       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       ROMULISS JARVIS HICKS,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D14-904

                            [January 27, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Matthew I. Destry, Judge; L.T. Case No.
09019556CF10A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Romuliss Hicks was sentenced to thirty months of probation
after pleading no contest to robbery and aggravated assault charges in
2011. In 2013, Appellant was charged with violating his probation by
committing burglary. The trial court found that Appellant had violated his
probation and sentenced Appellant to five years’ incarceration. Appellant
appeals, arguing the trial court should have suppressed an in-court
identification and allowed him to present mitigation evidence during
sentencing. We affirm the sentencing issue without comment and write
solely to address the suppression issue. Because the trial court did not
err, we affirm Appellant’s conviction.

                               Background

    Appellant was charged with violating his probation after being
implicated in the burglary of a gun store in Pompano Beach. Testimony
at trial established that the store’s silent alarm was triggered in the early
morning hours, prompting officers to arrive and create a perimeter around
the building. The officers found one of the store’s windows broken and
damage inside the store. One officer (“the observing officer”) saw a black
man wearing black shorts and a black shirt exit the rear of the store and
run west along the nearby railroad tracks. He radioed this description to
other officers in the area.

    A different officer spotted Appellant within the perimeter around the
store and detained him. This officer (“the detaining officer”) admitted he
had not heard the observing officer’s description and stopped the
Appellant solely because he was inside the perimeter. The observing officer
joined the detaining officer and identified Appellant as the man he saw
fleeing the store. A search of Appellant’s person revealed that he had white
powder or chunks of plaster on his clothes and shards of broken glass in
the upper rim of his shoes.

    At trial, the court ruled that the detaining officer’s stop of Appellant was
unconstitutional, finding that the detaining officer lacked articulable
suspicion for a Terry stop as he stopped him solely for being inside the
established perimeter. See Terry v. Ohio, 392 U.S. 1 (1968). The trial court
suppressed everything that occurred after the stop, including the physical
evidence found on Appellant’s shoes and clothes. However, the trial court
allowed testimony from the observing officer as to his observation of
Appellant prior to the stop. The observing officer testified that Appellant
was the man he saw running from the scene of the crime. The trial court
accepted the veracity of this testimony and found that Appellant had
violated his probation.

                                   Analysis

    The exclusionary rule, the preferred remedy for constitutional
violations, hides illegally obtained evidence from the trier of fact. To aid in
creation and application of this legal fiction, courts have also adopted the
“fruit of the poisonous tree” doctrine. This principle, first established in
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), although
not given its present name until Nardone v. United States, 308 U.S. 338
(1939), dictates that “the exclusionary rule bars the admission at trial of
physical evidence and live witness testimony obtained directly or indirectly
through the exploitation of the police illegality.” Wells v. State, 975 So. 2d
1235, 1238 (Fla. 4th DCA 2008) (citing Wong Sun v. United States, 371
U.S. 471, 484-88 (1963)).

   In the case at hand, Appellant argues that the trial court should not
have allowed the in-court identification by the observing officer. An in-
court identification “may not be admitted ‘unless it is found to be reliable

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and based solely upon the witness’[s] independent recollection of the
offender at the time of the crime,’ uninfluenced by any intervening illegal
confrontation.” Fitzpatrick v. State, 900 So. 2d 495, 519 (Fla. 2005)
(quoting Edwards v. State, 538 So. 2d 440, 442 (Fla. 1989)).

      In gauging the reliability of an in-court identification, the trial
      judge must consider the following factors:              the prior
      opportunity the witness had to observe the alleged criminal
      act; the existence of any discrepancy between any pretrial
      lineup description and the defendant’s actual description; any
      identification prior to the lineup of another person; any
      identification by picture of the defendant prior to the lineup;
      failure to identify the defendant on a prior occasion; any time
      lapse between the alleged act and the lineup identification;
      and any other factors raised by the totality of the
      circumstances that bear upon the likelihood that the
      witness’[s] in-court identification is not tainted by the illegal
      lineup.

