       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                 ALFREDO ARTURO SOTELO GOMEZ,
                           Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D11-2976

                           [November 19, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
2009CF000335AMB.

   Valarie Linnen, Atlantic Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A.
Tringali, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Alfredo Arturo Sotelo Gomez appeals his convictions for first-
degree murder and kidnapping. Appellant specifically challenges the
denial of his motion to suppress all statements and physical evidence
derived from his arrest and the denial of his request for a special jury
instruction on the “independent act” defense. As set forth below, we find
no error in the trial court’s decisions and affirm.

                               Background

    Appellant became involved in negotiating a narcotics deal with an
undercover police officer after the victim introduced the officer, whose true
identity remained unknown to either of them, to Appellant. Appellant
eventually told the undercover officer that he did not trust the victim
because the victim had been “snitching” on some drug dealers, but
Appellant assured the undercover officer not to worry because “we’ll get
him by tomorrow.” Soon thereafter, the victim’s lifeless body was found
floating in a canal, with multiple stab wounds.
   When the undercover officer heard that the victim had been murdered,
he contacted the detective in charge of the investigation to tell her what he
had heard from Appellant. The detective and the officer arranged for the
undercover officer to meet with Appellant regarding the narcotics
transaction while the detective had a tactical unit on location for
surveillance and to obtain Appellant’s identification.

    The meeting occurred, but no drugs were exchanged, and so Appellant
left. Appellant was approached by a deputy, who was part of the
surveillance team, on the street soon after as he was walking from his
home nearby. The deputy told Appellant that he was investigating a
robbery, which was a ruse, and asked if he had seen anything. Appellant
said he had not and then the deputy asked for his identification. After
Appellant’s identification came back with no outstanding warrants, the
deputy asked if he would wait for a detective to come to speak with him
about the robbery. Appellant agreed.

    The detective arrived and asked Appellant a few questions. She then
asked Appellant to come to the Sheriff’s headquarters with her to see if he
could help with the robbery investigation. Appellant agreed and rode,
unrestrained, to the headquarters with another officer. At this point, the
officers had not returned Appellant’s identification.

    At the headquarters, Appellant was kept unrestrained and agreed to
have his fingerprints, his DNA, and some pictures taken. The detective
read Appellant his Miranda1 warnings, and then she and the undercover
officer asked Appellant about the victim’s murder. Appellant eventually
confessed to his involvement in the murder. He explained that he and a
group of drug dealers wanted to shut up the victim and “make him deaf
and mute” because he had “ratted them out.” The group devised a plan to
have a female accomplice bring the victim to a certain bar and then come
outside when the group arrived. When the group arrived at the bar, the
victim came outside with the woman and then got in the car with
Appellant. The group drove to a canal where Appellant led the victim out
of the car, holding the victim’s hands behind his back. Another individual,
nicknamed “Yogi” or “Yoqui,” then came up from behind Appellant and
slashed the victim’s throat and stabbed him while Appellant held him.
Appellant and another accomplice then dragged the victim’s body to the
canal and threw him in. This interview was recorded.

     Appellant moved to suppress the statements to the officers and the

1   Miranda v. Arizona, 384 U.S. 436 (1966).

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physical evidence obtained after his arrest, arguing that the officers lacked
probable cause to arrest him. The trial court denied the motion, finding
that, although the State argued that Appellant was never arrested but
voluntarily went with the officers, there was a de facto arrest of Appellant
that was based on probable cause. The case proceed to trial, and Appellant
was convicted of first-degree murder and kidnapping.

                            Standard of Review

   With a motion to suppress, a trial court’s factual findings are reviewed
for competent, substantial evidence and mixed questions of law and fact
are reviewed de novo. R.J.C. v. State, 84 So. 3d 1250, 1254 (Fla. 4th DCA
2012). The trial court’s ruling comes to this court “clothed with a
presumption of correctness and the court must interpret the evidence and
reasonable inferences and deductions derived therefrom in a manner most
favorable to sustaining the trial court’s ruling.” Id. (quoting Terry v. State,
668 So. 2d 954, 958 (Fla. 1996)).

