         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-4752
                 _____________________________

DANIEL HEATH WILLIS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

                          April 5, 2018


WINSOR, J.

     Less than an hour after police arrested Daniel Willis for
shoplifting, they realized they had the wrong man. But in the
meantime, officers searched Willis pursuant to that arrest and
found drugs and paraphernalia. That discovery led to drug charges
and an allegation that Willis violated his probation. Willis
unsuccessfully moved to suppress the evidence, contending the
search was unlawful. Willis then pleaded no contest, reserving his
right to appeal on the suppression issue. We now reverse.

                                I.

     In December 2015, a shoplifter victimized the Best Buy in
Gainesville’s Butler Plaza. Some employees saw the perpetrator
flee on foot toward the nearby Texas Roadhouse, and others saw a
Chevy Silverado leaving the scene. Police soon put out a bulletin
for officers to be on the lookout for the truck and a slim white male
wearing jeans and a hat. An officer spotted Willis—a slim white
male wearing jeans and a hat—in the parking lot outside the Texas
Roadhouse. The officer approached Willis, explained that he was a
suspect in a criminal investigation, and told him to “hang out and
just wait.”

     While the first officer detained Willis, a second officer
responded directly to the Best Buy. Store employees were
gathering surveillance video for review, but rather than wait for
the video, the second officer drove an eyewitness (a store employee)
to the spot where Willis was detained. On the short drive over, the
second officer told the witness how the showup identification 1
would work: Reading from a standard form, the second officer said
the witness “should not feel [he has] to make an identification” and
that “[i]t is just as important to exclude innocent persons from
suspicion as it is to identify the suspect.” 2 But after reading the
standard instructions, the second officer added that “I think this is
going to be unusual. There are two people involved and this was
the getaway driver, I think.”

     Willis was standing in front of the first officer’s patrol car
when the second officer drove up with the witness. Once within
sight of Willis, the second officer asked the witness whether Willis
was the shoplifter. From the patrol car’s back seat, and some eight
to ten car lengths away, the witness looked at Willis but hesitated
to make a positive identification. He said that although Willis
matched the general description, the clothing was not a match. He
also explained that Willis’s arm tattoo could not help the
identification because the shoplifter had been wearing a jacket.
The witness did note, though, that Willis had “a ball cap on and . . .

    1  A “showup identification” is when police take a witness
shortly after a crime to the location of a detained suspect, allowing
the witness to identify the suspect. Anderson v. State, 946 So. 2d
579, 582 (Fla. 4th DCA 2006).
    2 A camera mounted in the second officer’s police car recorded
interaction between the officer and the witness. The video was
admitted into evidence below and is part of the record on appeal.

                                  2
a shaved face,” as did the shoplifter. While the witness continued
to contemplate, the second officer asked “yes or no?” The witness
said “yes.”

     As soon as the witness said “yes,” the second officer radioed
the first officer, relaying that Willis had been positively identified.
The second officer then drove off with the witness, and the first
officer arrested Willis. When the second officer got back to Best
Buy, she learned the security footage was ready for review.
Looking at the footage, she immediately realized Willis was not the
shoplifter. She then drove back to the Texas Roadhouse parking
lot to tell the first officer of the misidentification.

     In the short time between Willis’s arrest and the realization
that they had the wrong man, police searched Willis and found
cash, a baggie with cocaine residue, and some cut up straws in his
pocket. This discovery prompted a K9 officer, already on the scene,
to walk his dog near Willis’s nearby truck. After the dog alerted,
officers searched the truck and found forty grams of marijuana,
several baggies of cocaine, and a scale with marijuana and cocaine
residue.

     The State charged Willis with possession of drugs and
possession with intent to distribute, and Willis moved to suppress
all evidence found as a result of the arrest, arguing that the
showup identification that set everything in motion was
impermissibly suggestive. The court denied that motion.

                                  II.

     The Florida Supreme Court has said that “a show-up is
inherently suggestive because a witness is presented with only one
suspect for identification.” Perez v. State, 648 So. 2d 715, 719 (Fla.
1995). Nonetheless, evidence from a showup identification is
admissible if “despite its suggestive aspects, the out-of-court
identification possesses certain features of reliability.” Grant v.
State, 390 So. 2d 341, 343 (Fla. 1980) (citing Manson v. Brathwaite,
432 U.S. 98, 110 (1977)); accord Perez, 648 So. 2d at 719 (“[A] show-
up is not invalid if it does not give rise to a substantial likelihood
of irreparable misidentification given the totality of the
circumstances.”).


