STATE OF FLORIDA, APPELLANT,
v.
KINSEY LEE MAE, APPELLEE
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The State appeals the trial court's suppression order regarding evidence obtained from a traffic stop. The appellate court affirms, holding that the State failed to preserve for appeal the arguments it raised on appeal because they were not presented to the trial court.
The court affirmed the suppression order because the State failed to preserve the issues raised on appeal. While the court agreed that the officer lacked reasonable suspicion to stop the vehicle based on the robbery, the State's new arguments regarding Mae's standing and the traffic stop under Whren were not presented to the trial court and therefore could not be raised for the first time on appeal.
[1] A state may not appeal a pretrial order unless a prejudicial error is alleged and properly preserved, or if not preserved, constitutes fundamental error.
[2] For an issue to be preserved for appeal, it must be timely raised before and ruled on by the trial court, and be sufficiently precise to fairly apprise the trial court of…
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Join FLexlaw to unlock all legal intelligence“To be 'preserved,' 'an issue, legal argument, or objection to evidence' must be 'timely raised before, and ruled on by, the trial court.' The issue or argument must be 'sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.'”
Establishes the legal standard for preserving issues for appeal under Florida law.
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Join FLexlaw to unlock all legal intelligenceTwo men robbed a woman in a grocery store parking lot in Sarasota on September 28, 1995 at 6:30 p.m. The victim described her attacker as a young Afri…
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ALTENBERND, Acting Chief Judge.
The State appeals the trial court’s order granting Kinsey Lee Mae’s motion to sup press evidence.1 We affirm this pretrial order because the State failed to preserve for appeal the issue presented in its brief, as required by section 924.051(3), Florida Statutes (Supp.1996).
On September 28, 1995, two men robbed a woman in the parking lot of a grocery store in south Sarasota at 6:30 p.m. A Sarasota police officer responded to the robbery call and obtained a description of the perpetrators from the victim and a wit ness to the incident. The victim described her face-to-face attacker as a young African-American man with a thin build. He was wearing a black baseball hat, a black and red basketball jersey, and black and red basketball shorts. She was unable to describe the other perpetrator because he attacked her from behind. A witness described the other man running from the scene as a young African-American man with black hair, wearing black shorts, a white T-shirt, and tennis shoes. The suspects left the parking lot on foot.
The officer who had talked to the victim and the witness drove immediately to the northwest section of Sarasota to search for the suspects, apparently because that neighborhood is predominantly African-American. At 7:15 p.m., approximately 45 minutes after the robbery, he saw a vehicle containing two young African-American males. The vehicle’s windows were heavily tinted and only the window on the passenger’s side was open. The officer followed the vehicle, and when the driver turned right without using a turn signal, he pulled the vehicle over. As a result of this stop, the passenger'in the ear eventually admitted his involvement in the robbery and also implicated Mr. Mae. The State charged both men with the robbery. Mr. Mae filed a motion to suppress challenging the . legality of the stop, as compared to the legality of any subsequent search or seizure. His motion sought to suppress statements that he made, as well as statements made by the codefendant.
The trial court ruled that the officer did not have reasonable suspicion to stop this vehicle based on the robbery, and granted the motion. In the trial court, the State did not argue that the stop was a valid traffic stop or that Mr. Mae had no stand ing to suppress the statements of his codefendant.
We affirm the trial court’s decision that the officer did not have reasonable suspicion to stop this car based on the robbery. The only plausible connection be tween the men stopped and thé robbery is the officer’s observation that one man was wearing a white T-shirt and the other a black and red basketball jersey. The fact that two African-American men would be driving together in this neighborhood is certainly not suspicious. A white T-shirt is an extremely common item of clothing. At the time of this stop, Michael Jordan of the Chicago Bulls was one of the most popular basketball players in the country and his black and red jerseys were prized by basketball fans in all neighborhoods. Given the time that had elapsed since the robbery, along with the distance from the scene of the crime, the items of apparel on the two men in the car pulled over by the officer could not justify a Terry2 stop for a robbery that was committed by two men who left on foot.
