3004 River Grove Dr Tampa FL 33610 Ellis Rexwood Curry lawyer [phone] victory in 4th Amendment search case

[LAW CASES]

3004 River Grove Dr Tampa FL 33610 Ellis Rexwood Curry lawyer [phone]
victory in 4th Amendment court opinion
in warrantless search case

TARA UNION v. STATE FLORIDA
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
660 So. 2d 803; 20 Fla. Law W. D 2174


[6] Appeal from the Circuit Court for Pinellas County Judge.
[7] Ellis Rexwood Curry, Tampa, for Appellant.
[8] Robert A. Butterworth, Attorney General, Tallahassee, and Assistant
Attorney General, Tampa, for Appellee.
[9] Parker, A.c.j., and Blue and Fulmer, JJ., Concur.
[10] Author: Per Curiam
[11] Per Curiam.


[12] The defendant, Tara Union, appeals the denial of her motion to
suppress cocaine found in her purse during the search of a car in which she
was a passenger. We reverse because the state failed to prove that the
warrantless search of the car was justified as either a search
incident to arrest or a search based on probable cause.


[13] The following undisputed facts were presented by stipulation. Union
was a passenger in a car also occupied by two men who were involved in a
drug transaction that had been arranged by law enforcement
officers using a confidential informant. The officers had no reason to
believe that Union would be involved in the drug transaction. Union stayed
in the car while the two men went into a hotel room and sold cocaine to the
informant. After the men were arrested, two officers who had observed the
men arriving at the hotel went to search the car which the men had occupied.
When the officers observed Union in the car, they took her out of the car
and searched her purse where they found a trace amount of cocaine.


[14] The state contends that the search of the car and its contents was
proper as either a search incident to the arrest of the two men who made the
drug sale or as a search based on the "automobile exception" established by
the United States Supreme Court in Carroll v. United States, 267 U.S. 132,
45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).*fn1 On the facts presented, neither
of these exceptions to the warrant requirement apply.


[15] We first address the "search-incident-to-arrest" argument. In
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),
the United States Supreme Court held that a lawful arrest justifies the
contemporaneous search without a warrant of the person arrested and of
the immediately surrounding area. In New York v. Belton, 453 U.S. 454, 460,
101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), this exemption
from the warrant requirement was extended to automobiles by the Court's
holding that "when a policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile,"
including any containers found therein. However, unless the arrestee is a
recent occupant of the automobile, the Belton rule does not apply. See
State v. Vanderhorst, 419 So.2d 762 (Fla. 1st DCA 1982).


[16] The determination of whether an arrestee was a recent occupant must
be made on a case by case basis and should be guided by the rationale
underlying the search-incident-to-arrest exception. Therefore, we
examine the facts in this case while keeping in mind the fact that Chimel
permits an arresting officer to conduct a warrantless search "of the
arrestee's person and the area within his immediate control" because of the
need to remove any weapons that the arrestee might seek to use and the need
to prevent the concealment or destruction of evidence. 89 S. Ct. at 2040.


[17] At the time the car was searched, the occupants who were arrested
were in a second floor hotel room some distance away from the car and had
been away from the car for a long enough time to complete a drug sale and be
arrested. While we do not know the exact amount of the
distance or time they were away from the car, we do not need these
measurements to conclude that the car was not within the area of their
immediate control. Thus, the search of the car was too remote in both place
and time to be justified as a search-incident-to-arrest. See also
Patrick v. State, 603 So.2d 640 (Fla. 2d DCA 1992)(arrest of defendant for
urinating in street behind car did not justify warrantless search of
car's interior in absence of evidence that defendant was recent occupant of
car at time of arrest); State v. Howard, 538 So.2d 1279 (Fla. 5th
DCA 1989)(where arrestee had exited and locked car before he was approached
by officer and then arrested, court held search of car was not
incident to arrest).


[18] The state also argues that the officers had probable cause to
believe that the car contained contraband because they knew that the
co-defendants were arriving at the motel for a controlled drug transaction
and witnessed their arrival in the vehicle. The state further argues that
the mobility of the car justified the warrantless search. It is true that
the police may make a warrantless search of a vehicle if there is probable
cause to believe it contains evidence of a crime and it is likely that, due
to exigent circumstances, the vehicle will be unavailable by the time a
warrant is obtained. See Carroll, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct.
280. However, we do not believe that the officers had probable cause
to search the vehicle. There were no facts presented to support a belief
that there would be additional drugs in the car, and we decline to adopt
a presumption that anyone who drives to a location to make a drug sale
leaves additional drugs in the vehicle. Because we conclude there was
no probable cause to believe that the car contained contraband, we need not
address whether there were exigent circumstances to justify a
warrantless search.


[19] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.


[20] PARKER, A.C.J., and BLUE and FULMER, JJ., Concur.


[21] Disposition


[22] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.


