       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                LERONCE JALINE MEELIQUE CHEEKS,
                            Appellee.

                             No. 4D19-1408

                             [April 15, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Roger    B.    Colton,    Judge;   L.T.    Case    No.
502018CF011357AXXXMB.

   Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for appellant.

   Carey Haughwout, Public Defender, and Scott Thomas Pribble,
Assistant Public Defender, West Palm Beach, for appellee.

WARNER, J.

    The State of Florida appeals from an order dismissing sexual battery
charges against Leronce Cheeks for violation of speedy trial rules. The
trial court found that Cheeks was functionally arrested on the day of the
incident, although he was not formally arrested until a year later. The
court erred, however, in its application of the four-part test of Melton v.
State, 75 So. 2d 291 (Fla. 1954), which determines when an arrest occurs
for purposes of speedy trial. Because the officers did not have an intent
or a purpose to arrest Cheeks, did not communicate to him that he was
arrested, and the evidence did not show that Cheeks thought he was
arrested, three of the elements of that test were not met. We thus reverse.

    On November 29, 2018, the State charged Cheeks with sexual battery
of a victim which occurred on September 30, 2017. He was then formally
arrested on the charge. Cheeks moved for discharge, alleging that for
purposes of speedy trial, he was arrested when he was detained on
September 30, 2017. He contended that, pursuant to Florida Rule of
Criminal Procedure 3.191, he was entitled to immediate discharge because
the State failed to charge him before expiration of the 175 day speedy trial
period. He alleged that his detention on the day of the incident constituted
an arrest for speedy trial purposes, relying on various body-cam videos
and videos from his interrogation at the police station.

    The court conducted a hearing on the motion. The evidence consisted
of a police body-cam video from the date of the incident, a video recording
of Cheeks’ interrogation, and testimony of the lead detective.

   On September 30, 2017, a woman jogging in the early morning in West
Palm Beach was approached from behind by a man who grabbed her in
the groin area and digitally penetrated her vagina. The woman ran to her
husband who was waiting in their vehicle a few blocks away and told him
what happened. She then called 911. Shortly thereafter, she and her
husband found the man and followed him in their vehicle. The woman’s
husband jumped out of his vehicle, grabbed the man (Cheeks), and held
him down until police arrived. As found by the trial court in its order
granting discharge:

      Police officers placed Mr. Cheek’s (sic) in handcuffs, and
      commanded him to standup as he gasped for air. At least
      three officers immediately escorted him to a police car. (See
      body cam footage.)

      They physically searched Mr. Cheeks’ (sic) by digging through
      his pockets, before putting him handcuffed in the police car.
      The officers found marijuana in Mr. Cheeks’ pocket. They
      questioned him as he sat handcuffed in the back of the police
      car. He answered, and provided his name and address. He
      also provided his statement about what had just happened.
      He also said he had dropped his keys and cell phone while
      being chased, hit by a car, and tackled by a stranger. His
      shirt was also removed as the stranger wrestled him on the
      concrete. He described his dropped items and his car.

   Video shows that Cheeks sat in the police car while police searched for
and located his cell phone, shirt, keys and parked car. They towed his car
to police headquarters.

    When they arrived at the police station, Cheeks was placed in a holding
cell, Police took his belt, money, and shoes. He remained there for four
hours until two police detectives began to interview him. He was read his
Miranda warnings. Cheeks asked the detectives if he was going to have to
sit in the police station all day or whether police would explain things to

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him at that time. The first detective told him “No, no, no, no, no, no, we’re
gonna talk and then, when we’re done, we’ll get ya outta here.” Cheeks
then described the incident that morning, stating he simply bumped into
the victim. The second detective asked him if he would consent to provide
DNA. He asked, “[W]ould I have to have a lawyer for that[?]” The detectives
responded that he could consent. He signed the DNA consent form and
swabs were taken.

    At the end of the interview, Cheeks asked “What—what does happen
here, like, you know for the like, what happens here?” The first detective
responded, “We have to investigate. We have to investigate it, you know,
we have to make sure that all the evidence matches everything that was
said[,] and you know, it’s just a matter of crossing all the t’s and dotting
all the i’s. We just gotta make sure everything matches up.” Cheeks then
asked, “So I’m saying like what happens to me in terms of like what, am I
going to jail or something? And then we have to like wait for a trial[?]” The
detective responded, “[W]e’re still trying to figure this out . . . obviously we
don’t wanna put somebody in jail for something that they may not have
done, we don’t want somebody in jail if they’re, they’re innocent, right? So,
no, we haven’t decided on that.”