Edwards, 538 So. 2d at 443 (citing United States v. Wade, 388 U.S. 218,
241(1967)). Appellant argues the trial court improperly considered the
factors specified in Anderson v. State, 946 So. 2d 579 (Fla. 4th DCA 2006),
which apply to the admission of an out-of-court identification. However,
the Edwards court specifically noted the substantial overlap between the
factors enumerated in Neil v. Biggers, 409 U.S. 188 (1972) (on which
Anderson relies) and the ones it provided for in-court identifications. The
trial court did not err by considering these factors.

    In this case, the trial court found that the in-court identification was
reliable, as the officer had a “good opportunity” to see Appellant running
from the building, the identification at the stop was not conducted in an
overly suggestive manner, and the out-of-court identification was done
quickly. The in-court identification was also based “‘upon the witness’[s]
independent recollection of the offender at the time of the crime.’”
Fitzpatrick, 900 So. 2d at 519 (quoting Edwards, 538 So. 2d at 442).
Therefore, the trial court properly allowed the officer to identify the
Appellant as the man he saw fleeing the scene of the crime.

   Appellant also contends his identity itself should have been suppressed
based on the unconstitutional stop and likens this case to State v. Perkins,
760 So. 2d 85 (Fla. 2000), and Garrett v. State, 946 So. 2d 1211 (Fla. 2d
DCA 2006). In Perkins, a defendant was illegally stopped while driving.
Perkins, 760 So. 2d at 85. During the stop, the police obtained the
defendant’s license and discovered it was suspended. Id. This Court and

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the Supreme Court both held that the information obtained in the stop,
including the defendant’s identity as the driver and his driving record,
should be suppressed where “[i]t is clear that in the instant case the
evidence required to prosecute the charge of driving with a suspended
license came directly from the exploitation of the unlawful stop.” Id. at 88;
see also Delafield v. State, 777 So. 2d 1020, 1021 (Fla. 2d DCA 2000) (“In
a prosecution for driving with a suspended license, the essential evidence
consists of the officer’s discovery of the identity of the defendant as the
driver at the time of the arrest. When the stop is tainted, so is the
identification evidence.”).

    In Garrett, the defendant had previously been placed on community
control and was not allowed to be away from his residence without
permission. Garrett, 946 So. 2d at 1212. He was stopped by a police
officer in the parking lot of a convenience store. Id. The trial court found
this stop to be unlawful and suppressed all evidence found at the stop,
but allowed the officer to identify the defendant as the man he had seen in
the parking lot. Id. at 1213. Based on this identification, the court found
that the defendant had violated his community control by being out of his
residence without permission. Id. The Second DCA reversed, holding that
the identification of the defendant should have been suppressed as well.
Id. at 1213-14. The Second DCA reasoned:

      It was only because the deputy made the illegal seizure that
      he learned Garrett’s identity. And it was only because of the
      illegal seizure that the community control supervisor learned
      that Garrett may have violated the terms of his community
      control by being outside his residence at the time of the
      seizure.

Id. at 1214.

    Perkins, Delafield, and Garrett are distinguishable from the current
case. In these three cases, the officers could not have known the
defendants had committed a crime until they discovered incriminating
information during the illegal stops (Perkins and Delafield were driving
with suspended licenses and Garrett was on residential detention). In the
instant case, by contrast, none of the information learned during the
detaining officer’s detention of Appellant was permitted to be used in the
trial, other than Appellant’s name. The incriminating evidence (Appellant
fleeing the scene of the burglary) was obtained as a result of the observing
officer’s observation prior to the illegal stop.

                                Conclusion

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   The information used to identify Appellant in court was obtained prior
to, and independently of, the illegal stop. To hold that an illegal stop
justifies the suppression of not just subsequently and consequently
obtained evidence, but also evidence obtained prior to the stop would
create a new rule, the “root of the poisonous tree” doctrine, out of whole
cloth. We decline to do so. Appellant’s conviction is therefore affirmed.

   Affirmed.

STEVENSON, J., concurs.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

   I dissent, because the identity (name) of the appellant was only
acquired as a result of the illegal stop. There was no evidence that any
independent investigation would have discovered the identity of the
appellant or his participation in the burglary. See Garrett v. State, 946 So.
2d 1211, 1214 (Fla. 2d DCA 2006).

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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