The Florida Supreme Court is in summer recess. The next regular opinions are expected 26 August 2010.
In T.T.N. v. STATE, No. 2D09-856 (Fla. 2d DCA Jul. 23, 2010), following a traffic stop by St. Petersburg police officers, the driver fled on foot. The remaining passengers drove away in the vehicle. The driver was apprehended and arrested, and the officers - who had obtained the registered owner's address based on the vehicle's tag - drove to the vehicle owner's residence in Gulfport, which was outside the jurisdiction of the St. Petersburg Police Department. One of the officers testified that when he arrived at the Gulfport residence in a marked police car, three individuals were standing by the vehicle. When they saw the officer pull up to the residence, two of the individuals ran inside the house while the third, the Defendant, who was one of the passengers of the vehicle involved in the traffic stop, ran to the side of the house. The officer testified that upon exiting his vehicle, he identified himself as a police officer and advised the three individuals to stop. He followed the Defendant to the side of the house and located the Defendant hiding behind a bush. The Defendant stood up and dropped a green M&M tube on the ground. The officer placed him in custody and retrieved the tube. The contents of the tube were later positively identified as cocaine.
The DCA held that the trial court erred in refusing to suppress the evidence as a product of an unlawful stop. The initial involvement of the officers from the St. Petersburg Police Department arose from an attempted traffic stop. Once the driver was arrested, there was no new crime or incident to investigate. The officers were outside their jurisdiction and had no authority to initiate an investigation at the registered address of the vehicle in Gulfport.
Because the officers' investigation of the traffic infraction and the fleeing driver concluded with the driver's arrest, there was no basis for the arresting officer to stop the Defendant. In order to justify an investigatory stop, a police officer must have a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime. There was no reasonable indication that the Defendant was involved or about to be involved in a crime at the time the St. Petersburg police officers arrived at the Gulfport address, and the Defendant's attempt to run away from the arresting officer was not sufficient to justify an investigatory stop. Because the officer had no reasonable suspicion to justify a stop, and the tube was abandoned after the Defendant submitted to the officer's authority, the DCA concluded that the nexus between the illegal stop and the abandonment warranted suppression of the evidence.
In DERY v. STATE, No. 2D08-3869 (Fla. 2d DCA Jul. 21, 2010), the Defendant was convicted of first-degree murder and sentenced to life imprisonment. The evidence against him was primarily, if not exclusively, circumstantial. The forensic science skills of the lead detective, a medical examiner, and a DNA expert were major features of the State's case. A juror, who did not reveal that she had any background in forensic sciences during voir dire, appeared simply to be a bus driver in her mid-fifties. She admitted during the second day of trial that she had taken a seventeen-week course in forensic science over the internet and that her instructor had been the detective who was the lead detective in this case. The Defendant moved to dismiss the juror and substitute an alternate. Defense counsel represented that he would, if necessary, have used a peremptory challenge to remove that juror if she had properly revealed her training during voir dire.
The DCA held that it is well established that a trial court has the discretion to remove a juror and use an acceptable alternate juror when the court determines mid-trial that the juror was not candid during voir dire. Here, because the State's case heavily relied on forensic science, a juror's education and knowledge about it was relevant and material to his or her service on the jury. The challenged juror had specialized knowledge about DNA from the course she took in forensic science. Instead of admitting that she had taken a course on the subject, the juror concealed her knowledge. Her failure to disclose this knowledge could not be attributed to a lack of diligence on the Defendant's part because the State expressly asked the jury panel whether any of them had any specific knowledge about DNA; the Defendant had no reason to inquire further after the juror failed to indicate her training in the subject. As a result, the Defendant was prevented from exercising a peremptory or for-cause challenge to strike her from the jury during voir dire and, thus, was prejudiced by her nondisclosure. Therefore the trial court abused its discretion when it refused to replace the juror with an alternate. The DCA reversed the conviction and sentence and remanded for a new trial.
In STATE v. JOHNSON, Nos. 2D09-3768 and 09-3770 (Fla. 2d DCA Jul. 23, 2010), a detective received a complaint that the Defendant and her boyfriend were selling oxycodone from their residence. The detective sent a fax to local pharmacies requesting the prescription profiles for the Defendant and her boyfriend. A pharmacy provided the detective with the Defendant's prescription profile, which included the date the prescription was written, the name of the drug prescribed, and the name of the prescribing doctor. The profile indicated that the Defendant had received a substantial amount of oxycodone within a thirty-day period from the same doctor. The doctor, however, told the detective that he did not write the prescriptions. The detective then obtained the Defendant's prescriptions from the pharmacy. The Defendant contended that the detective had to obtain a subpoena before seizing her prescription records. The State responded that the prescriptions were "completely and totally fake, and therefore it's the State's position that the defendant has no expectation of privacy in these records at all." The trial court entered an order granting the motion to suppress on the basis that § 456.057 Florida Statutes applies to pharmacies which are subject to the confidentiality and disclosure requirements in § 456.057(7). The State appealed.
The DCA held that § 456.057(7) specifically excludes pharmacists from the definition of "health care practitioner," although they may be regulated as maintainers of records under the statute. Therefore, the trial court erred in suppressing the Defendant's prescription records based on § 456.057(7). However the trial court did not address the issue of whether the Defendant had standing to challenge the search and seizure of her prescription records. Therefore the DCA reversed the order suppressing the evidence and remanded the case for further proceedings. The DCA held that in remand, if the Defendant pursues her motion to suppress, the trial court should make an express ruling on the issue of whether the Defendant has a reasonable expectation of privacy in the prescriptions. [Editor's note: A pharmacy may be a "covered entity" under HIPAA, see 45 C.F.R. 160.103. If so, a pharmacist would be subject to the federal restrictions of 45 C.F.R. §§ 164.502(a) and 164.508(a). In addition the Florida constitutional privacy protections may have application, see Art I, § 23, Fla. Const.; Winfield v. Division of Pari-Mutuel Wagering, Department of Business Regulation, 477 So. 2d 544, 548 (Fla. 1985); Tallahassee Memorial Regional Medical Center, Inc. v. Petersen, 920 So. 2d 75, 80 (Fla. 1st DCA 2006); Hunter v. State, 639 So. 2d 72, 74 (Fla. 5th DCA 1994), rev. denied, 649 So. 2d 233 (Fla. 1994); State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001).]
In FERGUSON v. STATE, Nos. 2D09-276 and 2D09-326 (Fla. 2d DCA Jul. 21, 2010), the Defendant was observed by a police officer who stopped the vehicle he was driving. The Defendant did not explain his behavior to the satisfaction of the officer, who arrested him for loitering and prowling. The officer searched the Defendant incident to his arrest and found an empty gun holster on his belt; a subsequent search of his vehicle revealed a pistol, cannabis, and paraphernalia. The Defendant was on probation; he moved to suppress the results of the search on both the new substantive case and the violation of probation. The DCA held that on these facts, even if the officer properly detained the Defendant, the officer did not have probable cause to arrest the Defendant for loitering and prowling and to then search him. Therefore the trial court should have granted the Defendant's motion to suppress the evidence obtained and statements made as a result of the arrest.
In CUMMINGS v. STATE, No. 2D09-346 (Fla. 2d DCA Jul. 21, 2010), the Defendant was originally charged with burglary of an unoccupied dwelling and two counts of grand theft. The charges were reduced pursuant to a plea agreement, and a restitution hearing was held after the Defendant had entered the plea. The trial court improperly required payment of restitution for the loss of a victim's vehicle, because the State failed to establish a nexus between the offense and the loss of the vehicle.