Opinion Footnotes


[23] *fn1 If the search of the car was proper under either exception,
then the search of Union's purse was also proper. See State v. Moore, 619
So.2d 376 (Fla. 2d DCA 1993)(after arrest of car's driver, police had the
right to search passenger's purse found on front floorboard);
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982)(the scope of the search under the Carroll exception includes
every part of the automobile and its contents in which contraband or other
evidence of a crime might be expected to be found.)

cited at
http://caselaw.findlaw.com/data2/floridastatecases/app/app2_12_2006/2D05-849rh.pdf

http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/85082D972358688285256DFE0073B014?OpenDocument

http://www.myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/268E1F60C2BE2270852571630067B810?OpenDocument

http://www.4dca.org/Dec2005/12-14-05/4D05-1504.op.pdf

http://statecasefiles.justia.com.s3.amazonaws.com/documents/florida/first-district-court-of-appeal/04-4947.pdf

http://www.law.fsu.edu/library/flsupct/SC92975/92975ini.pdf

[Legal Opinions]

Ellis Rexwood Curry 3004 River Grove Drive Tampa, FL 33610 at [phone]
lawyer win in 4th Amendment search case in court legal opinion
http://www.flhsmv.gov/CASES/White2.html

Office of the Attorney General
AG number: 6009 Style: White vs. State
Jurisdiction: 2nd DCA

AG HEADNOTE
Search and seizure - founded suspicion
Narcotics found during a search must be suppressed because an officer lacked
founded suspicion to stop a vehicle, the 2nd DCA held.
Private security officers contacted police when they were suspicious of a
vehicle driving back and forth in front of a closed marina around 3:30
a.m. As the investigating officer spoke with the guards, she saw the vehicle
drive by. The officer later stopped the vehicle, and a search
revealed marijuana and a firearm. A trial court refused to suppress the
evidence but the DCA reversed, concluding that the totality of the
circumstances did not give rise to a reasonable suspicion that a crime was
about to occur.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

K. D. WHITE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_________________________________ )

Appeal from the Circuit Court for Pinellas County; Judge.

Ellis Rexwood Curry, IV, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Assistant Attorney
General, Tampa, for Appellee.

NORTHCUTT, Acting Chief Judge.

The State charged White with possession of a firearm and possession
of marijuana. White moved to suppress the gun and the drugs,
which were discovered when law enforcement officers stopped his car. The
circuit court denied his motion, and he pleaded no contest to the
charges, reserving the right to appeal his dispositive motion to suppress.
We reverse.

At the hearing on White's motion to suppress, two private security officers
testified that they were working in the area surrounding Maximo
Marina in St. Petersburg on the night White was arrested. At about 3:30
a.m., they noticed a car driving back and forth in front of the marina,
which was closed at the time. The car then turned into the parking lot of an
adjacent motel, which was open for business. At a second hearing on
the motion, the motel's security guard testified that he also observed the
car, which was moving, but had its lights turned off. The car pulled into a
parking space. When this security guard approached the car, one of the
occupants shouted profanities at him. While the occupant's remarks
were not threatening, the security guard felt "a little bit" threatened. The
car then drove away.

The motel's security guard contacted the St. Petersburg police department,
and Officer Marian Schmidt arrived to investigate. She was
speaking with the security guards when the suspicious car drove by on a
public street next to the motel and marina property. Officer Schmidt
pursued the car and stopped it. She smelled marijuana, placed White and his
passenger in her patrol car, and discovered marijuana cigarettes
in the car's ashtray and a gun on the passenger-side front floorboard. White
was arrested and charged with the previously-mentioned crimes.
Officer Schmidt did not have the requisite "well-founded, articulable
suspicion of criminal activity" necessary to support a traffic stop. See
Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). To justify an
investigatory stop, law enforcement must have a reasonable suspicion that
the
person has committed, is committing or is about to commit a crime. See id.;
see also ' 901.151(2), Fla. Stat. (1995). The testimony at the
suppression hearing showed that businesses in the area had been robbed at
some indeterminate time in the past. But no recent crime had
occurred, so the stop could not be justified by a suspicion that White or
his passenger were the perpetrators. Cf. Grant v. State, 718 So. 2d 238
(Fla. 2d DCA 1998) (upholding a stop where a car was driving without its
headlights, up and down a small street where a burglary had occurred
mere hours earlier). None of White's activities described at the hearing
could give rise to a belief that he was actually committing a crime. Any
suspicion that he was about to commit one was dissipated when he drove away
from the businesses, and no evidence showed that White's car
was returning to the business area when the guards spotted it driving down a
public street.

The totality of the circumstances in this case did not give rise to a
reasonable suspicion that criminal activity was afoot. The officer's stop of
White's car was improper, and all evidence seized as a result of the stop
should have been suppressed. We reverse White's convictions, and
we remand with directions to discharge him.

Reversed and remanded.

GREEN and SALCINES, JJ., Concur.

