11th Circuit Court of Appeals

English-only requirement for state exam
Alabama's policy of giving driver's license exams only in English violates the rights of that state's non- English speaking citizens and must be discontinued, the 11th U.S. Circuit Court of Appeals held. The court ruled in favor of a Spanish-speaking woman who filed a class-action lawsuit against the state policy, which was adopted after the state's Constitution was amended in 1990 to establish English as the state's official language. The 11th Circuit affirmed a lower court's conclusions that the woman's suit was not barred by the Eleventh Amendment; that federal law creates an implied private cause of action to obtain injunctive and declaratory relief under federal regulations prohibiting disparate impact discrimination against statutorily protected groups; and that the state's English-only policy constituted a disparate impact on the basis of national origin. "(W)e can find no error in the district court's conclusion of law that the English-only policy evinces an unlawful disparate impact based on national origin," the 11th Circuit said.
[Sandoval vs. Hagan, 11/30/99]

1st District Court of Appeal

Battery on officer after testifying
A slap on the shoulder of an officer outside a courtroom constitutes a battery upon an officer "engaged in the lawful performance of his duties," and the officer is therefore entitled to special protections provided by Florida law, the 1st DCA said. An angry defendant struck the officer outside the courtroom moments after the officer testified against him in a traffic case. Under section 784.07(2), F.S., battery on a law enforcement officer while the officer is "engaged in the lawful performance of his or her duties" is reclassified from a first-degree misdemeanor to a third-degree felony. The defendant argued that the officer was not entitled to greater protection than any other witness called to testify but the DCA disagreed, stating that the officer's court appearance stemmed from and was inseparably connected with his duties. "The trial court concluded that the jury could find that the officer was within the scope of his duties when he was struck immediately outside of the courtroom door after having testified. We decline to disturb the trial court's ruling," the DCA said.
Assistant Attorney General Sherri Tolar Rollison represented the state.
[Lee vs. State, 10/25/99]

2nd District Court of Appeal

Founded suspicion for highway stop
A law enforcement officer was justified when he pulled over a motorist who was driving 20 mph and more below the speed limit and weaving across lanes, the 2nd DCA said in reversing an order suppressing cocaine found during the stop. A deputy sheriff testified that he pulled over the car driven by Clifford Davidson when he saw it traveling on an interstate highway at a speed of between 40 and 48 mph in a 70 mph zone and continually drifting across lines on the road. The deputy testified that these actions were characteristic of an impaired driver, so he pulled the vehicle over. "As revealed by the deputy's testimony, the deputy's observations of Davidson's driving provided him with the founded suspicion necessary to conduct a stop of Davidson," the DCA said.
Assistant Attorney General Wendy Buffington represented the state on appeal.
[State vs. Davidson, 11/3/99]

EDITOR’S NOTE: The court distinguished Crooks v. State, where the arresting deputy had no objective basis to stop Crooks for failing to maintain a single lane since the deputy did not think that Crooks was intoxicated or otherwise impaired. This opinion is consistent with 15th Judicial Circuit Chief Assistant State Attorney, Ted Booras’ article which was featured in Legal Bulletin 99-11.

Drive-by drug transaction
An officer is required to see an actual exchange of drugs or money in order to instigate a stop in a typical "drive-by" drug transaction, the 2nd DCA said. John Stiffler appealed the denial of his motion to suppress drug evidence seized when he was stopped by a police officer. The DCA concluded that the officer did not have reasonable suspicion that a crime was being committed when he witnessed two white males driving in a jeep through a black neighborhood known for drugs and crime. The officer testified that he observed the jeep remain at a stop sign for a long period of time and saw a passenger dig in his back pants pocket. "(W)hile these circumstances were certainly suspicious, they do not rise to the level required to instigate a stop," the DCA said. "Although the court may look to various other factors to justify the stop, if the officer has not seen an actual exchange, those additional factors are not sufficient. "
Assistant Attorney General Tonja R. Vickers represented the state.
[Stiffler v. Florida]

