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Court throws out seized marijuana----Case Dismissed
09/08/05
IN THE COUNTY COURT OF THE
NINETEENTH JUDCIAL
CIRCUIT, IN AND FOR ST. LUCIE
COUNTY, FLORIDA
STATE OF FLORIDA
Plaintiff,
v. Case
No.: 03-2726
Judge Yacucci
RICARDO McGEE,
Defendant.
__________________________/
ORDER ON DEFENDANT’S MOTION
TO SUPPRESS
THIS MATTER came
before the Court for evidentiary hearing on January 25, 2004 pursuant to the
defendant’s Motion to Suppress.
The Court makes
the following factual findings based upon the testimony presented.
1) On or about
June 27, 2003, Deputy Ron Seraphin, SLCSO, was on routine patrol at
approximately 5:00 p.m. when he received a radio dispatch indicating that
indicating that a person who may have a warrant for homicide was in a
vehicleat/or in the vicinity of BJ’s Lounge at the corner of Juanita Avenue and
North 25th Street in Fort Pierce, St. Lucie County, Florida.
2) A
description of a 4-door Cadillac was also given as the vehicle in which the
alleged unidentified suspect would be located.
3) When the
deputy arrived, other law enforcement officers were already on the scene and
most likely had the eventual suspect, Derrick Smith, in custody. (Charges
against Smith were apparently later dropped.)
4) Deputy
Seraphin witnessed the defendant, Ricardo McGee, walking away from the vehicle
and ordered him to stop and escorted him back. Deputy Seraphin did not witness
the Defendant ever get out of the vehicle.
5) Deputy
Seraphin ordered the Defendant to produce identification and testified that
when the Defendant reached into his pocket to produce identification a small
bag of what he believed to be marijuana fell to the ground.
THE COURT FINDS
that the Defendant met its initial burden of pleading and establishing a prima
facie showing that this was a warrantless, invalid search.
The burden then
shifted to the State to produce clear and convincing evidence that the
warrantless search was legal.
THE COURT FINDS
that no probable cause existed for the stop and detention of the Defendant.
THE COURT
FURTHER FINDS that there existed no articulable facts sufficient to create
a reasonable suspicion based on Deputy Seraphin’s knowledge and experience that
the Defendant was then committing, had committed, or was about to commit a
crime.
Further, this was
not a consensual encounter as the Defendant was not free to leave and was not
free to disobey the Deputy’s orders to stop, return to the vehicle and produce
identification.
It should be noted
that Deputy Seraphin did nothing intentionally wrong and had the other officer
not already been present with the true suspect, and/or if the Defendant was
seen in the vehicle by the Deputy, the outcome may have been different.
However, it is
clear that the mere presence of the Defendant in the vicinity of the vehicle in
this instance did not justify the stop and eventual seizure. J.P., a Child,
v. State, 855 So.2d 1262, (Fla. 4th DCA, 2003); Harris v.
State, 790 So.2d 1046 (Fla. 5th DCA, 2001); Belsky v. State,
831 So.2d 803 (Fla. 4th DCA, 2002); Ippolito v. State, 789
So.2d 423 (Fla. 4th DCA, 2001).
IT IS
THEREFORE,
ORDERED AND
ADJUDGED that the Defendant’s Motion to Suppress is hereby GRANTED.
DONE AND ORDERED
this 4th day of February, 2004, in Fort Pierce, St. Lucie
County, Florida.
/s/ Philip J. Yacucci, Jr.
Philip J. Yacucci, Jr.
County Court Judge
cc: Jonathan Jay Kirschner, Esq.
Jennifer Pemberton, Assistant State Attorney
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