Post by LAW CASES
3004 River Grove Dr Tampa FL 33610 Ellis Rexwood Curry lawyer (813)
238-5371 victory in 4th Amendment court opinion
in warrantless search case
TARA UNION v. STATE FLORIDA
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
660 So. 2d 803; 20 Fla. Law W. D 2174
[6] Appeal from the Circuit Court for Pinellas County Judge.
[7] Ellis Rexwood Curry, Tampa, for Appellant.
[8] Robert A. Butterworth, Attorney General, Tallahassee, and
Assistant Attorney General, Tampa, for Appellee.
[9] Parker, A.c.j., and Blue and Fulmer, JJ., Concur.
[10] Author: Per Curiam
[11] Per Curiam.
[12] The defendant, Tara Union, appeals the denial of her motion to
suppress cocaine found in her purse during the search of a car in which
she was a passenger. We reverse because the state failed to prove that the
warrantless search of the car was justified as either a search
incident to arrest or a search based on probable cause.
[13] The following undisputed facts were presented by stipulation. Union
was a passenger in a car also occupied by two men who were involved in a
drug transaction that had been arranged by law enforcement
officers using a confidential informant. The officers had no reason to
believe that Union would be involved in the drug transaction. Union stayed
in the car while the two men went into a hotel room and sold cocaine to
the informant. After the men were arrested, two officers who had observed
the men arriving at the hotel went to search the car which the men had
occupied. When the officers observed Union in the car, they took her out
of the car and searched her purse where they found a trace amount of
cocaine.
[14] The state contends that the search of the car and its contents was
proper as either a search incident to the arrest of the two men who made
the drug sale or as a search based on the "automobile exception"
established by the United States Supreme Court in Carroll v. United
States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).*fn1 On the
facts presented, neither of these exceptions to the warrant requirement
apply.
[15] We first address the "search-incident-to-arrest" argument. In
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),
the United States Supreme Court held that a lawful arrest justifies the
contemporaneous search without a warrant of the person arrested and of
the immediately surrounding area. In New York v. Belton, 453 U.S. 454, 460,
101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), this exemption
from the warrant requirement was extended to automobiles by the Court's
holding that "when a policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile,"
including any containers found therein. However, unless the arrestee is a
recent occupant of the automobile, the Belton rule does not apply. See
State v. Vanderhorst, 419 So.2d 762 (Fla. 1st DCA 1982).
[16] The determination of whether an arrestee was a recent occupant must
be made on a case by case basis and should be guided by the rationale
underlying the search-incident-to-arrest exception. Therefore, we
examine the facts in this case while keeping in mind the fact that Chimel
permits an arresting officer to conduct a warrantless search "of the
arrestee's person and the area within his immediate control" because of
the need to remove any weapons that the arrestee might seek to use and the
need to prevent the concealment or destruction of evidence. 89 S. Ct. at
2040.
[17] At the time the car was searched, the occupants who were arrested
were in a second floor hotel room some distance away from the car and had
been away from the car for a long enough time to complete a drug sale and
be arrested. While we do not know the exact amount of the
distance or time they were away from the car, we do not need these
measurements to conclude that the car was not within the area of their
immediate control. Thus, the search of the car was too remote in both place
and time to be justified as a search-incident-to-arrest. See also
Patrick v. State, 603 So.2d 640 (Fla. 2d DCA 1992)(arrest of defendant for
urinating in street behind car did not justify warrantless search of
car's interior in absence of evidence that defendant was recent occupant of
car at time of arrest); State v. Howard, 538 So.2d 1279 (Fla. 5th
DCA 1989)(where arrestee had exited and locked car before he was approached
by officer and then arrested, court held search of car was not
incident to arrest).
[18] The state also argues that the officers had probable cause to
believe that the car contained contraband because they knew that the
co-defendants were arriving at the motel for a controlled drug transaction
and witnessed their arrival in the vehicle. The state further argues that
the mobility of the car justified the warrantless search. It is true that
the police may make a warrantless search of a vehicle if there is probable
cause to believe it contains evidence of a crime and it is likely that, due
to exigent circumstances, the vehicle will be unavailable by the time a
warrant is obtained. See Carroll, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct.
280. However, we do not believe that the officers had probable cause
to search the vehicle. There were no facts presented to support a belief
that there would be additional drugs in the car, and we decline to adopt
a presumption that anyone who drives to a location to make a drug sale
leaves additional drugs in the vehicle. Because we conclude there was
no probable cause to believe that the car contained contraband, we need not
address whether there were exigent circumstances to justify a
warrantless search.
[19] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.
[20] PARKER, A.C.J., and BLUE and FULMER, JJ., Concur.
[21] Disposition
[22] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.
Opinion Footnotes
[23] *fn1 If the search of the car was proper under either exception,
then the search of Union's purse was also proper. See State v. Moore, 619
So.2d 376 (Fla. 2d DCA 1993)(after arrest of car's driver, police had the
right to search passenger's purse found on front floorboard);
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982)(the scope of the search under the Carroll exception includes
every part of the automobile and its contents in which contraband or other
evidence of a crime might be expected to be found.)
cited at
http://caselaw.findlaw.com/data2/floridastatecases/app/app2_12_2006/2D05-849rh.pdf
http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/85082D972358688285256DFE0073B014?OpenDocument
http://www.myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/268E1F60C2BE2270852571630067B810?OpenDocument
http://www.4dca.org/Dec2005/12-14-05/4D05-1504.op.pdf
http://statecasefiles.justia.com.s3.amazonaws.com/documents/florida/first-district-court-of-appeal/04-4947.pdf
http://www.law.fsu.edu/library/flsupct/SC92975/92975ini.pdf

[legal news]

Ellis Rexwood Curry 3004 River Grove Drive Tampa, FL 33610 at (813)
238-5371 win in plea agreement litigation regarding possession of a firearm.

United States v. Romano 314 F.3d 1279 (11th 2002) - The Government properly
concedes that appellant was denied the entire benefit of his plea agreement
because it breached the agreement when the prosecutor strongly endorsed the
probations officer's recommendation (in the PSI) that the court enhance
appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the
Guidelines. The breach bore fruit, in the form of error, in that the two
sections related to conduct wholly unrelated to the offense to which
appellant had plead guilty, possession of a firearm by a convicted felon.
The prosecutor knew that the application of those sections would constitute
error. What's more, he knew that by urging the court to apply them, he -
that is, the Government - was breaching the plea agreement then and there.
And, he must have known that because he was an officer of the court, who
regularly appeared before the court as an attorney for the United States,
the court might be inclined to accept his representations as reliable, as
constituting a correct statement of the law, and act accordingly - which,
indeed, is exactly what the court did. We therefore vacate the district
court's judgment, and remand the case for a new sentencing hearing. VACATED
and REMANDED, for further proceedings.

