Danson Exantus-Barr v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DANSON EXANTUS-BARR,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-2889
[April 6, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 50-2013-
CF006645AXXMB.
Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Danson Exantus-Barr appeals his convictions of robbery with a firearm
while wearing a mask and a weapons possession charge. He contends that
he was unlawfully stopped and sought to suppress his own statements,
the victim’s identification, and the seized property. The trial court denied
his motion to suppress. We affirm, concluding that the totality of the
circumstances, which included the location tracking of the victim’s stolen
iPhone through the use of a “Find My iPhone” app, gave rise to a
reasonable suspicion to stop appellant.
“The standard of review applicable to a motion to suppress evidence
requires that this Court defer to the trial court’s factual findings but review
legal conclusions de novo.” Backus v. State, 864 So. 2d 1158, 1159 (Fla.
4th DCA 2003). “[A] trial court’s ruling on a motion to suppress comes to
the appellate court clothed with a presumption of correctness, and the
reviewing court must interpret the evidence and reasonable inferences and
deductions derived therefrom in a manner most favorable to sustaining
the trial court’s ruling.” Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002).
After midnight, the victim was walking home from his restaurant job
when he was accosted at 36th Street and Broadway in West Palm Beach
by two persons dressed all in black and with bandanas around their faces.
They told the victim to give them everything he had. The victim had no
money, so they took his watch and iPhone 4. After they took the phone
and watch, one person shot at his feet and told him “get the f___ out of
here, white boy.”
The duo fled southbound on Broadway. The victim ran to the nearest
phone and called 911. He provided the 911 operator with a description of
the individuals, and also gave the operator his username and password to
track his iPhone. The victim explained that he had an app on his phone,
“Find my iPhone,” that worked essentially as a GPS tracker for his phone.
The police arrived at the scene within 5 minutes. The victim gave one
officer the same description of the individuals that he gave to the 911
operator. The victim described one of the robbers as “a black male,
approximately six foot tall, thin build, short-cropped hair, wearing a black
shirt, blue jeans, prescription glasses and a black bandana covering his
face from the nose down.” The other was “a black male, medium build.”
A BOLO was put out with the description of the suspects and the direction
they ran.
At the suppression hearing, a second officer dispatched to the robbery
scene explained the mechanics of the “Find my iPhone” app:
So the way this program works is it actually will tie in to where
the location of it is, and then it’ll give you an overhead view of
–either like a TomTom overview, or a Google Earth overview,
some type of view of it, along with a map of the roadways
similar to what Mapquest is most known for.
Using the victim’s username and password, the second officer began
tracking the stolen iPhone on his own iPhone through the app. The phone
was “live,” meaning that the officer was getting a return signal of the
phone’s location. He directed other units in the area and “gave them the
general area of where the phone was at.” With this information, the other
units established a perimeter in the vicinity of Broadway between 26th and
27th Streets.
The second officer crossed 27th Street and saw the same building
reflected on the overhead view of the app. Next to the building, he saw
three people standing where the app indicated the phone was located.
There was no one else nearby. Two of the three individuals separated from
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the other, and walked toward the building; the other individual walked
toward the parking lot area. All made eye contact with the second officer.
After he lost sight of the two men, the phone stopped transmitting a signal.
Officer Matias testified that the signal stops when the iPhone is turned off.
The second officer then saw the three individuals get into a Ford
Mustang in the parking lot and begin to pull away. At least two of the
persons in the Mustang were similar to the description provided to the
officer by the BOLO. The second officer motioned for the vehicle to stop,
which it did. He waited for the other officers to come and assist him.
Appellant was the front passenger of the vehicle. When the second
officer approached the car, he saw two items described by the victim—
prescription glasses and a bandana. The watch and iPhone were later
recovered. As a result of the stop, appellant and a codefendant were
arrested.
Based on the totality of the circumstances, the trial court determined
that there was reasonable suspicion to stop the Mustang. We agree with
the trial judge’s ruling.
“[A]n officer may conduct an investigatory stop based on specific and
articulable facts that point to a reasonable, well-founded suspicion that a
person has committed, is committing, or is about to commit a crime.” Jean
v. State, 987 So. 2d 196, 198 (Fla. 4th DCA 2008). “A mere hunch or
suspicion is not enough to support a stop.” Id.
In determining the legality of a stop as a consequence of a
BOLO, this court has looked to factors such as the length of
time and distance from the offense, specificity of the
description of the alleged perpetrator(s), the sources of the
BOLO information, the time of day, absence of other persons
in the vicinity of the sighting, suspicious conduct, and any
other activity consistent with guilt.
Id. “A founded suspicion is a suspicion which has some factual foundation
in the circumstances observed by the officer when interpreted in light of
the officer’s knowledge.” Watts v. State, 468 So. 2d 256, 257 (Fla. 2d DCA
1985). “Whether an officer’s suspicion is reasonable is determined by the
totality of the circumstances which existed at the time of the stop and is
based solely on facts known to the officer before the stop.” Slydell v. State,
792 So. 2d 667, 671 (Fla. 4th DCA 2001).
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Appellant relies on Slydell to argue that the second officer was acting
on no more than a hunch, but that case is distinguishable. In Slydell there
was no victim reporting a crime and no BOLO describing perpetrators, only
the officers’ “hunch” that the defendant was a trespasser. The defendant
in Slydell was stopped by law enforcement because an officer “did not
recognize [Slydell] as someone he had ever seen in the area.” Id. at 669.
“The officers testified that they frequently patrolled the area, but they did
not claim to know all of the residents by sight. Moreover, they
acknowledged that ‘it’s a highly transient area.’” Id. at 672. Given this
flimsy basis for the stop, we held that there was a Fourth Amendment
violation.
Unlike the situation in Slydell, the officers here were responding to a
reported crime with a victim who had called 911. The BOLO indicated that
the suspects fled south after the robbery, which is where the officer found
and eventually detained them. Most significantly, the officer had reason
to believe the individuals were involved in the robbery because the victim’s
phone was signaling its location to him through the “Find My Phone” app.
The suspects, the only persons in the area identified by the app, were
consistent with the victim’s description. It was reasonable for the officer
to believe that once the defendants saw him, they turned off the phone to
conceal their possession of it. There was no error in the trial court’s denial
of the motion to suppress.
STEVENSON and FORST, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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