    Cheeks then asked “[W]hat happens to my car, and my phone, and
everything?” At that point, the officers left the room. When they returned,
another officer was present, and that officer also interrogated Cheeks
regarding the incident. Cheeks asked him, “[H]ey, I want to know if there’s
like a timetable on me being able to go? The officer said he would ask the
detective who had been speaking to Cheeks before; however, he did not
answer the question. At the end of the interview, Cheeks again questioned
the officer about when he could leave, and the officer thought it would take
less than two hours to finish.

   There was a break, and one of the detectives and the officer returned
and asked for the password to Cheeks’ phone to verify that it was his.
Cheeks showed them the code. Cheeks asked about his car and cell
phone, and the detectives told him his vehicle would be released to him,
but they would keep his cell phone until the investigation was through.
They returned his belt, his watch and his car. Then Cheeks left. Twice he
returned to the station to obtain his phone, which was finally released in
February 2019. He was formally arrested on November 29, 2018, more
than a year after the incident.

   The first detective who interviewed Cheeks testified at the hearing on
the motion for discharge. He explained that, typically, a sexual battery
investigation would not be done on the side of the road. The detective

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would bring potential suspects to the police station to interview them in
most cases. Suspects in police vehicles being taken to the police station
were, as a matter of policy, handcuffed for officer safety. With respect to
the investigation of Cheeks, the detective did not believe he had sufficient
probable cause to arrest Cheeks on the date of the incident, and Cheeks
was never told that he was going to be arrested. The detective was at the
beginning of his investigation and still had a lot of work to do. He needed
a DNA test, and he wanted to look for video cameras in the neighborhoods
to try to find witnesses. He testified that when someone is arrested, they
are booked into the county jail, and he explained that the county jail is at
the Palm Beach County Sheriff’s Office, not the West Palm Beach Police
Station. Cheeks had not been taken to PBSO that day.

    After taking the matter under advisement, the trial court granted the
motion for discharge. In its order, the court addressed the issue of whether
Cheeks was arrested on the day of the incident. Pursuant to rule 3.191,
speedy trial is triggered when the person is arrested, and the defendant is
entitled to discharge if the State fails to file charges prior to the expiration
of the speedy trial period. State v. Williams, 791 So. 2d 1088 (Fla. 2001).
The court noted that “custody” is defined for purposes of speedy trial as
“when [the person] is arrested as a result of the conduct or criminal
episode which gave rise to the crime charged.” State v. Christian, 442 So.
2d 988, 989 (Fla. 2d DCA 1983). A formal arrest, with booking and formal
charges, is not necessary to start the running of the speedy trial rule.
However, something more than an investigatory detention is required. 442
So. 2d at 989. A person may be deemed to be “in custody” for purposes of
his Miranda rights yet not “in custody” for purposes of the application of
the speedy trial rule. 442 So. 2d at 989.75.

  The court set forth the four factors taken from Melton which must be
met to find that a person has been arrested prior to a formal arrest:

      1) whether the purpose or intent of the authority is to effect
      an arrest; 2) seizure of the person; 3) a communication by the
      arresting officer of an intention to effect an arrest; and 4)
      whether the person believes the arresting officer is there to
      arrest and detain him.

See Melton, 75 So. 2d at 294.

   The court addressed all four factors, based upon “analysis of what a
reasonable person would perceive.” As to the first element, the purpose or
intent to effect an arrest, the court found it was satisfied because police
dug into Cheeks’ pockets while he was handcuffed. This was a search