                                  3
     Florida courts apply a two-step test to determine the
admissibility of an out-of-court identification: “(1) did the police
employ any unnecessarily suggestive procedure in obtaining an
out-of-court identification; (2) if so, considering all the
circumstances, did the suggestive procedure give rise to a
substantial likelihood of irreparable misidentification.” Grant, 390
So. 2d at 343 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
As to the first step, we conclude the showup process at issue here
was unnecessarily suggestive. The second officer’s comment—“this
was the getaway driver, I think”—suggested that Willis was
involved in the crime. See, e.g., Anderson v. State, 946 So. 2d 579,
581 (Fla. 4th DCA 2006) (showup was impermissibly suggestive
when perpetrator used screwdriver in robbery and, before showup,
police informed witnesses that detained suspect had been carrying
a screwdriver); Davis v. State, 683 So. 2d 572, 574 (Fla. 4th DCA
1996) (officer’s statement that “I think we caught them, but you
need to properly identify them” was improperly suggestive)
abrogated on other grounds by Diaz v. State, 980 So. 2d 1275 (Fla.
4th DCA 2008). As the trial court recognized, the comment was
improper and “certainly would bolster someone’s willingness to
say, yeah, that’s the guy I saw.”

     Turning to the second step, we must consider whether, under
the totality of the circumstances, the identification process was
reliable despite the unnecessarily suggestive procedure. The State
has the burden to prove reliability by clear and convincing
evidence. Johnson v. State, 717 So. 2d 1057, 1063 (Fla. 1st DCA
1998). Relevant factors for determining the reliability include

    the opportunity of the witness to view the criminal at the
    time of the crime, the witness’ degree of attention, the
    accuracy of the witness’ prior description of the criminal,
    the level of certainty demonstrated by the witness at the
    confrontation, and the length of time between the crime
    and the confrontation.

Perez, 648 So. 2d at 719 (quoting Biggers, 409 U.S. at 199); accord
Walton v. State, 208 So. 3d 60, 66 (Fla. 2016) (citations omitted)
reh’g denied, SC13-1652, 2017 WL 203617 (Fla. Jan. 18, 2017).
Applying these factors to the facts of this case, we conclude the
State did not meet its burden.

                                 4
     Although the witness saw the shoplifter in the Best Buy, the
witness never saw a second suspect or a vehicle. The officer knew
this when she took the witness to the Texas Roadhouse for the
identification, yet she suggested Willis was a getaway driver. The
witness offered no description of the shoplifter before
misidentifying Willis, so there is no way to compare any pre-
identification description to Willis’s actual description. And
perhaps most critically, the witness displayed little certainty that
Willis was the man he saw. Both the witness and the officer
testified that the witness was initially hesitant to make a positive
identification. Indeed, after viewing Willis at the showup, the
witness’s initial observation was that Willis was not wearing a
jacket but the shoplifter had been. Cf. Walton, 208 So. 3d at 66
(“[W]e conclude that [the witness] did not display a high level of
certainty when she identified Walton.”). The video from the in-car
camera shows that while the witness was contemplating the
similarity of the suspect in custody to the suspect he observed, the
officer abruptly interjected and asked, “yes or no?” Only after this
interjection did the witness positively identify Willis. The officer
never asked the witness how confident he was in his identification;
instead, she immediately drove off, preventing any further
contemplation. 3

                                III.

     Considering the totality of the circumstances on the particular
facts of this case, we conclude the showup identification lacked
sufficient indicia of reliability to overcome the unnecessarily
suggestive procedure through which it was obtained. The trial
court therefore should have suppressed all evidence obtained as a
result of the misidentification.


    3 The witness testified at the suppression hearing that when
he identified Willis, he worried about the fact that Willis had no
jacket because the jacket was what he remembered most about the
shoplifter. The witness also testified that he was only “somewhat
confident” in his identification, but that he was confident at the
time that police knew what they were doing and would not have
asked him to make an identification unless they were “pretty sure”
that they had detained the right person.

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     The State acknowledges that without the misidentification,
officers would have lacked probable cause to arrest Willis. Without
the arrest, officers would have lacked justification to search
Willis’s person and would not have found paraphernalia in Willis’s
pocket. And without the paraphernalia, police would not have been
prompted to walk their dog around Willis’s truck, nor would they
have had probable cause to search the truck. 4 We therefore reverse
the order denying Willis’s motion to suppress. On remand, the trial
court should vacate Willis’s convictions and reinstate his
probation.

    REVERSED and REMANDED.

BILBREY and M.K. THOMAS, JJ., concur.


                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Rodney W. Smith and Jesse Smith of Avera & Smith, LLP,
Gainesville, for Appellant.


    4   As the trial court explained, during the time Willis was
lawfully detained before the showup, his truck was parked in a
public parking lot, so there was nothing stopping officers from
conducting a K9 sniff. A positive alert would have provided
probable cause to search the truck, and Willis likely would have
wound up with the same charges and convictions. But the record
shows that the K9 sniff did not occur until after—and only as a
direct result of—Willis’s arrest and the discovery of drug
paraphernalia in his pocket. Suppression of the evidence found in
the vehicle is therefore required. See Moody v. State, 842 So. 2d
754, 759 (Fla. 2003) (suppression required when an “initial arrest
set[s] in motion an unbroken chain of events, which include[s] the
discovery of” additional evidence).

                                6
Pamela Jo Bondi, Attorney General, and Sharon Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




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