2002 U.S. App. LEXIS 26427,*;16 Fla. L. Weekly Fed. C 130
http://laws.lp.findlaw.com/11th/0011505opn.html
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://openjurist.org/314/f3d/1279/united-states-v-romano
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://scholar.google.com/scholar_case?case=14620769958996613040
...................................................

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROMANO,
Defendant-Appellant.

No. 00-11505

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

2002 U.S. App. LEXIS 26427;16 Fla. L. Weekly Fed. C 130

December 20, 2002, Decided

December 20, 2002, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the
Middle District of Florida. D. C. Docket No. 99-00208-CR-ORL-22-B. Anne C.
Conway, Judge.

DISPOSITION: Vacated and remanded.

COUNSEL: For Romano, Appellant: Ellis Rexwood Curry, Attorney at Law,
Tampa, FL.

For United States of America, Appellee: U.S. Attorney's Office, M.D. of
Florida, Tampa, FL. Assistant U.S. Attorney/Middle Dist. of FL, Orlando, FL.
United States Attorney's Office, Jacksonville, FL.

JUDGES: Before TJOFLAT, RONEY and FAY, Circuit Judges.

OPINIONBY: TJOFLAT

OPINION: TJOFLAT, Circuit Judge:

On October 19, 1999, a Middle District of Florida grand jury returned a
two-count indictment against appellant, charging him, in Count One, with
possession of a Ruger Mini-14 .223 caliber semi-automatic rifle in September
1998, (n1, footnote 1) after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1), and, in Count Two, with possession of a
destructive device on May 11, 1998, that had not been registered to
appellant in the National Firearms Registration and Transfer Records, in
violation of 26 U.S.C. §§ 5841, 5845(a)(8), (f), 5861(d), and 5871.

On December 16, 1999, pursuant to a plea agreement, appellant pled guilty to
the Count One offense, and agreed to pay $ 400 in restitution to Diane
Setordepour. In the agreement, the Government promised not to oppose at
sentencing appellant's requests that: (1) the court set the base offense
level at level 14, pursuant to United States Sentencing Commission,
Guidelines Manual, § 2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm by
a "prohibited person"); (2) that the court adjust the base offense level to
level 19 pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A)(offense involving 3-4
firearms), 2K2.1(b)(4) (offense involving a stolen firearm), and 3B1.4
(using a minor to commit a crime); and (3) that the court adjust level 19
downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1,
provided that subsequent adverse information did not render such adjustment
"unwarranted."

In the Presentence Investigation Report (PSI), the probation officer
assigned to the case fixed the base offense level of the Count One offense
at 14 and adjusted it upward to level 19, all in conformance with the plea
agreement. The PSI, however, made two other adjustments - each providing a
two-level [*3] increase of the base offense level - which the parties had
not contemplated, because they related to the Count Two offense, which would
be dismissed at sentencing. The probation officer made these adjustments
pursuant to U.S.S.G. § 2K2.1(b)(3), because the "offense" involved a
destructive device, and U.S.S.G. § 3C1.1, because appellant had obstructed
justice. Since the probation officer gave appellant no credit for acceptance
of responsibility, the PSI set the adjusted offense level at level 23.
Coupled with a criminal history score of V, the Guidelines prescribed a
prison sentence for a term of somewhere between 84 to 105 months.

Appellant interposed several objections to the PSI, among them that the
adjusted offense level should not have included the two-level increases
provided by sections 2K2.1(b)(3) and 3C1.1, since those increases were based
on conduct involved in the Count Two offense, which was to be dismissed. The
probation officer (who prepared the PSI) stated in the Addendum to the PSI
that, due to the constraints of time, he had been unable to hold a "position
of parties meeting" (for the purpose of discussing appellant's objections).
Because he had been unable to hold [*4] the meeting, the probation
officer, in the Addendum, adhered to the PSI as written, noting that the
Government "agreed" with his use of sections 2K2.1(b)(3) and 3C1.1 to
enhance the base offense level.

At the sentencing hearing, appellant renewed his objection to the sections
2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to the
Count Two offense and, therefore, were irrelevant. The prosecutor
acknowledged that, in negotiating the plea agreement, the parties had not
contemplated that appellant's base offense level would be enhanced for
conduct that related not to Count One, but to Count Two, which was not
before the court. The prosecutor nonetheless urged the court to apply the
two Guidelines enhancements, and the court did so. In addition, the
prosecutor urged the court to depart upwardly from the Guildelines sentence
range (recommended in the PSI) on the ground that "a criminal history
category of five does not adequately represent the defendant's prior
criminal conduct . . . we are suggesting . . . that there is a basis to move
up to the next level on a guided departure to a criminal history category of
six." After saying this, the prosecutor proceeded to [*5] argue at length
(in five pages of the sentencing transcript) why the court should depart.
The court rejected the prosecutor's request, adopted the factual recitations
of the PSI and the Guidelines sentence range it prescribed, and, after
affording appellant his right of allocution, sentenced him to a prison term
of 105 months and dismissed Count Two of the indictment. Six days after the
court imposed sentence, the prosecutor moved the court to order appellant to
make the restitution called for in the plea agreement. Twenty-three days
later, the court entered the requested restitution order.

