RICHARD ALBERTY, APPELLANT/CROSS-APPELLEE,
v.
THE STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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Richard Alberty appeals the trial court's decision suppressing cocaine found at his arrest scene but admitting cocaine found at his residence. The court holds that officers lacked reasonable suspicion to stop Alberty's vehicle, making all evidence fruit of an illegal stop that must be suppressed.
The court holds that the officers lacked reasonable suspicion for a valid stop, as the observed activities—using a pay telephone, transporting a passenger, stopping at Burger King, and getting a car wash—are lawful and do not justify founded suspicion of criminal conduct. Consequently, all evidence derived from the unlawful stop, including Alberty's statements and the cocaine seized at his residence, were fruit of the poisonous tree and should have been suppressed.
[1] A stop is not justified by founded suspicion when the observed activities, such as using a pay telephone, driving a passenger, eating fast food, or getting a car wash, ar…
[2] Evidence seized following an unlawful stop is considered "fruit of the poisonous tree" and must be suppressed unless the connection between the illegality and the discove…
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Join FLexlaw to unlock all legal intelligence“Talking on a pay telephone, driving a passenger to his destination, eating at Burger King, and stopping for a car wash are not unlawful activities sufficient to justify a founded suspicion of criminal conduct.”
Establishes that ordinary, lawful activities cannot form the basis for reasonable suspicion to stop a vehicle
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Join FLexlaw to unlock all legal intelligenceDetective Orrett observed Henry Martin Rivera-DeJesus using a pay telephone and then talking with Alberty. Officers followed Alberty's car to an apart…
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PER CURIAM.
The trial court’s rulings granting Defendant Alberty’s motion to suppress evidence seized at the scene of the arrest and denying the motion to suppress evidence taken from his residence are the impetus behind these appeals. We find merit in Alberty’s appeal, but not in the state’s cross-appeal.
While conducting a surveillance regarding unrelated narcotics activities, Detective Orrett noticed an individual, Henry Martin Rivera-DeJesus, using a pay telephone at Kendall Drive and Southwest 117th Avenue. After using the telephone several times, Rivera walked over to Alberty’s car and spoke to Alberty and his passenger. When Rivera left, Detective Orrett and other officers followed Alberty’s car to an apartment complex where the passenger remained. Alberty continued to Burger King at Kendall Drive and S.W. 137th Avenue where he ordered food at the drive-thru window, he then drove to a gas station where he had his car washed, and finally went to his own residence. Although neither Alberty nor his residence was suspected of involvement in drug activity, officers watched for 20 minutes and finally observed Alberty leave his residence with a plastic shopping bag. When Alberty drove away, the officers followed him to the shopping mall where he met Rivera. At that point, the officers blocked Alberty’s car to prevent him from driving away. One of the officers saw a wrapped object inside a shopping bag lying at Rivera’s feet inside the car. The officer opened the wrapped packet and discovered a kilo of cocaine. The officers arrested Alberty and Rivera, and placed Alberty in handcuffs in the rear of a patrol car. After advising Alberty of his rights, the officers questioned Alberty and learned from Alberty that he had more cocaine at his residence. The officers took Alberty to his home, but his mother refused to consent to a search. Using Alberty’s statements, the officers obtained a search warrant for the residence. Their search disclosed 220 kilos of cocaine in the garage, as Alberty had indicated.
Alberty moved to suppress the cocaine found at the scene of the arrest and at his residence. The trial court granted Alberty’s motion in part, suppressing the cocaine found at the arrest scene as the fruit of an illegal stop, but allowing introduction of the cocaine seized at Alberty’s home. Al-berty entered a nolo contendere plea reserving his right to appeal the trial court’s denial of his motion to suppress the evidence seized at his residence.
On appeal, defendant Alberty asserts that the officers lacked sufficient grounds for a valid stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Consequently, he argues, their subsequent searches were tainted by the unlawful stop and the trial court should have suppressed all the evidence as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963). Alberty maintains that his exculpatory statements were not sufficiently attenuated to purge the initial taint.
We agree with Alberty’s position and find no merit in the state’s assertion that the officers’ observations could have furnished a lawful founded suspicion legitimizing the stop. Talking on a pay telephone, driving a passenger to his destination, eating at Burger King, and stopping for a car wash are not unlawful activities sufficient to justify a founded suspicion of criminal conduct. State v. Contraras, 512 So. 2d 339 (Fla. 3d DCA 1987). When the officers saw the cocaine in plain view, arrested defendants, and advised them of their rights, their activities were already tainted by the unlawful stop. See Norman v. State, 379 So. 2d 643 (Fla.1980); Bailey v. State, 319 So. 2d 22 (Fla.1975); United States v. Miller, 821 F. 2d 546 (11th Cir. 1987); United States v. Berry, 670 F. 2d 583 (5th Cir.1982) (en banc). We therefore hold that the trial court correctly suppressed the evidence seized at the scene of the arrest and should have suppressed the remainder of the evidence taken from Al-berty’s residence.
Affirmed in part; reversed in part; remanded with directions to discharge the defendant.
HUBBART and BASKIN, JJ., concur. BARKDULL, J., dissents.
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Hernan Perez v. State, 536 So. 2d 359 (Fla. 3d DCA 1988)…BASKIN, Judge (specially concurring). Unlike the majority, I find there was an absence of justification for an investigatory stop. The facts of this case closely approximate the circumstances contained in our recent opinion in Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988). Here, as there, while surveilling a shopping center at Kendall Drive and S.W. 117th Avenue, the officer saw a Latin male (not the defendant) use a pay phone several times, drive a car through the shopping center parking lot, and…
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Diaz v. State, 548 So. 2d 843 (Fla. 3d DCA 1989)…ate, 521 So. 2d 1094, 1095-96 (Fla.1988). The circumstances observed by the officers are, in our view, different from those involved in the decisions relied on by appellant, State v. Contraras, 512 So. 2d 339 (Fla.3d DCA 1987); and Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988). That issue is not dispositive here, however. Whether or not the detectives had a founded suspicion, once the detectives had activated their blue emergency lights, Diaz was obliged to stop. His failure to do so violated section 3…
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Brown v. State, 575 So. 2d 1360 (Fla. 3d DCA 1991)…cedes, that there was no probable cause to arrest defendant for unlawful assembly in the first instance. Defendant contends, therefore, that the cocaine rock is the “fruit of the poisonous tree” which must be suppressed, see, e.g., Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988), review denied, 548 So. 2d 663 (Fla.1989), and that his convictions must fail. We disagree. The cocaine rock was taken from one of the codefendants and was in the custody of the police officer. En route to the jail, defendant ind…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Norman v. State, 379 So. 2d 643 (Fla. 1980)
- Bailey v. State, 319 So. 2d 22 (Fla. 1975)
- United States v. Dudley Lee Berry, 670 F.2d 583 (5th Cir. 1982)
- United States v. Miller, 821 F.2d 546 (11th Cir. 1987)
- State v. Bienvenido Contraras, 512 So. 2d 339 (Fla. 3d DCA 1987)