Investigatory stop - suspect placed in patrol car
When the subject of an investigatory stop should not have been placed in a patrol car, contraband later found in the car where the subject had been sitting cannot be used as evidence against him, the 2nd DCA said. A citizen told a police officer that Terry Goss had charged him money to park in a public parking lot. The officer stopped Goss, patted him down for weapons, placed him in a patrol car, conducted a field interview and released Goss after giving him a warning. The officer later discovered drug contraband in the back seat of the patrol car, and Goss was arrested. The trial court denied Goss' motion to suppress the evidence but the DCA reversed, saying the state had failed to carry its burden regarding the scope of the investigatory stop. The DCA agreed that the officer had a reasonable suspicion to stop Goss and conduct a safety-related patdown, but said the stop became more intrusive when Goss was placed in the patrol car. There was no indication that Goss posed a threat or had been involved in a serious crime, and the vehicle was not needed as a shield against unpleasant weather conditions, the court noted. Therefore, the state failed to prove that the officer was justified in placing Goss in the patrol car and the contraband later found there cannot be used against him, the DCA concluded.
Assistant Attorney General Anne Sheer Weiner represented the state on appeal.
[Goss vs. State, 11/3/99]

Editor’s Note: This opinion is fact specific since there was no evidence or testimony that there was a reasonable basis to place Goss in the patrol car, such as officer safety or to prevent Goss from fleeing.

Founded suspicion for vehicle stop
In order to justify a stop of a vehicle, police officers must have a founded suspicion of criminal activity, the 2nd DCA said. Tampa police arrested Boyd Aycock after they observed his black Honda while conducting surveillance of a suspected cocaine dealer. A confidential informant had told officers that Timothy Bunk was going to sell three ounces of cocaine to the informant. Prior to the expected purchase, officers saw Bunk's car pull up to Aycock's car. Bunk got of his car and entered the Honda for about 30 seconds, before returning to his car and driving away. The officers could not see inside the black Honda, didn't see any exchange, and did not observe any suspicious activity by Aycock. Without conducting any further investigation, they stopped Aycock and found cocaine. Aycock admitted that he had purchased the cocaine from Bunk. Reversing the trial court's refusal to suppress the drug evidence, the DCA held that the confidential informant had provided no information on Aycock and that the police had no information about him until they stopped his car. Seeing Bunk enter Aycocks's car for a short period of time was not enough information to support a Terry stop of Aycock's vehicle, the DCA concluded.
Assistant Attorney General Susan D. Dunlevy represented the state on appeal.
[Aycock vs. State, 11/17/99]

Warrantless search
A trial court incorrectly denied defendant's motion to suppress evidence obtained during a warrantless search of her home, the 2nd DCA said. Shannon Davis filed a motion to suppress a coin pouch containing heroin that she voluntarily gave to a detective after he asked to search her house. Davis contended that the detective illegally detained her when he asked her to step outside, showed her his badge and gun, and instructed her to place her hands on the car. The DCA agreed, concluding that the detective's actions constituted a seizure because Davis did not voluntarily leave her residence and the situation did not involve exigent circumstances to justify the officer's request that she leave her home. The detective had ample time to obtain an arrest warrant prior to searching Davis' home, the DCA said.
Assistant Attorney General Wendy Buffington represented the state.
[Davis vs. State, 11/17/99]

Blood-alcohol test results
The Florida Administrative Code does not sufficiently provide for the proper collection, storage and transportation of blood samples taken pursuant to the implied consent law, the 2nd DCA said. Dean Townsend was charged by information with DUI manslaughter, vehicular homicide, and two counts of DUI with serious bodily injury. Townsend contended on appeal that the rules governing the transportation of blood samples don't offer the necessary standards to ensure the scientific reliability of the blood-alcohol test results. The DCA agreed, concluding that the administrative rule is inadequate and the State has to lay a traditional predicate for the admission of the blood-alcohol test results pursuant to 1992's Robertson v. State. The court joined the 1st DCA in certifying the question to the Florida Supreme Court.
Assistant Attorney General Susan D. Dunlevy represented the state on appeal.
[State vs. Townsend, 11/17/99]

Editor’s Note: The Florida Supreme Court heard Oral Arguments in State v. Miles, which is the case referred to in the opinion. The Court will issue its opinion in the next few months.