                    Denial of the Motion to Suppress

   We recognize that even a de facto arrest, where the police do not intend
to officially arrest a defendant but the circumstances amount to the
defendant not being free to leave the encounter, requires probable cause.
See M.J. v. State, 121 So. 3d 1151, 1154-56 (Fla. 4th DCA 2013).
“Probable cause to arrest or search exists when the totality of the facts and
circumstances within an officer’s knowledge sufficiently warrant a
reasonable person to believe that, more likely than not a crime has been
committed.” Bethel v. State, 93 So. 3d 410, 413 (Fla. 4th DCA 2012)
(quoting State v. Blaylock, 76 So. 3d 13, 14 (Fla. 4th DCA 2011)). This is
a low standard that does not require absolute certainty about criminal
activity. Blaylock, 76 So. 3d at 15. Additionally, “[u]nder the [fellow officer]
rule, one officer may rely on the knowledge and information possessed by
another officer to establish probable cause for an arrest for a felony . . . .”
State v. Bowers, 87 So. 3d 704, 707 (Fla. 2012) (quoting Bowers v. State,
23 So. 3d 767, 770 (Fla. 2d DCA 2009)).

    We hold that the instant facts, viewed in the light most favorable to
sustaining the trial court’s ruling, support the conclusion that (1) the
officers did conduct a de facto arrest of Appellant, where the failure to
return his identification caused Appellant to reasonably believe he was not
free to leave, and (2) the arrest was based on probable cause. Appellant’s
argument on appeal is that the police lacked probable cause to arrest him
because the undercover agent testified, “He said that he was going to take
care of him by tomorrow, meaning, like many things. I [didn’t] know that

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[the murder of the victim] was what’s going to happen.” As such, Appellant
maintains, this statement was too ambiguous, “standing alone,” to lead a
prudent person to believe that Appellant committed any offense.

    The flaw with Appellant’s challenges is that the undercover officer’s
report was one piece of the puzzle providing the police with probable cause
to arrest and question Appellant. At the time of the arrest, the officers
collectively knew that Appellant was negotiating a narcotics transaction
with an undercover officer after being introduced to the officer by the
victim; Appellant had just come from a meeting about that transaction;
Appellant had a motive to harm the victim, as he had told the undercover
officer (whom he did not know was a law enforcement agent) that he
believed the victim was “a snitch”; he had expressed an intent to “deal
with” the victim (he told the officer that the victim “would be taken care
of”); and there was evidence of murder with respect to the person who
Appellant had declared would be “taken care of,” as the police recovered
the victim’s body from the canal shortly after that statement was made.
This information warranted a reasonable person to believe that, more likely
than not, Appellant was involved in the victim’s murder. We therefore
affirm the trial court’s ruling on the issue of probable cause.

        The Jury Instruction on the Independent Act Defense

   Appellant’s second challenge on appeal relates to his request for a jury
instruction on the independent act defense. We review the trial court’s
refusal of a requested jury instruction for abuse of discretion. McClover v.
State, 125 So. 3d 926, 927 (Fla. 4th DCA 2013). “[T]he trial judge’s
discretion is fairly narrow because a criminal defendant is entitled, by law,
to have the jury instructed on his theory of defense if there is any evidence
to support his theory and the theory is recognized under Florida law.” Id.
(quoting Palmore v. State, 838 So. 2d 1222, 1223 (Fla. 1st DCA 2003)
(emphasis in original)).

   “The independent act doctrine arises when one co-felon, who previously
participated in a common plan, does not participate in acts committed by
his co-felon, which fall outside the common design of the original
collaboration.” Lopez v. State, 97 So. 3d 301, 304 (Fla. 4th DCA 2012);
see also Fla. Std. Jury Instr. (Crim.) 3.6(l). “[Where, however,] the
defendant was a willing participant in the underlying felony and the
murder resulted from forces that they set in motion, the independent act
instruction is inappropriate.” Johnson v. State, 36 So. 3d 170, 172 (Fla.
3d DCA 2010).

   In the present case, the trial court did not abuse its discretion in

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denying the request for an instruction on the independent act defense
where the evidence does not support giving the instruction. Appellant and
the group of drug dealers clearly devised a plan to intimidate and/or harm
the victim. One member of the group testified that the plan was to make
the victim “permanently deaf and blind.” The same witness testified that
they all saw “Yogi” with the murder weapon while they were making the
plan. Although Appellant may not have intended for the victim to be so
brutally murdered or even murdered at all, Appellant willingly participated
in the crimes by preventing the victim from running away and holding his
hands behind his back, which set forces in motion leading to the murder.
See id. Even after the victim’s throat was slashed, Appellant assisted in
throwing the body in the canal. Furthermore, the harming and killing of
the victim were “a reasonably foreseeable consequence of the common
design” to make the victim “permanently deaf and blind,” as contemplated
by Appellant. See Fla. Std. Jury Instr. (Crim.) 3.6(l).

                               Conclusion

   Because we find no error in the trial court’s decision to deny the motion
to suppress and deny the requested jury instruction, we affirm.

   Affirmed.

DAMOORGIAN, C.J., and CIKLIN, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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