Bradford v. StateBradford v. State
Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., for appellee.
WENTWORTH, Judge.
Appellant seeks review of a judgment of conviction and sentence by which he was convicted of battery on a police officer, resisting an officer without violence, and possession of cocaine and possession of paraphernalia, and was sentenced as an habitual offender to a total of 20 years imprisonment. We affirm, finding no reversible error in appellant‘s contentions that the court should have granted his motion to suppress, that the evidence was insufficient to sustain the conviction for resisting arrest without violence, that
The incident in question occurred at approximately 4:00 in the morning. An officer with the narcotics division of the Escambia County sheriff‘s department testified that he was patrolling in his car on the night in question in a part of town which had been plagued by “numerous” recent burglaries and which consisted largely of commercial buildings. He testified that he was driving through the main road in this section of town when he noticed appellant walking in the opposite direction along the sidewalk. He admitted that he observed no illegal activity by appellant and did not have any reason to believe appellant was about to or had committed a crime. The officer testified that when he saw appellant he decided to turn his car around and follow him because he was concerned about
The officer stopped his car and beckoned to appellant to come over to the police car. He testified that appellant hesitated at first and then complied. The officer stated that he did not recognize appellant and requested identification. Appellant produced a driver‘s license.
The officer summarized what happened next as follows: “At that point he was wearing a jacket which was baggy, and at that point for my own personal safety reasons I conducted just a quick pat-down search for any type of weapons.” He felt what he thought was a matchbox in appellant‘s pocket but admitted that he did not think the object was a weapon of any kind. He testified that matchboxes of a certain kind are often used to carry crack cocaine, so he inquired of appellant as to what was in his pocket. The officer then reached into appellant‘s pocket to remove the item, but appellant hit him in the chest with enough force to cause him to stumble backwards. At one point he had grasped the item long enough to identify it as a “redtop matchbox,” the particular kind he said was preferred by drug carriers.
Appellant turned and ran down the street. The officer ran to his vehicle to radio the police station and then chased appellant approximately 50 yards into the parking lot of a restaurant. The officer testified that appellant then “turned on me, and he grabbed me and tried to throw me to the ground and a fight ensued.” A second officer arrived at that time to find appellant face down on the pavement and held in place by the first officer. The second officer helped place appellant under arrest and put him in the back seat of the patrol car of a third officer.
According to the officer who transported appellant to the hospital, once they arrived at the hospital appellant had to remove his jacket to obtain medical treatment. As appellant removed his jacket he held closed the front left pocket of his jacket. Once he had removed the jacket, the officer looked into the pocket and found a crack pipe with cocaine residue on it.
Appellant was charged with battery on a law enforcement officer, resisting arrest with violence, possession of paraphernalia, and constructive possession of cocaine. Appellant filed a pretrial motion to suppress the paraphernalia and cocaine, and a motion to dismiss the charges of battery on a law enforcement officer and resisting arrest with violence. Both motions were denied, the court finding that the initial exchange between appellant and the police officer was a consensual encounter involving a permissible brief detainment. The court stated: “Assuming arguendo ... that the pat-down frisk was not one based on reasonable suspicion, that was attenuated by the defendant‘s own subsequent conduct by turning and battering the police officer.”
Appellant was subsequently convicted after a jury trial and a sentencing guidelines scoresheet was prepared showing a recommended sentence of 4 1/2 to 5 1/2 years’ imprisonment. The court noted that appellant had been convicted of two or more felonies in this state, that the felony for which appellant was to be sentenced was committed within five years of the date of conviction of the last prior felony, that appellant had not received a pardon for any offense, and that no conviction had been set aside in any postconviction proceeding. The court determined “that it‘s necessary in this instance for the protection of the public to sentence the defendant to the extended term as provided in this section as an habitual felony offender.”
On the suppression issue it is clear that appellant was initially called over by the officer and complied, supporting the trial court‘s finding that the initial encounter between appellant and the officer was consensual. However, the officer did not have reasonable suspicion to support his subsequent pat-down search of appellant based only on appellant‘s wearing a loose jacket. He also improperly reached into appellant‘s jacket pocket when he felt a hard rectangular object which he did not think was a weapon. See Warren v. State, 547 So.2d 324 (Fla. 5th DCA 1989). A motion to suppress directed solely to the
However, because the physical evidence admitted against appellant consisted of the crack pipe with cocaine residue which was found after appellant was chased, arrested, and taken to the hospital, we must determine whether the officer‘s actions in chasing appellant and arresting him for some offense other than possession of the matchbox were proper. If appellant was properly arrested, then the search at the hospital was a lawful search incident to arrest, and the motion to suppress directed to the crack pipe and residue was properly denied.
In determining whether appellant was lawfully arrested, a consideration of appellant‘s action in shoving the police officer during the attempted, improper initial search is necessary. The jury convicted appellant of battery on a law enforcement officer under
Alternatively, we note that appellant was originally charged by information with resisting an officer with violence to his person in violation of
Appellant cites to Brannen v. State, 453 So.2d 428 (Fla. 1st DCA 1984), for support for his argument that, in spite of
Appellant was ultimately convicted of resisting arrest without violence under
Even assuming that the jury based its conviction for resisting arrest without violence on the initial encounter, we conclude that it was proper. As noted above, the illegality of an underlying arrest is not alone sufficient as a defense to a charge of resisting arrest with force or violence. K.Y.E., supra. Appellant could therefore have been properly convicted of resisting arrest with violence under
With respect to sentencing requirements argued by appellant,
As to the written notice required by
We filed the notice of intent to seek habitual felon sanctions. I think the law requires you under the new section to order a PSI, and we‘re sticking with the career criminal thing. (e.s.)
THE COURT: In other words, because of his prior felony record you wish to enhance the penalties in this case, is that correct, the proper notice having been filed? (e.s.)
THE STATE: Yes sir.
It is clear that appellant did receive this record notice of the state‘s intentions at the end of the trial (27 days prior to his sentencing), giving ample time to prepare a submission at sentencing. Appellant does not reference the quoted portion of the record or reply to the state‘s contentions here. Although the decision in Crapps v. State, 483 So.2d 544 (Fla. 1st DCA 1986), appears to be that compliance with
Owens v. State, 560 So.2d 1260 (Fla. 1st DCA 1990), has found that
Affirmed.
ERVIN and MINER, JJ., concur.