Marcos G.

Llobell

Appellate Advocacy – Section 5

Professor Warheit

Final Brief

June 28, 2021

 IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

CASE NO. 3D20-2498

THE STATE OF FLORIDA

Appellant,

-vs.-

JOHN TUCKER

Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR DADE COUNTY
____________________________________________________________

INITIAL BRIEF OF APPELLANT

__________________________________

ASHLEY MOODY
Attorney General
MARCOS G. LLOBELL
Assistant Attorney General
Florida Bar No. ######
Department of Legal Affairs
One S.E. Third Ave., Suite 900
Miami, Florida 33131
(305) 377-5441
CrimAppMIA@MyFloridaLegal.com
 TABLE OF CONTENTS

Page

TABLE OF CITATIONS ……………………………………………………

STATEMENT OF THE CASE AND FACTS …………………………….

SUMMARY OF THE ARGUMENT ………………………………………

ARGUMENT ………………………………………………………….…….

I. THE TRIAL COURT ERRED IN GRANTING THE MOTION

TO SUPPRESS DUE TO APPELLEE ABANDONING THE
JACKET AT ISSUE, THEREFORE RELINQUISHING HIS
REASONABLE EXPECTATION OF PRIVACY, RENDERING
HIM UNABLE TO CHALLENGE THE CONSTITUTIONALITY
OF THE SEARCH AND SEIZURE.

CONCLUSION ……………………………………………………….…….

CERTIFICATE OF SERVICE …………………………………………….

CERTIFICATE OF COMPLIANCE ………………………………………

 TABLE OF CITATIONS

Page

Cases

J.W. v. State,
95 So. 3d 372 (Fla. 3d DCA 2012) …………………………………..

Mori v. State,
662 So. 2d 431 (Fla. 3d DCA 1995) …………………………………

O'Shaughnessy v. State,
420 So. 2d 377 (Fla. 3d DCA 1982) …………………………………

Rakas v. Illinois,
439 U.S. 128 (1978) …………………………………………………..

Seibert v. State,
923 So. 2d 460 (Fla. 2006) ……………………………………………

State v. Hankerson,
65 So. 3d 502 (Fla. 2011) ……………………………………………..

State v. Milewski,
194 So. 3d 376 (Fla. 3d DCA 2016) …………………………………

Strawder v. State,
185 So. 3d 543 (Fla. 3d DCA 2016) …………………………………

Terry v. Ohio,
392 U.S. 1 (1968) ……………………………………………………..

Twilegar v. State,
42 So. 3d 177 (Fla. 2010) ……………………………………………..

Constitutions

Amend. IV, U.S. Const. …………………………………………………….

 STATEMENT OF THE CASE AND FACTS

On July 20, 2020, Appellant, the State of Florida, (“State”), charged

John Tucker, (“Appellee”), with unlawfully in actual or constructive

possession of a controlled substance in violation of § 893.13(6)(a), Florida

Statutes. (Record on Appeal (“R.”) 6). On November 9 th, 2020, the Circuit

Court for the Eleventh Judicial Circuit of Florida granted the Appellee’s

motion to suppress the evidence sought to be admitted in the case as

Appellee argued that his constitutional rights were violated and thus all the

substances seized during the unlawful search should be suppressed. (R. 8-

9). Both counsel for Appellee and counsel for the State agreed that the

conduct by the officer was not proper but the State proclaimed an

abandonment of the property at issue, in a timely filed appeal to the Third

District Court of Appeal in the State of Florida on November 19 th, 2020. (R.

10, 13).

Craig Johnson is an officer employed by the Miami-Dade Police

Department who was on duty the night of the arrest of Appellee which took

place at Al’s Sports Pub located at 8976 Cypress Street. (R. 13-14). Officer

Johnson arrived at the pub around 9:15 pm due to a call from the owner,

Mr. Monaco, to control unruly inebriated customers; he then proceeded to

enter the establishment to notify Mr. Monaco that the situation had been

taken care of. Id. Officer Johnson claims he had noticed Appellee when he

first entered the pub as he noticed Appellee acting suspicious and had a

hunch that something was wrong and unusual as Appellee would nervously

look away when there was eye contact between the two. (R. 15-16).

