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Court throws out seized marijuana----Case Dismissed CIRCUIT, IN AND FOR ST. LUCIE COUNTY, FLORIDA
STATE OF FLORIDA
Plaintiff,
v. Case No.: 03-2726 Judge Yacucci RICARDO McGEE,
Defendant. __________________________/
ORDER ON DEFENDANT’S MOTION TO SUPPRESS
THIS MATTER came before the Court for evidentiary hearing on January 25, 2004 pursuant to the defendant’s Motion to Suppress. The Court makes the following factual findings based upon the testimony presented. 1) On or about June 27, 2003, Deputy Ron Seraphin, SLCSO, was on routine patrol at approximately 5:00 p.m. when he received a radio dispatch indicating that indicating that a person who may have a warrant for homicide was in a vehicleat/or in the vicinity of BJ’s Lounge at the corner of Juanita Avenue and North 25th Street in Fort Pierce, St. Lucie County, Florida. 2) A description of a 4-door Cadillac was also given as the vehicle in which the alleged unidentified suspect would be located. 3) When the deputy arrived, other law enforcement officers were already on the scene and most likely had the eventual suspect, Derrick Smith, in custody. (Charges against Smith were apparently later dropped.)
4) Deputy Seraphin witnessed the defendant, Ricardo McGee, walking away from the vehicle and ordered him to stop and escorted him back. Deputy Seraphin did not witness the Defendant ever get out of the vehicle. 5) Deputy Seraphin ordered the Defendant to produce identification and testified that when the Defendant reached into his pocket to produce identification a small bag of what he believed to be marijuana fell to the ground. THE COURT FINDS that the Defendant met its initial burden of pleading and establishing a prima facie showing that this was a warrantless, invalid search. The burden then shifted to the State to produce clear and convincing evidence that the warrantless search was legal. THE COURT FINDS that no probable cause existed for the stop and detention of the Defendant. THE COURT FURTHER FINDS that there existed no articulable facts sufficient to create a reasonable suspicion based on Deputy Seraphin’s knowledge and experience that the Defendant was then committing, had committed, or was about to commit a crime. Further, this was not a consensual encounter as the Defendant was not free to leave and was not free to disobey the Deputy’s orders to stop, return to the vehicle and produce identification. It should be noted that Deputy Seraphin did nothing intentionally wrong and had the other officer not already been present with the true suspect, and/or if the Defendant was seen in the vehicle by the Deputy, the outcome may have been different.
However, it is clear that the mere presence of the Defendant in the vicinity of the vehicle in this instance did not justify the stop and eventual seizure. J.P., a Child, v. State, 855 So.2d 1262, (Fla. 4th DCA, 2003); Harris v. State, 790 So.2d 1046 (Fla. 5th DCA, 2001); Belsky v. State, 831 So.2d 803 (Fla. 4th DCA, 2002); Ippolito v. State, 789 So.2d 423 (Fla. 4th DCA, 2001). IT IS THEREFORE, ORDERED AND ADJUDGED that the Defendant’s Motion to Suppress is hereby GRANTED. DONE AND ORDERED this 4th day of February, 2004, in Fort Pierce, St. Lucie County, Florida. /s/ Philip J. Yacucci, Jr. Philip J. Yacucci, Jr. County Court Judge
cc: Jonathan Jay Kirschner, Esq. Jennifer Pemberton, Assistant State Attorney
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