In this appeal, appellant contends that the Government breached the plea
agreement by urging the court to consider information wholly unrelated to
the Count One offense and, based on such information, to enhance the Count
One base offense level by a total of four levels pursuant to sections
2K2.1(b)(3) and 3C1.1 of the Guidelines. In response, the Government notes
that appellant failed to raise this issue before the district court. The
Government is right; hence, we review appellant's contention for plain
error. We note plain error if (1) error occurred, (2) the error is plain,
(3) affects the [*6] defendant's substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Candelario, 240 F.3d 1300, 1308-09 (11th
Cir.), cert. denied, 533 U.S. 922, 121 S. Ct. 2535, 150 L. Ed. 2d 705
(2001).

The Government properly concedes that appellant was denied the entire
benefit of his plea agreement because it breached the agreement when the
prosecutor strongly endorsed the probations officer's recommendation (in the
PSI) that the court enhance appellant's base offense level under sections
2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form
of error, in that the two sections related to conduct wholly unrelated to
the offense to which appellant had plead guilty, possession of a firearm by
a convicted felon. The prosecutor knew that the application of those
sections would constitute error. What's more, he knew that by urging the
court to apply them, he - that is, the Government - was breaching the plea
agreement then and there. And, he must have known that because he was an
officer of the court, who regularly appeared before the court as an attorney
for the United [*7] States, the court might be inclined to accept his
representations as reliable, as constituting a correct statement of the law,
and act accordingly - which, indeed, is exactly what the court did. n2

We therefore vacate the district court's judgment, and remand the case for a
new sentencing hearing. n3

VACATED and REMANDED, for further proceedings.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -

n1 footnote 1 Such possession began on September 26, 1998 and ended on
October 4, 1998, when appellant voluntarily surrendered the semi-automatic
rifle firearm (along with two other firearms) to deputies of the Orange
County, Florida sheriff's office.

n2 The prosecutor's final act - in his effort to obtain a sentence far
beyond what the parties contemplated when they executed the plea agreement -
was to urge the court to depart from the Guidelines sentence range, by
increasing appellant's criminal history category from V to VI. United States
v. Burns, 501 U.S. 129, 139, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123
(1991), teaches that the defendant must be given "reasonable notice" that
the court is contemplating an upward departure from the Guidelines sentence
range. In United States v. Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001),
we explained Burns as follows:

"This notice must specifically identify the ground on which the district
court is contemplating an upward departure." [Burns, 501 U.S.] at 138-39,
111 S. Ct. at 2182. This Court has held that Burns requires that the notice
"must affirmatively indicate that an upward departure is appropriate based
on a particular ground" and that the defendant must be provided with notice
"setting forth the potential ground (or grounds) for the upward departure
within a 'reasonable' amount of time prior to the sentencing hearing."
United States v. Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).

In this case, the court had not provided appellant with notice that it was
considering a departure. Thus, had the court bowed to the prosecutor's
urging and departed from the prescribed Guidelines sentence range, the court
would have committed error that was plain. As noted above, though, the court
declined the prosecutor's invitation.

- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - - [*8]

Because the error was "plain," we must ask whether it affected appellant's
substantial rights. The sentence range the Guidelines prescribes for an
offense level of 23 (the level the court used) and a criminal history
category of V is 84 to 105 months. The sentence range prescribed by an
offense level of 19 - the level yielded by omitting the section 2K2.1(b)(3)
and 3C1.1 enhancements - is 57 to 71 months. We have no difficulty in
concluding that the use of the higher sentence range affected appellant's
substantial rights. Finally, we ask whether the plain error seriously
affected the fairness, integrity, or public reputation of the judicial
proceedings. More specifically, the question is whether the prosecutor's
conduct produced such affect. We think it obvious that it did.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -

n3 Appellant challenges the court's untimely entry of the restitution order.
Given our disposition, we need not deal with the restitution aspect of the
case. The court, on remand, should consider the restitution issue anew.
Appellant also contends that he received ineffective assistance at
sentencing. His claim is moot; moreover, such claims should be brought in a
collateral proceeding under 28 U.S.C. § 2255.

- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - - [*9]


US v. Romano, 314 F.3d 1279 (11th Cir. 2002)
http://scholar.google.com/scholar_case?case=14620769958996613040&q=related:sBeyRNBo58oJ:scholar.google.com/&hl=en&as_sdt=40000

The above case was also cited by 7 other cases
US v. De La Garza, 516 F. 3d 1266 (11th Cir. 2008)
http://scholar.google.com/scholar_case?case=11228292603546889&hl=en&as_sdt=40000

US v. Velez, 357 F. 3d 239 (2nd Cir. 2004)
http://scholar.google.com/scholar_case?case=4277013719399623869&hl=en&as_sdt=40000

United States v. Woody Daniel Franklin, No. 07-14087 (11th Cir. May 29,
2008)
http://scholar.google.com/scholar_case?case=3081806861712917416&hl=en&as_sdt=40000

United States v. Yasmani Lazo, No. 08-10681 (11th Cir. August 8, 2008)
http://scholar.google.com/scholar_case?case=249649997400426391&hl=en&as_sdt=40000

US v. Geronimo Enrique Gastelum, No. 09-11440 (11th Cir. November 17, 2009)
http://scholar.google.com/scholar_case?case=17876269408864668597&hl=en&as_sdt=40000

United States v. Damaris Cruz, No. 08-10673 (11 Cir. November 17, 2008)
http://scholar.google.com/scholar_case?case=2452031652210934650&hl=en&as_sdt=40000

