Powell v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2007
MONDRE DAMION POWELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D05-2785
[May 30, 2007]
MAY, J.
The defendant appeals his conviction and sentence for possession of
cocaine with intent to sell within 1000 feet of a school. After the denial
of his motion to suppress, the defendant entered a no contest plea
reserving his right to appeal. He argues the trial court erred in denying
his motion to suppress. We disagree and affirm.
The owner of a convenience store contacted the City of West Palm
Beach to participate in a program to control the social environment
surrounding his store. The City provided the store owner with two “No
Trespassing” signs and advised him where to place them. He was also
told not to permit people to congregate on the corner of his property.
Pursuant to the City’s instructions, the store owner asked people not
to congregate in the parking lot. He placed one of the “No Trespassing”
signs on the side of his building, but did not post one in the back
parking lot. That lot did not provide access to the business, but did
provide access to an upstairs apartment.
On the night of the defendant’s arrest, the store owner held a cookout in front of the store. He saw the defendant, who he recognized as an
occasional patron, and asked him not to stand on the corner. He did not
tell the defendant not to loiter in the back parking lot on that day.
Due to complaints of drug activity in the area, a West Palm Beach
police officer sat in an unmarked car down the street from the
convenience store. For forty-five minutes, he observed the defendant and
another man loitering in the convenience store’s back parking lot. He
then watched as the defendant approached the passenger side of a car
that had stopped in the street next to the parking lot. He saw the
defendant give a small object, which he believed to be drugs, to the car’s
occupant in exchange for what appeared to be currency. After the
transaction, the defendant returned to the back parking lot. The officer
then contacted his back-up marked police unit.
Two officers responded to the call. One of them saw the defendant
and another man in the back parking lot as described. He approached
the defendant and asked him if he lived in the apartment, was visiting
there, or had been shopping at the store. The defendant gave a negative
response. The officer then asked the defendant if he had seen the “No
Trespassing” sign posted on the side of the building, to which the
defendant responded affirmatively.
The officer arrested the defendant for trespassing and searched him
incident to that arrest. He found and seized two semi-clear baggies
containing cocaine. The State charged the defendant with one count of
possession of cocaine with intent to sell within 1000 feet of a school.1
The defendant filed a motion to suppress and argued that law
enforcement lacked probable cause for the trespass arrest. The trial
court denied the motion in a written order concluding “the police had
reasonable grounds to believe [the defendant] had sold drugs based on
the facts and circumstances of this case. Moreover, there was probable
cause based on the evidence to arrest Mr. Powell for trespass. At this
motion the State does not have to win the case for trespass but simply
establish a reasonable basis for a belief that the crime had been
committed.” The defendant changed his plea and reserved his right to
appeal the denial of his motion to suppress.
Orders on motions to suppress present this court with mixed
questions of law and fact. Connor v. State, 803 So. 2d 598, 605 (Fla.
2001) (quoting Murray v. State, 692 So. 2d 157, 159 (Fla. 1997)). This
requires us to apply a two-tiered standard of review. Factual findings are
clothed with a presumption of correctness and are accepted as true if
supported by competent, substantial evidence. Id.; Porter v. State, 765
So. 2d 76, 77 (Fla. 4th DCA 2000) (en banc). Legal issues are reviewed
de novo. Connor, 803 So. 2d at 605.
1
The store is 569 feet away from a public middle school.
2
In this case, the defendant was arrested for trespass, a first degree
misdemeanor. Law enforcement officers are authorized to make a
warrantless arrest for a misdemeanor when it is committed in their
presence. § 901.15(1), Fla. Stat. (2004).
The defendant argues that the State lacked probable cause to arrest
him for trespass because it failed to show that he was advised that he
could not enter or remain on the property. He relies on Smith v. State,
778 So. 2d 329 (Fla. 2d DCA 2000), to support his position. The facts of
that case, however, belie his argument.
In Smith, the defendant was a stranger to the convenience store.
According to store policy, employees would ask loiterers to leave the area
after ten minutes. If the person failed to leave, the employees would
summon law enforcement.
The store owner had authorized law
enforcement to issue trespass warnings.
Law enforcement observed the defendant in the parking lot
approaching individuals for ten minutes. Law enforcement arrested
Smith for trespass. Drugs were discovered during a search incident to
arrest. Smith argued the drugs should be suppressed because law
enforcement lacked probable cause to arrest him for trespass because he
was not advised that he could not remain on the property. The trial
court denied Smith’s motion to suppress. The Second District reversed.
The court held that Smith did not have notice of being at risk of arrest
for trespass. Id. at 329–31.
Here, however, the facts are much different. The store owner “asked
everybody in the back of the building to stay from back there.” On the
evening of the defendant’s arrest, the store owner specifically told the
defendant not to stand on the corner because law enforcement had asked
the store owner to “maintain social control” of the property. And, the
defendant admitted to having seen the “No Trespass” sign and was not
on the property to use the store.
This defendant knew he was not permitted to be on the property by
actual notice provided by the store owner and by the “No Trespass” sign.
The defendant admitted knowledge of the sign. He had been observed on
the premises for a significant period of time by law enforcement. In fact,
one officer had observed the defendant participate in what appeared to
be a drug transaction and then return to the back parking lot. These
facts provided probable cause for law enforcement to arrest the
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defendant for trespass.
suppress.
The trial court properly denied the motion to
Affirmed.
FARMER and KLEIN, JJ., concur.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen A. Rapp, Judge; L.T. Case No. 04CF016033A02.
Carey Haughwout, Public Defender, and Lindsay Hanson, Assistant
Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Monique E.
L'Italien, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
4
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