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incident to arrest before transporting a suspect to be booked, and the
complaining witness was there identifying him on the scene as the man
who grabbed her. Element two—an actual or constructive seizure or
detention of the person to be arrested—was satisfied, because Cheeks was
seized by police when he was handcuffed and put in the police car. As to
element three—a communication by the arresting officer to the person
whose arrest is sought of an intention or purpose then and there to effect
an arrest—the court ruled that where a detained person is physically
removed from the scene and involuntarily transported to the police station
for questioning and/or investigation, courts have construed this to be a de
facto arrest. Saturnino-Boudet v. State, 682 So. 2d 188, 193 (Fla. 3d DCA
1996). Element four—an understanding by the person whose arrest is
sought, that it is the intention of the arresting officer then and there to
arrest and detain him—was satisfied, because the court found that any
reasonable person would understand that they had been arrested after
being handcuffed and forcibly placed in a police car at the scene of an
alleged crime, transported to the police station, and placed in a holding
cell, all taking place over a period of seven hours. The court pointed out
that police towed Cheeks’ car and took his belongings. Thus, the court
ruled that there had been an arrest, speedy trial was violated, and Cheeks
had to be discharged. The State now appeals.

    Recently, the supreme court expressed the view that use of the Melton
four-factor test to determine whether an arrest occurs for the purpose of
the running of the speedy trial period has overcomplicated the issue. See
Davis v. State, 286 So. 3d 170 (Fla. 2019). It noted that the federal speedy
trial rule measured the right to speedy trial from the date of formal arrest,
noting that the substantive Sixth Amendment right to a speedy trial is not
implicated by lengthy investigation before that right attaches. Id. “[A]
procedural rule designed to protect a substantive right should come into
play when the substantive right is implicated—not before.” Id. at 175.
Despite this conclusion, the court opted to direct a rule change to address
its concerns. “Until a rule change is made, courts are to continue to look
to Melton to determine when a person is arrested for speedy trial
purposes.” Id. Consistent with that direction, we review the application
of the Melton factors to this case.

   Davis sets forth the standard of review of an order discharging a
defendant for speedy trial violation.

      A trial court’s ruling on a motion to discharge under the
      speedy trial rule presents mixed questions of law and fact.
      Brown v. State, 843 So. 2d 328, 330 (Fla. 1st DCA 2003). The
      trial court’s factual findings will be sustained if they are

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      supported by competent, substantial evidence. Id. We review
      de novo the trial court's application of the law to the facts. Id.

Id. at 173-74.

    Rule 3.191(a), Florida Rule of Criminal Procedure provides that every
person charged with a crime must be brought to trial within 175 days of
arrest. The time period begins when the person is taken into custody. Id.
“Custody” for purposes of the rule means “when the person is arrested as
a result of the conduct or criminal episode that gave rise to the crime
charged.” As noted in Davis, for years the Florida courts have applied the
Melton four-part test to determine when an arrest is made for speedy trial
purposes. See e.g., Griffin v. State, 474 So. 2d 777 (Fla. 1985). All four
factors must be present for a custodial detention to be considered an arrest
for speedy trial purposes. Davis v. State, 253 So. 3d 1234,1238 (Fla. 5th
DCA 2018); Brown v. State, 623 So. 2d 800, 802 (Fla. 4th DCA 1993).

   The trial court properly looked to the Melton factors to determine
whether Cheek was arrested, but erred in its analysis of those factors.
First, the court used the wrong analysis as to two of the factors. It
evaluated them based upon “what a reasonable person would perceive,”
thus viewing each factor from an objective basis. Davis, however, cites
with approval Judge Orfinger’s concurring opinion in Davis v. State, 253
So. 3d 1234, 1242 (Fla. 5th DCA 2018), in which he noted that two of the
elements required the trial court to determine subjective intent:

      [T]wo elements in the current test require the trial court to
      perform very subjective analysis. For element one, the court
      must somehow determine whether the officer subjectively
      intended to effect an arrest, and for element four, the court
      must divine the defendant's subjective understanding of
      whether the officer subjectively intended to effect an arrest.

Therefore, the court erred as a matter of law in analyzing these factors.

   Applying the correct law to the factors, we conclude that Cheeks was
not arrested on the date of the incident. Therefore, the speedy trial time
did not run.

   The first element requires that there be a purpose or intent of the
authority to effect an arrest. The trial court found that because Cheeks
was seized, and his pockets searched prior to being placed in the police
vehicle, this was a search incident to a lawful arrest prior to booking the
defendant, as he had already been identified by the victim. The detectives

                                      6
testified, however, that standard procedures require a person to be
searched before being placed in a patrol car for reasons of officer safety.
Further, had the defendant been arrested, he would have been taken to
the Palm Beach Sheriff’s Office where the jail was located. Instead, he was
taken to the police headquarters for questioning.

