. 2004) 7 State v. Campbell, 911 So. 2d 192 (Fla. 4 th DCA 2005) 4, 6 State v. Diaz, 850 So. 2d 435 (Fla. 2003) 7 State v. Frierson, 926 So. 2d 1139 (Fla.), cert. denied, U.S., 127 S.Ct. 734, 166 L.Ed. 2d 570 (2006) 7 State v. Gibson, Case No. SC State v. Tedder, Case No. SC iii

4 PRELIMINARY STATEMENT This is a petition for discretionary review of the decision of the Second District Court of Appeal on the grounds of express and direct conflict of decisions. The decision on review is included in the Appendix. In this brief all references to the Appendix attached to this Brief are identified as A.

5 STATEMENT OF THE CASE AND FACTS Petitioner sought to suppress evidence in the trial court on the grounds the evidence was obtained during an illegal detention because he reasonably would not feel free to leave while the police officer retained his driver s license after a warrants check had come back clean. The trial court denied the motion to suppress. The Second District Court of Appeal affirmed. A The following relevant facts come from the District Court s opinion. On March 25, 2003, Sergeant James Creghan was patrolling in Ft. Myers when he saw Petitioner standing by his truck and Michael Varnum walking toward a nearby pay phone. A 2. Cregan asked the men, what s up? A 2. Petitioner indicated they were in Ft. Myers because Varnum had a job setting tile. A 2. Creghan was suspicious and asked for identification. A 2. The two men gave Crehan their drivers licenses. A 2. The licenses showed they were from Panama City. A 2. Sergeant Crehan called in a warrants check. A 2. During the warrants check two back-up officers arrived. A 2. The warrants check came back clear. A2 Petitioner and Varnum were separated and interviewed by the back-up officers for twenty or thirty minutes. A 2-3. The back-up officers also completed Field Identification Cards on the two men. A 2-3. During this entire time, after the warrants check cam back clean, Petitioner s driver s license was retained by the 2

6 police. A 2-3. As the officers were completing the field interrogation cards a canine officer arrived with a narcotics detection dog. A 3. Seargent Creghan instructed the canine officer to walk the dog around the truck. A 3. During the walk, the dog alerted to the passenger door. A 3. No drugs were found. A 3. However, other evidence -- duct tape and masks were found. A 3. The majority of the Second District Court of Appeal rejected the claim there was a detention when Petitioner was questioned by the police and his vehicle was searched while his driver s license was retained by the police after the warrants check came back clean. A 6. Petition filed a motion for rehearing, which the District Court denied. Petitioner now seeks review in this Court. 3

7 SUMMARY OF THE ARGUMENT The decision below, that extended detention of a person s license after a warrants check came back clean, does not constitute a non-consensual investigatory detention, is in express and direct conflict with Brye v. State, 927 So. 2d (Fla. 1 st DCA 2006) and State v. Campbell, 911 So. 2d 192 (Fla. 4 th DCA 2005). 4

8 ARGUMENT POINT I THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH BRYE V. STATE, 927 So. 2d 78 (FLA. 1 st DCA 2006) AND STATE V. CAMPELL, 911 SO. 2d 192 (FLA. 4 th DCA 2005). In this case police Sergeant Cregham approached Petition and Varnum. A 2. Cregham requested identification and Petitoner and Varnum provided their drivers licenses. A 2. 1 Creghan called in a warrants check. A 2. During the warrants check two back-up officers arrived. A 2. The warrants check came back clean. A 2. Petitioner and Varnum were separated and interviewed by the back-up officers for twenty to thirty minutes. A 2-3. The back-up officers also completed Field Interrogation Cards on the two men. A 2-3. During this entire time, after the warrants check had come back clean, Petitioner s driver s license was retained by the officers. A The majority of the District Court rejected the claim that continued detention of the license after a warrants check had come back clean constituted a detention where Petitioner would not feel free to leave. A 6. The dissent took a different position: In this case, the undisputed evidence shows that Creghan 1 The stop occurred in Fort Myers and the licenses showed the men lived in Panama City. 2 In fact, the license was never returned to Petitioner. 5

