JAMES BROWN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Brown appeals his convictions for tampering with physical evidence and possession of cocaine, and his habitual offender sentence. The court affirms, holding that even though the initial arrest may have lacked probable cause, Brown's independent act of taking cocaine from police custody while in custody constituted a separate, untainted offense.
The court affirms Brown's convictions, holding that the cocaine is not suppressible as fruit of the poisonous tree because Brown's independent act of taking the evidence from police custody constituted a separate offense untainted by any illegality in the arrest. The court also affirms the habitual offender sentence, finding the State provided both written and oral notice over sixty days before sentencing.
[1] Evidence obtained from a defendant's independent criminal act, even if occurring after an illegal arrest, is not tainted by the illegality of the arrest.
[2] A defendant's independent act of tampering with evidence, taken after the evidence has been secured by law enforcement, does not require suppression of that evidence.
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Join FLexlaw to unlock all legal intelligence“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 independently and of his own volition picked up the cocaine rock and attempted to conceal it. As to defendant, there was no exploitation of a prior illegality and the recovery of the cocaine was not tainted by the illegality of the arrest.”
Establishes the core holding that Brown's independent criminal act was not tainted by the alleged illegality of the initial arrest.
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Join FLexlaw to unlock all legal intelligenceBrown and two codefendants were arrested for unlawful assembly. Crack cocaine found on one codefendant was secured in a bag attached to the officer's …
The full statement of facts, procedural history, and disposition for this case are member content.
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[*1361] PER CURIAM.
Defendant James Brown appeals his conviction for tampering with physical evidence and possession of cocaine, and his sentence as a habitual offender. We affirm.
Defendant and two codefendants were arrested for unlawful assembly. They were searched incident to the arrest and insofar as pertinent here, one rock of crack cocaine was found on the person of one of the codefendants. The arresting officer secured the small bag containing the cocaine rock by attaching it to the officer’s clipboard. The officer placed the clipboard on the dash of the police car. He placed the defendant and codefendants in the police car and began traveling to the jail. There was no cage separating the back seat from the front seat of the police car and the prisoners, although partly restrained, had some ability to move within the confines of the car. En route the officer stopped at the scene of an accident and temporarily exited the police car. While outside the police car, he observed the defendant take the cocaine rock from the clipboard. At the station, the cocaine rock was found on the floor where defendant had been sitting. Defendant was charged with tampering with physical evidence and possession of cocaine. Defendant was convicted.
Defendant argues, and the State concedes, 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 independently and of his own volition picked up the cocaine rock and attempted to conceal it. As to defendant, there was no exploitation of a prior illegality and the recovery of the cocaine was not tainted by the illegality of the arrest. See, e.g., Delap v. State, 440 So. 2d 1242, 1249-50 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984); State v. Mosier, 392 So. 2d 602, 604-05 (Fla. 3d DCA 1981), appeal after remand, 415 So. 2d 771 (Fla. 3d DCA 1982). Once the officer had taken the evidence into his custody, the defendant was not entitled to remove it — whether or not the underlying seizure was illegal.*
Defendant also contends that the State failed to give written notice of its intention to seek a sentence under the habitual offender statute. See § 775.084(3)(b), Fla. Stat. (1989). To the contrary, the record reflects that the State gave both written and oral notice over sixty days prior to imposition of sentence.
Affirmed.
*
The charges against defendant arose exclusively out of his taking of the cocaine while in the police car.
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Tavares Burks v. State, 697 So. 2d 529 (Fla. 2d DCA 1997)…PER CURIAM. Affirmed. See Brown v. State, 575 So. 2d 1360 (Fla. 3d DCA 1991). CAMPBELL, A.C.J., and PATTERSON and QUINCE, JJ., concur.…
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State v. Darrel Jennings, 647 So. 2d 294 (Fla. 3d DCA 1994)…der arrest because the officer had not even reached the defendant before he put the alleged cocaine rocks in his mouth. Jones v. State, 590 So. 2d 982 (Fla. 1st DCA 1991); Thomas v. State, 581 So. 2d 993 (Fla. 2d DCA 1991); see also, Brown v. State, 575 So. 2d 1360 (Fla.3d DCA 1991) (“Once the officer had taken the evidence into his custody, the defendant was not entitled to remove it.”). Additionally, shouting “police,” without more, was insufficient to put the defendant on notice that an investigation was ab…
Authorities Cited
- Delap v. State, 440 So. 2d 1242 (Fla. 1983)
- Evans v. Mississippi, 467 U.S. 1264 (U.S. 1984)
- Sanson v. United States, 467 U.S. 1264 (U.S. 1984)
- State v. Mosier, 392 So. 2d 602 (Fla. 3d DCA 1981)
- Mosier v. State, 415 So. 2d 771 (Fla. 3d DCA 1982)
- Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988)