Dydek v. State

349 So.3d 521

Gary Todd DYDEK, Appellant,

v.STATE of Florida, Appellee.

No. 2D21-1275

District Court of Appeal of Florida, Second District.

October 26, 2022

Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Gary Todd Dydek was convicted of drug possession charges after he pleaded no contest while reserving the right to appeal the denial of his dispositive motion to suppress contraband found in a warrantless search of his person. We conclude that the arresting officers’ encounter with Dydek was not consensual and that their seizure and search of him were not justified by a reasonable suspicion that Dydek had committed a crime. Therefore, the circuit court should have granted Dydek's motion to suppress. We reverse his convictions and sentences and remand for dismissal of the charges.

Testimony at the suppression hearing reflected that a housekeeper at a Rodeway Inn in New Port Richey came across a handgun under a pillow in a vacant room. A call was made to the New Port Richey Police Department. When officers arrived to investigate, the gun had already been removed from the room, and the hotel manager handed it to them. The manager told the officers that the room in which the gun was discovered was previously registered to a man and woman who had since moved into another room in the hotel.

The State offered no evidence to show how long the man and woman had occupied the first room, when they had left it, how many beds were in either room, or when either room had been last cleaned. No evidence suggested that the officers examined the room in which the gun was found.

The officers did search a database for the serial number on the firearm and learned that it had been stolen in Pinellas County in an incident that involved several other firearms. The record before the circuit court was silent about any other details of the Pinellas case—no evidence was offered about the circumstances, location or date of the theft, or the identity of any suspects.

The hotel staff showed the officers photos or photocopies of the driver licenses that had been presented by the people who had rented the first room and moved to the second. The man, Keith Vandawalker, was described as white, middle-aged, and of average build and height. A records search for his name disclosed that he was a convicted felon. This, officers claimed, gave them "a little more reasonable suspicion that there was possibly a convicted felon armed with multiple firearms in that [second] hotel room."

One officer then staked out the second room "to get a better vantage point" in order to keep "eyes on the room until [he] had enough officers arrive on the scene and set up in a position where [they] could tactically advance to the room in a safe manner." The officers conceded that there was nothing distinctive about the description of Vandawalker taken from his driver license. There was "nothing that stood out."

Q: So when you were looking for the person, you were just looking for a middle-aged white man?

A: Roughly, yes, ma'am.

An officer testified that eventually a

white male, average build, average height, similar description to Mr. Vandawalker, exit[ed] the room, kind of look[ed] around a little bit, only stay[ed] out of the room, near the front door of the room for maybe 30 seconds to a minute, if I could guess and then re-enter[ed] [sic] the room.

The officers thought this was suspicious. Still, they knew they lacked probable cause to support the issuance of a search or arrest warrant, so they made no attempt to obtain one. They opted instead to "knock on the door and try to make contact – peaceful contact." But their idea of "peaceful contact" was anything but.

The officers recounted that once they were "set up ... with enough officers"—five, to be precise—they got "into position" so that they could "approach safely and tactically." One officer positioned himself on the other side of the hotel pool and trained a rifle on the hotel room. The four others, at least three with drawn handguns, loudly knocked and announced themselves as New Port Richey police. Dydek later testified that he opened the door and saw both the rifle and at least one handgun drawn and at the ready.

The foregoing facts were undisputed. At this point in the scenario the testimony began to vary slightly, but the differences are immaterial for the purpose of our analysis. Either the officers grabbed Dydek and pulled him out of the hotel room, or he hesitantly stepped from the room when they directed him out of it while brandishing firearms. The officers testified that they then "funneled" Dydek down the hallway away from the room and patted him down for weapons, finding none. While this was happening, some officers searched through the room to perform a "protective sweep." They found no other person, no guns, and no contraband.

Meanwhile, Dydek was being physically held a few feet down the hall and was told to put his hands behind his back to be handcuffed. The officer who held Dydek testified that he meant to handcuff him for officer safety. According to the officer, Dydek then turned toward him and pulled one of his hands away. In the officer's words, he "didn't know [Dydek's] intentions," so the officer "took him down to the ground." At that point, the officer testified, Dydek was under arrest for "resisting, obstructing the investigation." Dydek landed on his face, and the officer handcuffed him.

With Dydek restrained, the officers removed his jewelry and searched his pockets. They found and opened a pouch that was belted around his waist. Inside were the illicit drugs that ultimately resulted in the convictions on appeal here.

The State charged Dydek with six counts of possession: of methamphetamine, of cocaine, of fentanyl, of oxycodone, of methylenedioxymethamphetamine, and of marijuana. Initially, Dydek was also charged with obstructing or resisting an officer without violence, but the State later dropped that charge.

As it does on appeal, the State argued at the suppression hearing that Dydek's encounter with the officers was consensual or, alternatively, that the officers had reasonable suspicion sufficient to support a brief investigatory stop under the Florida's Stop and Frisk Law, section 901.151, Florida Statutes (2019) (enacted shortly after the decision in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). When denying the motion, the court made very few factual findings, instead choosing to summarize the testimony before simply announcing that "at this time the motion will be denied." The court did, however, correctly determine that the motion was dispositive. Dydek then pleaded no contest to the possession charges while reserving the right to appeal the denial of the motion to suppress.

On appeal, our review of the circuit court's application of the law to the facts is de novo. Bautista v. State , 902 So. 2d 312, 313-14 (Fla. 2d DCA 2005). However, we must view the evidence in a manner most favorable to sustaining the court's ruling on the motion to suppress. Id. at 314.

It is well-recognized that "[t]here are essentially three levels of police-citizen encounters."

Popple v. State , 626 So. 2d 185, 186 (Fla. 1993). The first is a "consensual encounter." Id. This "involves only minimal police contact," wherein the "citizen may either voluntarily comply with a police officer's requests or choose to ignore them." Id. The second type of encounter is an "investigatory stop," in which police may detain someone temporarily "if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime." Id. The third level of encounter is an arrest, "which must be supported by probable cause that a crime has been or is being committed." Id.

Certainly, the encounter in this case was not consensual. To qualify as consensual, an encounter must be one in which the officer does not "hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries." Id. at 187. Also, an encounter is not consensual if the officer's "show of authority" would lead "a reasonable person [to] conclude that he or she is not free to end the encounter and depart." Id. at 188.

As the Supreme Court of the United States held in United States v. Mendenhall , 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) :

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 (footnote omitted). The officer's subjective intent "is irrelevant except insofar as that may have been conveyed to the [defendant]." Id. at 544 n.6, 100 S.Ct. 1870.

The officers in this case asserted that their "tactical[ ] advance" to perform a knock-and-talk at Dydek's hotel room door was simply a consensual encounter. Generally, a knock-and-talk may be consensual if certain guidelines are followed. Luna-Martinez v. State , 984 So. 2d 592, 598 (Fla. 2d DCA 2008). "In employing this procedure, ‘police officers knock on the door, try to make contact with persons inside, and talk to them about the subject of the complaints’ underlying the investigation." Id. (quoting Murphy v. State , 898 So. 2d 1031, 1032 n.4 (Fla. 5th DCA 2005) ). However,

[t]he key to the legitimacy of the knock-and-talk technique—as well as any other technique

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