Search incident to lawful arrest
A trial court incorrectly suppressed a .32 caliber revolver retrieved during a vehicle search resulting from a lawful arrest, the 2nd DCA said. Serod Brooks' vehicle was stopped by a police officer for an expired tag. After running a check of Brooks' license, the officer discovered an outstanding warrant for his arrest. Brooks was ordered out of the vehicle, placed under arrest, handcuffed, and placed in the police car. The officer then searched Brooks' vehicle and found a handgun under the driver's seat. Brooks was charged with carrying a concealed firearm. At the suppression hearing Brooks argued that, because he had been handcuffed and placed in the back of the police cruiser and the door to his vehicle had been closed, there was no valid reason for the officer to search the vehicle incident to arrest. The DCA disagreed, citing the U.S. Supreme Court's 1981 holding in New York vs. Belton that when a police officer has made a lawful custodial arrest of an automobile occupant, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. "A defendant does not have to be in the vehicle at the time of the arrest and search for the search to be valid under Belton," the DCA said. "The fact that the appellee was seated in the police cruiser at the time of the search ... does not change this result."
Assistant Attorney General Erica M. Raffel represented the state on appeal.
[State vs. Brooks, 11/24/99]

3rd District Court of Appeal

Agency policies - sovereign immunity waiver
A government agency's policy manual by itself cannot establish liability or waive the agency's sovereign immunity, the 3rd DCA held. The court ruled that the failure of a Florida Highway Patrol dispatcher to send a state trooper to the scene of a broken-down truck, while required by agency procedures, did not make the agency legally liable for the deaths of two people in a subsequent accident. A jury found the agency 50 percent negligent, but the DCA said the trial court should have directed a verdict in the agency's favor because there was nothing to indicate its actions or inactions were operational in nature. The court said internal agency protocols do not have the same impact as statutes or administrative rules in establishing tort liability. "(W)e hold that a governmental agency's policy or procedure manual cannot, standing alone, create an independent duty to individual citizens. Sovereign immunity, therefore, cannot be waived by any 'duty' described in an agency's manual. Any waiver of sovereign immunity must come through legislative enactment," the DCA said.
[State of Florida, Department of Highway Patrol vs. Pollack, et al., 11/10/99]

Reasonable suspicion for investigatory stop
An officer who responds to a 3:00 a.m. call about suspicious activity and sees two vans with their rear doors open and three individuals walking away as he drives up has reasonable suspicion to perform an investigatory stop, the 3rd DCA said. Thomas Hernandez was arrested after an officer saw him attempt to close the van doors and walk away, shortly after the officer saw three other individuals walk away when he drove up. The officer directed Hernandez to stop, asked for identification, and arrested Hernandez after finding an outstanding DUI warrant for him. After arresting Hernandez, the officer found two stolen air-conditioning units, pry bars and other tools. The trial court denied Hernandez' motion to suppress, concluding that under the totality of the circumstances, the police officer had a founded suspicion that criminal activity was afoot and an investigatory stop was justified. "At three o'clock in the morning an officer could reasonably suspect that the white van was being burglarized, with the contents being transferred into the red van. This type of activity and parking arrangement might be unremarkable in the daytime, but they are unusual at 3:00 a.m. These facts added up to a reasonable suspicion to conduct an investigatory stop," the DCA held. DCA Judge Green issued a sharp dissent, saying the majority holding effectively sounds "a death knell" to the idea of consensual encounters between citizens and law enforcement. "A careful reading of the majority opinion leads only to one inescapable conclusion - the police in this case had reasonable suspicion to effectuate a Terry stop of the appellant solely because the appellant sought to evade the police at 3:00 in the morning. Until today, no Florida court has ever found time of day and/or flight, without more, to be sufficient to create reasonable suspicion," Judge Green wrote. "I believe that the majority opinion constitutes a serious departure from existing Florida law and if allowed to stand, will effectively nullify the notion of any consensual encounter between a citizen and the police under the fourth amendment in this district."
Assistant Attorney General M. Rebecca Springer represented the state on appeal.
[Hernandez vs. State, 11/24/99]

4th District Court of Appeal

Constructive possession
The presence of eight packages of cocaine taped to the inside of a car door panel, when no other contraband was found anywhere else in the car or on the defendants, is not legally sufficient to prove that two defendants knew of the drugs, the 4th DCA said. George Earle and Brian Green appealed their cocaine trafficking convictions. The DCA noted that the cocaine was concealed and had no fingerprints, the defendants had no tools to suggest they were utilizing a hidden compartment, the men did nothing suspicious, and they both offered plausible explanations of their activities. The DCA ordered that the defendants be discharged, holding that the state's evidence was legally insufficient to establish that each defendant knowingly was in constructive possession of the cocaine. "(I)f contraband is found in joint, rather than exclusive, possession of a defendant, then knowledge of the contraband's presence and the ability to control it will not be inferred from the accused's ownership of the premises or presence near the contraband, but must be established by independent proof," the DCA said.
Assistant Attorney General Simone P. Firley represented the state on appeal.
[Earle vs. State, 11/24/99]

EDITOR’S NOTE: This case stands for the proposition that you must have additional facts in order to successfully prosecute a constructive possession case.