"Because De La Garza failed to raise this issue before the district court,
however, we review for plain error."
- in US v. De La Garza, 2008 and 2 similar citations
"Under plain error review, there must be (1) an error,(2) that is plain,(3)
that affects the defendant's substantial rights, and (4) that seriously
affects the fairness, integrity, or public reputation of judicial
proceedings." - in US v. Gastelum, 2009 and one similar citation
"Moreover, even if the government's change in position regarding an
adjustment for acceptance of responsibility did constitute a breach of the
plea agreement, Lazo has not shown plain error-the standard applicable here
because Lazo did not voice any objection below to the government's alleged
breach of the plea agreement."
- in United States v. Lazo, 2008
"We review an argument that the government breached a plea agreement, raised
for the first time on appeal, for plain error."
- in United States v. Cruz, 2008

Post by Legal Opinions
Ellis Rexwood Curry 3004 River Grove Drive Tampa, FL 33610 at (813)
238-5371 lawyer win in 4th Amendment search case in court legal opinion
http://www.flhsmv.gov/CASES/White2.html
Office of the Attorney General
AG number: 6009 Style: White vs. State
Jurisdiction: 2nd DCA
AG HEADNOTE
Search and seizure - founded suspicion
Narcotics found during a search must be suppressed because an officer lacked
founded suspicion to stop a vehicle, the 2nd DCA held.
Private security officers contacted police when they were suspicious of a
vehicle driving back and forth in front of a closed marina around 3:30
a.m. As the investigating officer spoke with the guards, she saw the vehicle
drive by. The officer later stopped the vehicle, and a search
revealed marijuana and a firearm. A trial court refused to suppress the
evidence but the DCA reversed, concluding that the totality of the
circumstances did not give rise to a reasonable suspicion that a crime was
about to occur.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
K. D. WHITE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_________________________________ )
Appeal from the Circuit Court for Pinellas County; Judge.
Ellis Rexwood Curry, IV, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Assistant
Attorney General, Tampa, for Appellee.
NORTHCUTT, Acting Chief Judge.
The State charged White with possession of a firearm and possession
of marijuana. White moved to suppress the gun and the drugs,
which were discovered when law enforcement officers stopped his car. The
circuit court denied his motion, and he pleaded no contest to the
charges, reserving the right to appeal his dispositive motion to suppress.
We reverse.
At the hearing on White's motion to suppress, two private security officers
testified that they were working in the area surrounding Maximo
Marina in St. Petersburg on the night White was arrested. At about 3:30
a.m., they noticed a car driving back and forth in front of the marina,
which was closed at the time. The car then turned into the parking lot of an
adjacent motel, which was open for business. At a second hearing on
the motion, the motel's security guard testified that he also observed the
car, which was moving, but had its lights turned off. The car pulled into a
parking space. When this security guard approached the car, one of the
occupants shouted profanities at him. While the occupant's remarks
were not threatening, the security guard felt "a little bit" threatened. The
car then drove away.
The motel's security guard contacted the St. Petersburg police department,
and Officer Marian Schmidt arrived to investigate. She was
speaking with the security guards when the suspicious car drove by on a
public street next to the motel and marina property. Officer Schmidt
pursued the car and stopped it. She smelled marijuana, placed White and his
passenger in her patrol car, and discovered marijuana cigarettes
in the car's ashtray and a gun on the passenger-side front floorboard. White
was arrested and charged with the previously-mentioned crimes.
Officer Schmidt did not have the requisite "well-founded, articulable
suspicion of criminal activity" necessary to support a traffic stop. See
Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). To justify an
investigatory stop, law enforcement must have a reasonable suspicion that
the
person has committed, is committing or is about to commit a crime. See id.;
see also ' 901.151(2), Fla. Stat. (1995). The testimony at the
suppression hearing showed that businesses in the area had been robbed at
some indeterminate time in the past. But no recent crime had
occurred, so the stop could not be justified by a suspicion that White or
his passenger were the perpetrators. Cf. Grant v. State, 718 So. 2d 238
(Fla. 2d DCA 1998) (upholding a stop where a car was driving without its
headlights, up and down a small street where a burglary had occurred
mere hours earlier). None of White's activities described at the hearing
could give rise to a belief that he was actually committing a crime. Any
suspicion that he was about to commit one was dissipated when he drove away
from the businesses, and no evidence showed that White's car
was returning to the business area when the guards spotted it driving down a
public street.
The totality of the circumstances in this case did not give rise to a
reasonable suspicion that criminal activity was afoot. The officer's stop of
White's car was improper, and all evidence seized as a result of the stop
should have been suppressed. We reverse White's convictions, and
we remand with directions to discharge him.
Reversed and remanded.
GREEN and SALCINES, JJ., Concur.