On appeal, the State argues that Mr. Mae has no standing to seek suppression of the statements made by his codefendant as a result of this stop. No such argument was ever presented to the trial court. The State also argues that the stop was a valid traffic stop under the guidelines in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
During his direct testimony at the suppression hearing, the arresting officer never suggested that he stopped this vehicle for an improper turn. He testified that he advised his department over the radio that he was “going to make a traffic stop which I believed to be in reference to the strong-arm robbery.” On cross-examination, he was questioned about a reference to a right-hand turn in the arrest report. The officer testified that the car made a right-hand turn and “there were other vehicles who were affected on the roadway.” In answer to a follow-up question, he admitted: “I really was concentrated on him, I didn’t pay attention to the other traffic. I didn’t see him run anyone off the road.” No traffic citation was issued in this case.
Although the State could have reliéd on this weak evidence to argue that the stop was a valid traffic stop for violation of section 316.155, Florida Statutes (1995), it chose not to make that argument in the trial court. See State v. Everett, 671 So. 2d 161 (Fla. 2d DCA 1996) (traffic stop of defendant was legally authorized and not pretextual where officer observed defendant make a right-hand turn without signaling in violation of section 316.155); cf. State v. Riley, 638 So. 2d 507 (Fla.1994) (if no other vehicle is affected by a turn from the highway, then a signal is not required by section 316.155).
From our record, it is impossible to tell whether this was an unintentional omission on the part of the assistant state attorney or merely a tactical decision that the evidence concerning the traffic stop was too weak to argue in good faith.
This appeal is governed by the Criminal Appeal Reform Act. See ch. 96-248, Laws of Fla. Under the provisions of that act, an appeal may not be taken from an order “unless a prejudicial error is alleged and is properly preserved, or if not properly preserved, would constitute fundamental error.” §' 924.051(3), Fla. Stat. (Supp.1996). Fundamental error is not an issue in this case.
To be “preserved,” “an issue, legal argument, or objection to evidence” must be “timely raised before, and ruled on by, the trial court.” The issue or argument must be “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor;” § 924.051(l)(b), Fla. Stat. (Supp.1996). In this ease, the State did not raise either the issue of standing or the Whren issue before .the trial court. Its argument was not sufficiently precise to fairly apprise the trial court of either of these issues. Accordingly, this court cannot reverse the order on appeal.
Affirmed.
WHATLEY and NORTHCUTT, JJ., concur. . The case against Mr. Mae has not been dismissed. This is a pretrial appeal pursuant to Florida Rule of Criminal Procedure 9.140(c)(1)(B).
. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999)…ror. To be preserved, an issue must be timely raised and ruled on by the trial court. The issue must be sufficiently precise that it fairly apprises the trial court of the relief sought and the grounds for the objection. 924.051(l)(b); State v. Mae, 706 So. 2d 350 (Fla. 2d DCA 1998). See also State v. Baccari, 730 So. 2d 806 (Fla. 4th DCA 1999) (alleged error in imposing downward departure sentence could not be raised on appeal where the trial court listed four reasons for departure but the State failed to ob…
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State v. Taylor, 826 So. 2d 399 (Fla. 3d DCA 2002)…ecise that it fairly apprized the trial court of the relief sought and the grounds therefore.” An argument against suppression may not be presented for the first time on appeal. Cornuz; State v. Klein, 736 So. 2d 9 (Fla. 4th DCA 1998); State v. Mae, 706 So. 2d 350 (Fla. 2d DCA 1998). The state argues that preservation should not be an issue, because the testimony demonstrates that the items were obviously in plain view. The state cites to page 66 of the record to show that the trial court was aware of the pl…
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S.A.S. v. State, 884 So. 2d 1167 (Fla. 2d DCA 2004)…he Fifth District’s reasoning, explaining that subsections (1) and (2) of section 316.155 must be read in pari materia to require a signal only when another vehicle “is affected by a turn from the highway.” Id. (emphasis added); accord State v. Mae, 706 So. 2d 350 (Fla. 2d DCA 1998); Frierson v. State, 851 So. 2d 293 (Fla. 4th DCA 2003); see also Crooks v. State, 710 So. 2d 1041, 1043 (Fla. 2d DCA 1998) (comparing section 316.155 with the statute requiring vehicles to stay within their proper lanes and interp…
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)
- Whren v. United States, 517 U.S. 806 (U.S. 1996)
- State v. Riley, 638 So. 2d 507 (Fla. 1994)
- State v. Everett, 671 So. 2d 161 (Fla. 2d DCA 1996)