A “hot” gun instead of chocolate under the hotel pillow

November 7, 2022


No. 2D21-1275 (decided October 26, 2022)


It pays to reserve case dispositive suppression issues for appeal through a conditional plea, whenever possible. A recent appellate decision shows the upside of this practice pointer which should be followed by zealous criminal defense lawyers.


In our case of the week, Gary Todd Dydek was charged and convicted of drug possession after pleading “no contest.” Dydek entered a conditional plea reserving the right to appeal the trial court denial of his case dispositive motion to suppress contraband found during a warrantless search of his person.


 On appeal, the Second District reversed his convictions and sentences and remanded for dismissal of the case charges, concluding that the search and seizure were not justified by a “reasonable suspicion” that Dydek had committed any crime. The Court found that the police officers’ encounter with Dydek was not “consensual.”


A “hot” gun instead of chocolate under the hotel pillow…


A housekeeper at a Rodeway Inn in New Port Richey came across a gun under a pillow in a vacant room. A call was made to the police. When officers arrived, the gun had already been removed from the room, and it was handed over to the police. The manager told the officers that the room in which the gun was found was previously registered to a man and woman who had moved into another room in the hotel. The state evidence did not show how long the couple 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 by housekeeping staff. No evidence suggested that police officers examined the room in which the gun had been found. A database search revealed that the gun had been stolen in Pinellas County in an incident involving several other guns. The record in the trial court was silent about any other details of the Pinellas County guns theft.


Looking for a middle-aged white male convicted felon…


Hotel staff showed the officers copies of the identification presented by the couple who rented the first room and moved to the second room. A records search revealed that the man, Keith Vandawalker, a middle-aged white male, was an ex-felon. Officers claimed that fact gave them “a little more reasonable suspicion that there was possibly a convicted felon armed with multiple firearms in that [second] hotel room.” A stakeout of the second room was set up by the police with the intention of tactically advancing to the targeted room. Eventually, a man, similar to the description of Mr. Vandawalker, exited the room, looked around near its front door for 30 seconds to a minute, and re-entered the room. This also aroused police suspicion.


Lacking probable cause to get a search or arrest warrant, the officers opted to “knock on the door and try to make contact – peaceful contact.” The Second District found that the officers’ idea of “peaceful contact” was “anything but,” given that one officer had positioned himself on the other side of the hotel pool pointing a rifle at the room, while four other officers, three with their handguns drawn, loudly knocked on the room door and announced their presence. Vandawalker was not in the room. Dydek testified he opened the door and saw the guns drawn. The police officers testified that they “funneled” Dydek down the hallway away from the room and frisked him for weapons, finding none. While this occurred, officers searched the room, ostensibly as a “protective sweep.” The police found no other person, no guns, and no contraband.

No Vandawalker, No guns, but Dydek gets busted instead


 Dydek was then being held a few feet down the hall and was told to put his hands behind his back to be handcuffed. The officer claimed that he handcuffed Dydek for officer safety. According to the officer, Dydek pulled one of his hands away. Because the officer “didn’t know [Dydek’s] intentions,” he “took him down to the ground.” Dydek landed on his face, and the officer handcuffed him. At that point, Dydek was placed under arrest for “resisting, obstructing the investigation.”


With Dydek restrained, the officers searched his person. They found and opened a pouch belted around his waist, which contained methamphetamine, cocaine, fentanyl, oxycodone, methylenedioxymethamphetamine, and marijuana, resulting in the State charging Dydek with 6 counts of drug possession. Dydek was also charged with obstructing or resisting an officer without violence, but the State later dropped that charge.


The State argued that Dydek’s encounter with the officers had been “consensual” or, alternatively, that the officers had a “reasonable suspicion” to support an investigatory stop under the Stop and Frisk Law, Fla. Stat. § 901.151. When denying the motion, the trial court made few factual findings, choosing instead to summarize the suppression hearing testimony, and to simply announce denial of the requested suppression.