Post by LAW CASES
3004 River Grove Dr Tampa FL 33610 Ellis Rexwood Curry lawyer (813)
238-5371 victory in 4th Amendment court opinion
in warrantless search case
TARA UNION v. STATE FLORIDA
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
660 So. 2d 803; 20 Fla. Law W. D 2174
[6] Appeal from the Circuit Court for Pinellas County Judge.
[7] Ellis Rexwood Curry, Tampa, for Appellant.
[8] Robert A. Butterworth, Attorney General, Tallahassee, and
Assistant Attorney General, Tampa, for Appellee.
[9] Parker, A.c.j., and Blue and Fulmer, JJ., Concur.
[10] Author: Per Curiam
[11] Per Curiam.
[12] The defendant, Tara Union, appeals the denial of her motion to
suppress cocaine found in her purse during the search of a car in which
she was a passenger. We reverse because the state failed to prove that
the warrantless search of the car was justified as either a search
incident to arrest or a search based on probable cause.
[13] The following undisputed facts were presented by stipulation. Union
was a passenger in a car also occupied by two men who were involved in a
drug transaction that had been arranged by law enforcement
officers using a confidential informant. The officers had no reason to
believe that Union would be involved in the drug transaction. Union
stayed in the car while the two men went into a hotel room and sold
cocaine to the informant. After the men were arrested, two officers who
had observed the men arriving at the hotel went to search the car which
the men had occupied. When the officers observed Union in the car, they
took her out of the car and searched her purse where they found a trace
amount of cocaine.
[14] The state contends that the search of the car and its contents was
proper as either a search incident to the arrest of the two men who made
the drug sale or as a search based on the "automobile exception"
established by the United States Supreme Court in Carroll v. United
States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).*fn1 On the
facts presented, neither of these exceptions to the warrant requirement
apply.
[15] We first address the "search-incident-to-arrest" argument. In
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),
the United States Supreme Court held that a lawful arrest justifies the
contemporaneous search without a warrant of the person arrested and of
the immediately surrounding area. In New York v. Belton, 453 U.S. 454, 460,
101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), this exemption
from the warrant requirement was extended to automobiles by the Court's
holding that "when a policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile,"
including any containers found therein. However, unless the arrestee is a
recent occupant of the automobile, the Belton rule does not apply. See
State v. Vanderhorst, 419 So.2d 762 (Fla. 1st DCA 1982).
[16] The determination of whether an arrestee was a recent occupant must
be made on a case by case basis and should be guided by the rationale
underlying the search-incident-to-arrest exception. Therefore, we
examine the facts in this case while keeping in mind the fact that Chimel
permits an arresting officer to conduct a warrantless search "of the
arrestee's person and the area within his immediate control" because of
the need to remove any weapons that the arrestee might seek to use and
the need to prevent the concealment or destruction of evidence. 89 S. Ct.
at 2040.
[17] At the time the car was searched, the occupants who were arrested
were in a second floor hotel room some distance away from the car and had
been away from the car for a long enough time to complete a drug sale and
be arrested. While we do not know the exact amount of the
distance or time they were away from the car, we do not need these
measurements to conclude that the car was not within the area of their
immediate control. Thus, the search of the car was too remote in both place
and time to be justified as a search-incident-to-arrest. See also
Patrick v. State, 603 So.2d 640 (Fla. 2d DCA 1992)(arrest of defendant for
urinating in street behind car did not justify warrantless search of
car's interior in absence of evidence that defendant was recent occupant of
car at time of arrest); State v. Howard, 538 So.2d 1279 (Fla. 5th
DCA 1989)(where arrestee had exited and locked car before he was approached
by officer and then arrested, court held search of car was not
incident to arrest).
[18] The state also argues that the officers had probable cause to
believe that the car contained contraband because they knew that the
co-defendants were arriving at the motel for a controlled drug
transaction and witnessed their arrival in the vehicle. The state further
argues that
the mobility of the car justified the warrantless search. It is true that
the police may make a warrantless search of a vehicle if there is probable
cause to believe it contains evidence of a crime and it is likely that, due
to exigent circumstances, the vehicle will be unavailable by the time a
warrant is obtained. See Carroll, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct.
280. However, we do not believe that the officers had probable cause
to search the vehicle. There were no facts presented to support a belief
that there would be additional drugs in the car, and we decline to adopt
a presumption that anyone who drives to a location to make a drug sale
leaves additional drugs in the vehicle. Because we conclude there was
no probable cause to believe that the car contained contraband, we need not
address whether there were exigent circumstances to justify a
warrantless search.
[19] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.
[20] PARKER, A.C.J., and BLUE and FULMER, JJ., Concur.
[21] Disposition
[22] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.
Opinion Footnotes
[23] *fn1 If the search of the car was proper under either exception,
then the search of Union's purse was also proper. See State v. Moore, 619
So.2d 376 (Fla. 2d DCA 1993)(after arrest of car's driver, police had the
right to search passenger's purse found on front floorboard);
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982)(the scope of the search under the Carroll exception includes
every part of the automobile and its contents in which contraband or other
evidence of a crime might be expected to be found.)
cited at
http://caselaw.findlaw.com/data2/floridastatecases/app/app2_12_2006/2D05-849rh.pdf
http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/85082D972358688285256DFE0073B014?OpenDocument
http://www.myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/268E1F60C2BE2270852571630067B810?OpenDocument
http://www.4dca.org/Dec2005/12-14-05/4D05-1504.op.pdf
http://statecasefiles.justia.com.s3.amazonaws.com/documents/florida/first-district-court-of-appeal/04-4947.pdf
http://www.law.fsu.edu/library/flsupct/SC92975/92975ini.pdf

[m***@gmail.com]

