       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         COURTNEY PEYNADO,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3367

                             [August 1, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael I. Rothschild, Judge; L.T. Case No. 16-
010943CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

    Courtney Peynado appeals his withhold of adjudication and sentence
for one count of possession of cocaine following a plea. We reverse because
the evidence supporting the charge against Appellant was the result of an
illegal search and seizure.

    Appellant was arrested and charged with one count of possession of
cocaine after police found crack cocaine in a food container held by
Appellant. Appellant moved to suppress the evidence on the grounds that
it was obtained as the result of an illegal search and seizure. The matter
proceeded to a suppression hearing where the following was established
via the testimony of the arresting officer.

   At around 7:30 a.m., the officer and his partner were patrolling a high
crime area. The officer, who was wearing a vest with the word “Sheriff”
written on it, was driving an unmarked SUV with the windows rolled down.
As the officer proceeded to turn at an intersection, he observed two males
standing at the corner of the intersection. One of the males, who the officer
identified as Appellant, was holding an open white food container in one
hand and a fork in the other.

   As the officer turned, Appellant looked up with a “deer in headlights”
expression on his face. Appellant then dropped his fork, followed by a
large, yellow, chunky item, into the food container and pushed the item
down with the fork. Based on his training and twenty-five years of
experience as a law enforcement officer, the officer testified that he
immediately recognized the item dropped into the food container as crack
cocaine. The officer stopped his vehicle, instructed his partner to detain
Appellant, and took the container, which contained grits, out of Appellant’s
hands. Using the fork, the officer lifted the item out of the grits. Testing
confirmed that the item was in fact crack cocaine.

   On cross-examination, defense counsel attempted to ascertain how far
the officer was when he observed Appellant drop the item into the
container. In so doing, the record reflects that defense counsel moved
about the courtroom several times while asking the officer if the distance
separating them was the same as the distance that separated the officer
and Appellant. Aside from generically testifying that he was “close enough
to see the crack drop out of [Appellant’s] hand,” the officer steadfastly
refused to give an approximation of his distance from Appellant. In fact,
the officer told defense counsel “[y]ou can go right out the door, I still won’t
say.”

   After viewing the cocaine, which the court described as a white, semi-
waxy, one inch square which at first glance looked like a pat of butter, the
court made the following finding with regard to the officer’s credibility:

      First, there’s no way I believe the officer when he says he was
      able to immediately identify the object that was dropped into
      the container as being crack cocaine. I don’t think—I think
      it’s incomprehensible from almost any distance based on what
      this court observed to be able to say that no matter with what
      training and experience that the object was in fact crack
      cocaine.

                                      ...

      I can tell you with complete surety, even with perfect vision,
      from the size of the item that I saw in evidence there’s no way
      that someone from the back of this courtroom would be able
      to tell me that they could recognize what I saw as a white
      square dropping into a takeout plate was crack cocaine. If it

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      was maybe a foot away or two feet away or even five feet away,
      with the officer’s training and experience considering where he
      was, etc., maybe [it] could be something I could buy.

    Nonetheless, citing to case law involving the application of the plain
view doctrine, the court denied the motion to suppress based on the
following legal conclusions:

      [T]he standard isn’t whether it was cocaine or not, it’s whether
      or not the incriminating nature of the evidence was
      immediately apparent and that police are not required to know
      what exactly the item is, it’s just a question whether or not the
      circumstances in seeing the item lead the officers to believe
      reasonably that it is incriminating, that there’s incriminating
      nature to the evidence.

      In this case we have a situation where officer pulls up where
      the individual recognizes the person in the car to be an officer
      is surprised, nervous. The description of the officer like a deer
      in headlights. In response to that, the person who happen[s]
      to be in the high crime narcotics area drops first the fork that
      he’s using to eat items immediately followed by what the officer
      claims he . . . sees crack cocaine which I do not believe, but
      does drop an item that is consistent potentially with crack
      cocaine into the plate that he’s holding and proceeds to push
      the item down into the plate all in response to seeing a police
      officer.

      I think taken those circumstances in its context, I think the
      officer does have a reasonable belief that what [Appellant] was
      dropping did have an incriminating nature. Although I do not
      believe that the officer could identify particularly what it was
      but since he’s not required to under the circumstances, would
      lead a reasonable officer or reasonable person to believe that
      what was being dropped into the [container] was incriminating
      in nature and therefore justified an investigatory stop.

   After the court denied his motion to suppress, Appellant entered a plea
of no contest, reserving his right to appeal the suppression ruling. Based
on his plea, the court withheld adjudication and sentenced Appellant to
twenty-four months of drug offender probation. This appeal follows.

    The Fourth Amendment of the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and

                                     3
effects, against unreasonable searches and seizures.” U.S. Const. amend
IV. “[A]n officer may, consistent with the Fourth Amendment, conduct a
brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000). The officer, however, “must be able to articulate more than an
‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.”
Id. at 123–24 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

    In finding that the officer had the requisite reasonable suspicion to
detain Appellant and search and seize the food container, the trial court
in the instant case relied on case law involving the application of the plain
view doctrine. Under that doctrine, items in plain view may be seized
without a warrant if the incriminating character of the items are
immediately apparent to the officer. Keller v. State, 946 So. 2d 1233, 1234
(Fla. 4th DCA 2007). Stated differently, upon seeing items in plain view,
the officer “must have probable cause to believe a crime is being, is about
to be, or has been committed.” Id. Although the officer is not required to
know that the items are contraband for certain, there must be “facts
available to the officer [which] would lead a reasonable man of caution to
believe that certain items may be contraband.” State v. Walker, 729 So.
2d 463, 464 (Fla. 2d DCA 1999). “These facts may include not only the
appearance of the suspected contraband, but also all of the surrounding
circumstances.” State v. Fischer, 987 So. 2d 708, 712 (Fla. 5th DCA 2008).
“Based on an officer’s training and experience, the incriminating nature of
a substance in open view may be determined by the officer’s visual
observation and identification of the substance.” Id.

    In the present case, the trial court made an express finding that it did
not believe the officer immediately identified the item as cocaine based on
his visual observation of the item. To the contrary, the court found that it
was “incomprehensible from almost any distance based on what this court
observed to be able to say that no matter with what training and experience
that the object was in fact crack cocaine.” Rather, the court found that
the incriminating nature of the item was determined by the surrounding
circumstances, namely Appellant’s nervous reaction to seeing the officer
and his subsequent attempt to conceal the item. Appellant’s movements,
however, were insufficient to give the officer reasonable suspicion, let alone
probable cause, to believe that the item was contraband or that Appellant
was involved in criminal activity. See Welch v. State, 689 So. 2d 1240,
1241 (Fla. 2d DCA 1997) (holding that although the officers could have
properly engaged in a consensual police-citizen encounter upon spotting
the defendant stuff a baggie into his pants while in a high crime area, the
officers “acted prematurely in actually seizing him”); M.J.S. v. State, 620
So. 2d 1080, 1081 (Fla. 2d DCA 1993) (holding that the defendant’s

                                      4
startled reaction to seeing the officer and subsequent attempt to conceal
something in his mouth “did not give the police officer a reasonable
suspicion or probable cause to believe that the [defendant] was involved in
criminal activity”).

   In sum, we hold that the trial court erred in denying Appellant’s motion
to suppress. Because the suppression ruling was established as a
dispositive issue, Appellant’s withhold of adjudication and sentence is
reversed. See Osorio v. State, 43 Fla. L. Weekly D1043, D1045 (Fla. 4th
DCA May 9, 2018).

   Reversed.

LEVINE and KUNTZ, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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