Shortly after, Officer Johnson proceeded to walk into the back area of

the pub to use the bathroom which is also where the bar was located as

well as where Appellee was seated. Id. As Officer Johnson walked towards

the vicinity of the bathroom, Appellee, at that very moment, stood up from

his seat and proceeded to walk to the back of the pub. (R. 16, 24). The

back of the pub had an exit door and a bathroom door adjacent to each

other. (R. 15). From the viewpoint of the bar, only the exit door can be seen

not the bathroom door. Id. Officer Johnson noticed that Appellee had left a

jacket on the bar stool. He proceeded to ask around who it belonged to,

and the person seated next to Appellee told Officer Johnson that he saw

Appellee walking towards the back of the pub and was not sure where he

went exactly nor if he would even return. (R. 16). From the perspective of

where Appellee was sitting, Officer Johnson could not definitively determine

if Appellee was leaving the establishment or simply using the restroom. (R.

20). However, right in front of where Appellee was seated there was a
glass ¾ full of beer, a couple of napkins and utensils, and no presence of a

credit card or money. Id. Moreover, the baseball game being shown at the

bar was also a close, intense game at this point of the night. (R. 20, 27).

Orville Spring was also seated next to Appellee the night of the

incident. Ms. Spring is a regular at the pub and had come the night of July

20, 2020 to watch a baseball game. (R. 22). Ms. Spring claims that she

also noticed Officer Johnson when he began to walk in their direction; she

then noticed Appellee stand up quickly and walk towards the back of the

bar area. (R. 24). Not knowing if he was returning, she shouted at Appellee

that he left behind his jacket and Appellee simply just responded: “thanks-

it’s ok there”. (R. 25). Officer Johnson asked her if the jacket was hers and

then proceeded to ask Ms. Spring if she knew where Appellee went and if

he was coming back to which she did not know the answer. (R. 25, 27).

Officer Johnson then came to the reasonable conclusion and

assumption that Appellee left the pub in a rush in order to get away from

him thus leaving his jacket behind. (R. 16). Officer Johnson also claims no

one had indicated to him that Appellee would return to his seat nor did he

believe, based on the exigent circumstances, that Appellee was going to

return to the bar. (R. 21). Additionally, Officer Johnson testified that he

would not have looked in Appellee’s jacket if he thought Appellee was

returning. (R. 22). Officer Johnson then proceeded to look inside the jacket

and found a plastic bag with thirty oxycodone tablets. (R. 17, 21). Shortly

thereafter, Officer Johnson noticed Appellee by the back door who was in

fact using the restroom for about 5-10 minutes while the search and seizure

was occurring. He then peacefully read Appellee his Miranda Rights,

escorted him out of the bar, and proceeded to arrest him. (R. 17-18).

Following the testimony of the two witnesses and arguments, the

Circuit Court for the Eleventh Judicial Circuit of Florida decided to grant the

motion to suppress the evidence seized from Appellee’s jacket under

Judge Duran’s ruling. (R. 8-9). A violation of his constitutional expectation

of privacy was claimed by the Appellee under the Fourth Amendment’s

protection from unlawful search and seizures. Id. On November 19, 2020,

the State of Florida filed a Notice of Appeal to the Third District Court of

Appeal to review the order of the Circuit Court for the Eleventh Judicial

Circuit of Florida in granting the Defendant’s Motion to Suppress. (R. 10).

 SUMMARY OF THE ARGUMENT

This Court should reverse the judgment decreed by the Circuit Court

to grant the motion to suppress because Appellee’s jacket was considered

to be abandoned based on the exigent settings. Under the totality of the

circumstances, Appellee relinquished his reasonable expectation of privacy

when he decided to undoubtedly abandon his jacket. As a result, Appellee

cannot challenge the constitutionality of the search and seizure as he

unequivocally and voluntarily parted ways with the property in question.

Concluding that Appellee abandoned the property at issue, he

thereafter lacks standing to challenge the officer’s search and seizure.

Thus, the search of Appellee’s jacket and subsequent seizure of the illegal

substances was reasonable and permissible within the limits of the Fourth

Amendment.
ARGUMENT
 CONCLUSION

Based on the foregoing, Appellant respectfully requests this Court to

reverse the circuit court’s order granting the motion to suppress.

Respectfully submitted,

/s/ Marcos G. Llobell ____

MARCOS G. LLOBELL
Assistant Attorney General
Florida Bar No. ######
Department of Legal Affairs
One S.E. Third Ave., Suite 900
Miami, Florida 33131
(305) 377-5441
crimappMIA@MyFloridaLegal.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Appellant’s

Initial Brief was emailed to Student, Assistant Public Defender, at

AppellateDefender@pdmiami.com on June 28, 2021.

/s/ Marcos G. Llobell

____
Marcos G. Llobell
Assistant Attorney General
 CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Brief is in conformity with all font and

word count requirements of the Florida Rules of Appellate Procedure.

/s/ Marcos G. Llobell ____

Marcos G. Llobell
Assistant Attorney General