   As noted in State v. Lail, 687 So 2d 873, 875 (Fla. 2d DCA 1997):

      The fact that a defendant has been handcuffed, however—or,
      as in this case, temporarily placed in a holding cell—goes to
      the involuntary nature of a detention and the entitlement to
      Miranda warnings. State v. Christian, 442 So. 2d at 990. It
      does “not convert [a] detention for questioning into an arrest.”
      Id.

   In Lail, officers received a report of a sexual battery Lail had committed
against his stepdaughter. Officers arrived at his home, questioned him,
and then asked him to accompany them to the police station for further
questioning. There, he was placed in a temporary cell for hours,
questioned for more hours, subjected to a body search, and ultimately
released after seven hours. The court held that the Melton test had not
been met. “While the record shows that the officers herein intended to
question him, there is no showing that they intended to arrest him, that
they told him he was under arrest, or that he otherwise understood he was
under arrest.” Id. at 874.

    Similarly, in this case, while Cheeks was handcuffed, searched, placed
in a police vehicle and driven to the station for questioning, there was no
evidence that the officers, either at the scene or at the police station,
intended to arrest Cheeks that day. In fact, the only testimony as to the
officers’ intent was that of the detective who interviewed Cheeks. He
testified that they were not intending to arrest Cheeks, as they needed to
do more investigation. That Cheeks was subject to a search prior to
entering the vehicle, may impact his Fourth Amendment Miranda rights,
but it does not establish an arrest for speedy trial purposes.

   The second factor of Melton requires a seizure of the person. All parties
agree that Cheeks was seized by the officers at the scene. Therefore, this
factor was met.

   Communication by the officer of an intent to arrest the defendant is the
third factor. The trial court found that actual communication of an intent
to make an arrest was not required; police actions could communicate an
intent to arrest, citing to Saturnino-Boudet v. State, 682 So. 2d 188, 193

                                     7
(Fla. 3d DCA 1996), for the proposition that removing a person
involuntarily from the scene of a crime for the purposes of investigation or
interrogation constitutes a de facto arrest. Saturnino-Boudet, however,
involved the denial of a motion to suppress based upon Fourth
Amendment violations, not a speedy trial issue. “A person may be deemed
to be ‘in custody’ for purposes of his Miranda rights yet not be ‘in custody’
for purposes of the application of the speedy trial rule.” State v. Christian,
442 So. 2d 988, 989 (Fla. 2d DCA 1983), citing State ex rel. Dean v. Booth,
349 So. 2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So. 2d 129 (Fla.1978).

    We disagree that actual communication of the intent to arrest is not
necessary. Without actual communication, that factor would also require
a subjective component condemned by the supreme court in Davis. And
it would leave both authorities and suspects without the clarity necessary
to gauge whether an arrest has occurred for purposes of speedy trial. We
hold that communication of an attempt to arrest must be an express
statement of intent to arrest. Here, there was none. The detectives never
told Cheeks he was going to be arrested, and consistently explained that
he would be free to go in a few hours. There was no communication of an
intent to arrest. The third Melton factor is not satisfied.

   Finally, Melton’s fourth element requires an understanding by the
suspect of the intention of the authorities to arrest and detain him. As
noted in Davis, this involves a determination of the suspect’s subjective
understanding. Cheeks was never told he was arrested, and he never
testified, relying instead on the video of his interrogations. But in the
video, he did not evince an understanding that he was arrested. He
continually asked when he could leave, and the detectives responded that
he could leave as soon as they were finished with some of their
investigation. They never told Cheeks that he would have to stay. No
evidence shows that Cheeks subjectively understood that he was under
arrest. Thus, the fourth factor was not established.

    In conclusion, of the four Melton factors required to prove that a suspect
has been arrested, three are not supported by the record evidence.
Therefore, Cheeks failed to prove that he was arrested within the meaning
of rule 3.191(c) for speedy trial purposes. The trial court erred in granting
his discharge. We therefore reverse and remand for reinstatement of the
charges against Cheeks.

   Reversed and remanded for reinstatement.

KLINGENSMITH and KUNTZ, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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