The three levels of police-citizen encounters explained


 On appeal, the Second District painstakingly explained “there are essentially three levels of police-citizen encounters.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The first is the so-called “consensual encounter” which “involves only minimal police contact,” and the “citizen may either voluntarily comply with a police officer’s requests or choose to ignore them.” Id. The second type of police-citizen encounter often referred to as an “investigatory stop” permits detaining a suspect temporarily for investigation “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 police-citizen encounter is the dreaded arrest, “which must be supported by probable cause that a crime has been or is being committed.” Id.


 The encounter between Dydek and the armed officers was clearly not consensual. To qualify as a consensual encounter, the police cannot “hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries.” Id. at 187. The encounter is not consensual where the “show of authority” by police would lead “a reasonable person [to] conclude that he or she is not free to end the encounter and depart.” Id. at 188.

See also United States v. Mendenhall, 446 U.S. 544, 554 (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.”) The officers asserted that their “tactical[] advance” to perform a “knock-and-talk” at the hotel room had been a consensual encounter. The “extreme display of authority” and “overbearing tactics” employed by police “negated any possibility” that the encounter was consensual. The opinion set forth its rationale as follows:


“No reasonable person would feel unrestricted and free to leave upon opening his door to be confronted by multiple officers with firearms drawn and with a rifle trained at the room from a few dozen yards away. And Dydek was definitively not free to leave when the officers laid hands on him, hauled him down the hall, attempted to handcuff him, and smashed his face into the ground.”


The Second District also rejected the state suggestion that the encounter could be characterized as an investigatory stop. Popple, 626 So. 2d at 186 (“At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.”). Mere suspicion is not enough. Id. The State argued that the police officers had a

reasonable suspicion that the second room was occupied by people who “were engaged, at the very least, in a potential felon in possession of a firearm case as well as potentially stolen firearm case.” The officers testified they were concerned that there were “multiple occupants and multiple firearms in that new room.” But the evidence possessed by the officers when they undertook the encounter failed to show that Dydek was reasonably suspected of committing any crime. The officers testified they were simply looking for a middle-aged white man as reflected on the identification of Vandawalker, the ex-felon. Police knocked on the room door and directed or pulled a man, similar to the general description, out of the room at gunpoint because they thought it was suspicious that he stepped out of the room momentarily. See Price v. State, 120 So. 3d 198, 202 (Fla. 5th DCA 2013) (police had a “forbidden hunch” of a hand-to-hand drug exchange based on observing a person walk out of a pharmacy with a white bag and his “mannerisms” of head and arm movements inside of a vehicle with another person).


 The State tried to salvage the search of the pouch because it occurred after Dydek’s arrest for resisting without violence, asserting there was probable cause. But if a person is detained by officers without lawful authority, they are not acting in the lawful execution of their duties, and any nonviolent efforts to oppose or avoid the detention is not unlawful. See A.R. v. State, 127 So. 3d 650, 654 (Fla. 4th DCA 2013) (“[i]n resisting cases involving an investigatory detention, the state must prove that the officer had a reasonable suspicion of criminal activity.”); Fla. Stat.  § 843.02 (defining the offense of resisting an officer without violence as resisting an officer who is engaged in “the lawful execution of any legal duty”). The State failed to show a “reasonable suspicion.”


As evidence seized as a direct result of an unlawful search is inadmissible, the trial court should have granted the motion to suppress and dismiss all of the charges, in the opinion of the majority, but the dissenting opinion found that the officers’ “suspicion was eminently reasonable.” The dissent reasoned that hotel staff identified the people in Room 142 as the most recent occupants of the room where the stolen gun was found, and Dydek fit the general description of the ex-felon who had been in the room where the stolen gun was found. Thus, the dissenting judge concluded the officers had reason to suspect Dydek had committed theft of a firearm, possession of a stolen firearm, or possession of a firearm by a convicted felon, and had lawful authority to detain him when he resisted.


A close call?


In the end, even if it was a close call that invited a dissent, Dydek’s appeal succeded, showing why it is advisable for criminal defense attorneys to seek a conditional plea, whenever possible. Our case of the week shows the importance of staying up-to-date on the law and current on different judicial views.

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