Constructive possession - plain view
Just because a marijuana cigarette is in plain view in a car ashtray does not mean the driver necessarily knows of its illicit nature, the 4th DCA said. The court reversed a woman's conviction for marijuana possession based on a marijuana cigarette observed by officers during a traffic stop. The DCA affirmed the driver's conviction of possession of cocaine, but said the state presented insufficient evidence to support the marijuana conviction based on the woman being in constructive possession of the cigarette. The driver argued that the marijuana could have belonged to her passengers. The state suggested that contraband found in plain view is generally sufficient to show constructive possession, but "While objects found in plain view may show that the defendants knew that such objects were in their presence, they do not necessarily mean that the defendants knew of their illicit nature," the DCA said.
Assistant Attorney General Daniel P. Hyndman represented the state on appeal.
[Thomas vs. State, 11/3/99]

EDITOR’S NOTE: This second constructive possession case is a reminder that in order to prove constructive possession, the State must prove that the defendant has dominion and control over the contraband and knowledge of it illicit nature. The court opined that if the officer had testified that the marijuana cigarette was hot, it would be a “closer call as to whether she knew of its illicit nature.” The court did certify conflict.

5th District Court of Appeal

Search conducted by a private individual
An employee's Fourth Amendment rights were not violated when his employer conducted a search of his desk without consent and gave police evidence he found there indicating that the employee had been involved in an armed robbery, the 5th DCA said. Scott Olsen was charged with armed robbery with a firearm after his boss opened his desk to check the status of his work, discovered a weapon and called police. Olsen filed a motion to suppress the gun, arguing that the search of his desk violated his rights under the Fourth and Fourteenth Amendments. The trial court agreed and suppressed the firearm, but the DCA reversed. Noting the U.S. Supreme Court's 1984 holding in U.S. vs. Jacobsen, the DCA said a government search that is prompted by a preceding private search, and does not exceed the scope of the private search, does not violate the Fourth Amendment because at that point the subject no longer has an expectation of privacy. The DCA concluded that the employer acted on his own when he opened the desk to check the status of Olsen's work, and the police search did not exceed the employer's private search.
Assistant Attorney General Kellie A. Nielan represented the state on appeal.
[State v. Olsen, 11/12/99]

Probable cause to stop
Police had probable cause when they stopped and detained a known burglar who matched a description provided by victims of an attempted burglary and was present in the area soon after the crime, the 5th DCA said. Christopher Green was stopped and subsequently arrested by an officer who knew that Green had a restricted driver's license allowing him to operate a motor vehicle for business purposes only. The officer saw Green driving at a time and location inconsistent with business purposes. Green argued that the officer had no well-founded, articuable suspicion that he had committed a crime at the time of his detention, and therefore his consent to search his vehicle was involuntary. Green contended that the only reason he was stopped was because he is a known burglar. Affirming the trial court, the DCA noted that no evidence was presented showing that Green was going to or coming from a legitimate job at the time he was stopped. "It would have been a naïve officer who did not entertain an articuable suspicion of Green at the point of the initial detention," the DCA said.
Assistant Attorney General Patrick W. Krechowski represented the state on appeal.
[Green vs. State, 11/19/99]

Attorney General's Opinion

Disabled veterans' parking
In response to a request from the Executive Director of the Department of Veterans' Affairs, the Attorney General issued an advisory opinion (99-67, 11/3/99) stating in sum: "The removal of the reference in section 320.084(5), Florida Statutes, to a 'DV' motor vehicle license plate does not mean that veterans with Disabled Veteran license plates are now subject to a fee or penalty for parking in any public metered parking space, as section 316.1964, Florida Statutes, for example, continues to prohibit, except as provided therein, a state agency, county, municipality, or any agency thereof from exacting a fee for parking on public streets or highways or in any metered parking space from a driver of a vehicle displaying a 'DV' motor license plate if the vehicle is transporting the person with a disability to whom the plate was issued."
Opinion

Edited by:
Peter N. Stoumbelis
Assistant General Counsel

Approved by:
Enoch J. Whitney
General Counsel