9 retained Tedder s driver s license while he questioned Tedder for twenty to thirty minutes after the warrants check came back clear. Moreover, even when Creghan decided to stop questioning Tedder, he did not return Tedder s driver s license but instead gave it to the backup officer for use in completing a Field Interrogation Card. Based on these undisuputed facts, the trial court erred when it found that the consensual encounter lasted until Rex alerted to Tedder s truck. While the trial court s finding that Creghan and the other officers did not show authority by using their emergency lights or sirens, displaying ehir badges, removing their guns from their holsters, or ordering Tedder around is supported by the evidence, the trial court made no finding whatsoever as to the effect of Creghan s retention of Tedder s driver s license for twenty to thirty minutes on the consensual nature of the encounter. This extended retention of a driver s license is exactly the type of action that can transform an otherwise consensual encounter into an investigatory detention... Faced with this situation, no reasonable person would believe that he could abandon his driver s license, his personal belongings, and his only means of transportation 500 miles from home and simply walk away from the encounter. A The majority Second District opinion in this case conflicts with Brye v. State, 927 So. 2d 78, 82 (Fla. 1 st DCA 2006), in which an officer retaining identification after a warrant check came back clean was found to be seizure. The Second District opinion also conflicts with State v. Campbell, 911 So. 2d 192 (Fla. 4 th DCA 2005) which found a consensual encounter was converted into a seizure when an officer retained identification after a warrants check came back clean. This Court accepted review of Campbell. However, this Court discovered at oral argument 6

10 that the license was not retained after the warrants check came back clean. Justice Pariente explained that he case where identification is retained after the warrant check comes back clean was not before the Court: I concur in the decision to exercise our discretion to discharge jurisdiction. The certified question is premised on the assumption that the officer retained Campbell s driver s license and obtained consent to search his car after completing the warrant check. We now know this scenario is inconsistent with the testimony during the suppression hearing. Our discretionary review of district court decisions certifying questions of great public importance under article V, section 3(b)(4), Florida Constitution, is limited to decisions that rule on the questions certified. Salgat v. State, 652 So. 2d 815, 815 (Fla. 1995). We should not use our certified question jurisdiction to correct errors of fact on which a certified question is based and then compose our own question of great public importance based on the actual facts. Issues involving temporary detentions and warrant checks are reaching us with such frequency that it is unlikely the question certified by the Fourth District will long evade our review. See e.g., Golphin v. State, 945 So. 2d 1174 (Fla. 2006); State v. Frierson, 926 So. 2d 1139 (Fla.), cert. denied, U.S., 127 S.Ct. 734, 166 L.Ed. 2d 570 (2006); State v. Baez, 894 So. 2d 115 (Fla. 2004); State v. Diaz, 850 So. 2d 435 (Fla. 2003). I would prefer to reach that question when it actually comports with the facts. 948 So. 2d at (emphasis added) 3. This case presents precisely the set of 3 In Golphin v. State, 945 So. 2d 1174 (Fla. 2006) this Court didn t directly address the issue of retention of a license, but emphasized that the retention of identification does not result in a detention as long as the identification does not remain in the police officer s possession longer than necessary to conduct a warrant check. 945 So. 2d at Indeed, the concurring opinion in 7

11 facts on which the certified question in Campbell is premised. It is time for this issue to stop evading this Court s review. 4 Golphin noted that in State v. Diaz, 850 So. 2d 435, 439 (Fla. 2003) the Court held that identification may not be legitimately retained by police after the legitimate police action (such as a warrant check) had been accomplished. 945 So. 2d at A different issue in this case (the dog alert) was prematurely brought by the State to this Court for review while a motion for rehearing on this issue was sought by Petitioner. See State v. Tedder, Case No. SC That case has been tagged to and stayed pending the decision in State v. Gibson, Case No. SC That case does not address the timely review of this issue. 8

12 CONCLUSION Based on the foregoing facts, authorities, and arguments Petitioner respectfully requests this Court to exercise its discretionary jurisdiction to review the decision of the Fourth District Court of Appeal. Respectfully submitted, JAMES MARION MOORMAN Public Defender Tenth Judicial Circuit SIOBHAN HELENE SHEA Special Assistant Public Defender Florida Bar Number Attorney for Petitioner Polk County Courthouse P.O. Box 9000 PD Bartow, Florida (863)

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Petitioner s Brief on Discretionary Jurisdiction was served by Express U.S. Mail to Assistant Attorney General Helene S. Parnes, 3507 East Frontage Road, Suite 200, Tampa, Florida this day of June, Of Counsel CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the foregoing brief is prepared in 14 point Times New Roman font, in compliance with Fla. R. App. P (a) (2). Of Counsel 10

14 IN THE SUPREME COURT OF THE STATE OF FLORIDA GAYNOR EARL TEDDER, JR., v. Petitioner, CASE NO. SC08- DCA CASE NO. 2D STATE OF FLORIDA, Respondent. APPENDIX TO PETITIONER S BRIEF ON DISCRETIONARY JURISDICTION Second District Court of Appeal Opinion in Tedder v. State, 2D (March7, 2008) 11