So, you’re probably wondering where Orlando cops find all these drugs to make their drug arrest quotas, right? Ok, you’ve come to the right place. At the risk of sounding too obvious, drugs are most often found either “on” a person, or “in” a person’s car. Of course, the number three spot is a home, but home searches are tougher to justify and a bit less common. Let’s take a look at a basic, everyday “suspicious activity” case to figure out how such cases are won. Because these situations are fact intensive, we’re going to review more of the facts here than usual.
The case is Thornton v. State, 80 So 3d. 1141 (Fla. 4th DCA 2012). Thornton’s criminal defense attorney did the right thing, and filed a motion to suppress, but it was denied by a trial court–and thus he was later convicted of possession with intent to sell, manufacture or deliver cocaine within 1000 feet of a park, community center or recreational facility and resisting an officer without violence. All of these charges were thrown out by the appeals court because the Defendant was subjected to a detention that not supported by reasonable suspicion. To understand why, let’s look at the facts.
Detective George McLain of the Stuart Police Department testified that he received an email regarding “suspicious activity” near a strip mall barber shop that was not yet open for business. The person who sent the email wished to remain anonymous. The email reported that males, some with dreadlocks, were “congregating” at the barber shop. So, McLain and his partner, Detective Ortado, drove over to the strip mall that afternoon and observed Defendant Thornton (who had dreadlocks) and ten to fifteen other males standing near the barber shop. Nothing wrong with that, right? Well, as soon as the detectives exited their vehicle, the men scrambled into the barber shop. Still, nothing wrong with that–after all, who wants to hang with the cops?
The Defendant didn’t follow anyone into the barber shop, he was just chillin’ nearby in his car. McLain approached the Defendant, as he sat in a parked car, doors closed and windows down. As the detective approached his car, the Defendant looked at the center console, and then looked up at the detective. Nothing wrong with that, right? But then, McLain watched as the console lid opened and closed, but could not see Defendant’s hands. McLain asked the Defendant what was up with the console lid, but the Defendant denied going into the console. “McLain testified that he asked Defendant to exit the vehicle because he was concerned for officer safety and concerned that there was something “dangerous” in the console.” Id. The Detective then noticed the Defendant “cup” something in his hand and put it in his right pocket, but denied to the officer ever placing anything in his pocket. As can be expected with sudden police encounters, the Detective noted that the Defendant appeared “nervous and fidgety and was breathing rapidly”. Id. “McLain did not observe anything that appeared to be a weapon on Defendant, but told Defendant that he was going to conduct a pat down. When he attempted to do so, Defendant swatted his hand away. Defendant was then arrested. During the subsequent search, crack cocaine was discovered on Defendant, as well as $2000 in cash.” Id.
HERE’S THIS WEEK’S CLASSIC BAD STOP BREAKDOWN:
FIRST: Cop orders Thornton out of the car. Bad idea. Why? When the government orders a citizen out of a car, the government better have a good reason for doing so. A “legal” reason , like some sort of suspicion of criminal activity. But here, there was none. Strike number one.
SECOND: Look at how the cops got to the barber shop in the first place–by an anonymous tip. So, let’s look at this tip a little further. Did the tip contain any sort of indication that criminal activity was afoot? No, it didn’t. The tip merely provided info regarding innocent behavior. Strike number two. (the court cites Butts v. State, 644 So.2d 605, 606 (Fla. 1st DCA 1994) as an example, in that case a “tip failed to provide reasonable suspicion where it ” ‘offered nothing more than innocent details of identification that could have been provided by any pilgrim on the roadway’ “.
THIRD: Thornton’s nervous activity around his console, and lying about what he was doing with the console is not a crime. The court reasons: “Defendant’s conduct of reaching into the console, appearing “nervous,” and lying to the detective similarly did not provide reasonable suspicion for the detention. See Johnson v. State, 640 So.2d 226, 227 (Fla. 5th DCA 1994) (officer lacked reasonable suspicion based on defendant telling a lie where, in the late evening, defendant was standing at trunk of car trying to conceal something because lying “is not a crime”)” Strike number three.