Post by LAW CASES
3004 River Grove Dr Tampa FL 33610 Ellis Rexwood Curry lawyer [phone]
victory in 4th Amendment court opinion
in warrantless search case
TARA UNION v. STATE FLORIDA
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
660 So. 2d 803; 20 Fla. Law W. D 2174
[6] Appeal from the Circuit Court for Pinellas County Judge.
[7] Ellis Rexwood Curry, Tampa, for Appellant.
[8] Robert A. Butterworth, Attorney General, Tallahassee, and Assistant
Attorney General, Tampa, for Appellee.
[9] Parker, A.c.j., and Blue and Fulmer, JJ., Concur.
[10] Author: Per Curiam
[11] Per Curiam.
[12] The defendant, Tara Union, appeals the denial of her motion to
suppress cocaine found in her purse during the search of a car in which she
was a passenger. We reverse because the state failed to prove that the
warrantless search of the car was justified as either a search
incident to arrest or a search based on probable cause.
[13] The following undisputed facts were presented by stipulation. Union
was a passenger in a car also occupied by two men who were involved in a
drug transaction that had been arranged by law enforcement
officers using a confidential informant. The officers had no reason to
believe that Union would be involved in the drug transaction. Union stayed
in the car while the two men went into a hotel room and sold cocaine to the
informant. After the men were arrested, two officers who had observed the
men arriving at the hotel went to search the car which the men had occupied.
When the officers observed Union in the car, they took her out of the car
and searched her purse where they found a trace amount of cocaine.
[14] The state contends that the search of the car and its contents was
proper as either a search incident to the arrest of the two men who made the
drug sale or as a search based on the "automobile exception" established by
the United States Supreme Court in Carroll v. United States, 267 U.S. 132,
45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).*fn1 On the facts presented, neither
of these exceptions to the warrant requirement apply.
[15] We first address the "search-incident-to-arrest" argument. In
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),
the United States Supreme Court held that a lawful arrest justifies the
contemporaneous search without a warrant of the person arrested and of
the immediately surrounding area. In New York v. Belton, 453 U.S. 454, 460,
101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), this exemption
from the warrant requirement was extended to automobiles by the Court's
holding that "when a policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile,"
including any containers found therein. However, unless the arrestee is a
recent occupant of the automobile, the Belton rule does not apply. See
State v. Vanderhorst, 419 So.2d 762 (Fla. 1st DCA 1982).
[16] The determination of whether an arrestee was a recent occupant must
be made on a case by case basis and should be guided by the rationale
underlying the search-incident-to-arrest exception. Therefore, we
examine the facts in this case while keeping in mind the fact that Chimel
permits an arresting officer to conduct a warrantless search "of the
arrestee's person and the area within his immediate control" because of the
need to remove any weapons that the arrestee might seek to use and the need
to prevent the concealment or destruction of evidence. 89 S. Ct. at 2040.
[17] At the time the car was searched, the occupants who were arrested
were in a second floor hotel room some distance away from the car and had
been away from the car for a long enough time to complete a drug sale and be
arrested. While we do not know the exact amount of the
distance or time they were away from the car, we do not need these
measurements to conclude that the car was not within the area of their
immediate control. Thus, the search of the car was too remote in both place
and time to be justified as a search-incident-to-arrest. See also
Patrick v. State, 603 So.2d 640 (Fla. 2d DCA 1992)(arrest of defendant for
urinating in street behind car did not justify warrantless search of
car's interior in absence of evidence that defendant was recent occupant of
car at time of arrest); State v. Howard, 538 So.2d 1279 (Fla. 5th
DCA 1989)(where arrestee had exited and locked car before he was approached
by officer and then arrested, court held search of car was not
incident to arrest).
[18] The state also argues that the officers had probable cause to
believe that the car contained contraband because they knew that the
co-defendants were arriving at the motel for a controlled drug transaction
and witnessed their arrival in the vehicle. The state further argues that
the mobility of the car justified the warrantless search. It is true that
the police may make a warrantless search of a vehicle if there is probable
cause to believe it contains evidence of a crime and it is likely that, due
to exigent circumstances, the vehicle will be unavailable by the time a
warrant is obtained. See Carroll, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct.
280. However, we do not believe that the officers had probable cause
to search the vehicle. There were no facts presented to support a belief
that there would be additional drugs in the car, and we decline to adopt
a presumption that anyone who drives to a location to make a drug sale
leaves additional drugs in the vehicle. Because we conclude there was
no probable cause to believe that the car contained contraband, we need not
address whether there were exigent circumstances to justify a
warrantless search.
[19] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.
[20] PARKER, A.C.J., and BLUE and FULMER, JJ., Concur.
[21] Disposition
[22] Accordingly, the motion to suppress should have been granted. The
case is reversed and remanded with instructions to discharge the defendant.
Opinion Footnotes
[23] *fn1 If the search of the car was proper under either exception,
then the search of Union's purse was also proper. See State v. Moore, 619
So.2d 376 (Fla. 2d DCA 1993)(after arrest of car's driver, police had the
right to search passenger's purse found on front floorboard);
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982)(the scope of the search under the Carroll exception includes
every part of the automobile and its contents in which contraband or other
evidence of a crime might be expected to be found.)
cited at
http://caselaw.findlaw.com/data2/floridastatecases/app/app2_12_2006/2D05-849rh.pdf
http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/85082D972358688285256DFE0073B014?OpenDocument
http://www.myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/268E1F60C2BE2270852571630067B810?OpenDocument
http://www.4dca.org/Dec2005/12-14-05/4D05-1504.op.pdf
http://statecasefiles.justia.com.s3.amazonaws.com/documents/florida/first-district-court-of-appeal/04-4947.pdf
http://www.law.fsu.edu/library/flsupct/SC92975/92975ini.pdf

Ellis Curry IV of 3004 River Grove Drive Tampa, FL 33610 [phone]

"Curry is one of the best lawyers you could ever hope to find. He understands the legal system. I do not mean, well you have a Judge and a Jury and there is opposing council and discovery and then you present your case etc. etc. No he understands it all the way to the not always pretty underbelly. School gave him a piece of paper. His experience came from the trenches." - Gary Matheson, Telecommunications Consultant and Contractor, on Linkedin.com http://www.linkedin.com/in/rexcurry1

Rex Curry http://members.ij.net/rex/index-expert-witness-law-spring2008.html

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