Petition for Writ of Certiorari — Christopher Jackson, Petitioner v. Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

No. 1D16-1755

CHRISTOPHER JACKSON,

CORRECTED PAGES: pg 1

CORRECTION IS UNDERLINED IN

RED

MAILED: March 2, 2018

Appellant,

BY: KMS

V.

STATE OF FLORIDA,

Appellee.

On appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

February 19, 2018

WiNSoR, J.

Christopher Jackson appeals his convictions and sentences,

claiming violations of the Fourth, Sixth, and Eighth Amendments.

More specifically, Jackson argues that the trial court should have

granted his second motion to suppress, that only a jury could

determine his status as a Prison Releasee Reoffender (PRR), and

that his life sentence constitutes cruel and unusual punishment.

We affirm.

I.

Jackson and two others broke into a home and held the home's

four occupants at gunpoint. The three assailants forced the victims

into a bathroom and took turns holding them while the others

collected valuables. Jackson later claimed one of the victims had

shorted him some marijuana in a recent sale. He admitted he

[IIi1

broke into the house but insisted he only intended to take back

that marijuana. He claimed the other assailants—not he—had

stolen the other items.

Among the stolen items was an iPhone, so police quickly

looked to the "Find My iPhone" application to track the assailants.

Armed with real-time tracking and the description the victims

provided, officers broadcast a be-on-the-look-out (BOLO) alert. An

officer quickly identified a car in the same area as the stolen

iPhone, traveling in the same direction as the stolen iPhone, and

containing people matching the assailants' general descriptions.

After waiting for backup, the officer stopped the car, removed

and handcuffed the occupants, and conducted a protective sweep

of the car. The officer initially saw nothing in plain view but then

opened the trunk and found marijuana and a revolver with an

altered serial number. Her decision to open the trunk was

consistent with her department's "plus one" rule, under which (she

later testified) officers always search the trunk of a vehicle during

a felony traffic stop "to make sure there's no other occupants either

in the vehicle or in the trunk."

Meanwhile, other officers brought the victims to the trafficstop location. The victims identified Jackson and another male

passenger as participants in the robbery, and officers arrested

those two. Officers then searched the car's passenger compartment

incident to arrest, and they found several items taken during the

robbery including a wallet, a handgun, and a victim's driver's

license. They also found the stolen iPhone that led to the quick

apprehension.

The State charged Jackson with burglary of a dwelling,

aggravated assault, marijuana possession, possession of a firearm

with an altered serial number, possession of a firearm by a

convicted felon, and four counts of armed robbery.

Jackson, who represented himself at trial, adopted his codefendant's two motions to suppress. The first motion sought to

suppress the evidence found in the trunk before the show-up

identification. The second motion sought to suppress the evidence

found in the passenger compartment during the search incident to

arrest.

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The court granted the first motion saying it was "not

convinced that [the plus-one] rule actually exists" and that it was

"ludicrous" for officers to believe there could have been someone

hiding in the trunk. The court also explicitly rejected the State's

argument that the evidence should nevertheless be admitted

under the inevitable-discovery exception, stating that "without the

evidence from the trunk, there was no basis to detain the

individuals and the show-up might never have occurred." After

this ruling, the State moved to dismiss the charges for marijuana

possession and possession of a firearm with an altered serial

number.

But in a later hearing on the second motion to suppress, the

court concluded police were justified in detaining Jackson for the

show-up and that "the show-up lineup would have occurred

irrespective of whether the property in the trunk had been found."

The remaining counts then proceeded to trial.

The jury convicted Jackson of burglary of a dwelling,

aggravated assault, and two counts of armed robbery. At

sentencing, the court found that Jackson had committed these

crimes within three years of being released from prison and that

he therefore qualified for sentencing under the PRR Act. See

§ 775.082(9), Fla. Stat. (201). Accordingly, the court sentenced

Jackson to concurrent life sentences with a ten-year mandatory

minimum in each of the armed-robbery counts, fifteen years'

prison for burglary of a dwelling, and five years' prison with a

three-year mandatory- minimum sentence for aggravated assault.

II.

Jackson's first argument on appeal is that the court should

have suppressed the evidence found in the passenger

compartment. He argues that without the evidence found in the

trunk, there was no basis for searching the vehicle a second time

or for detaining the occupants for the show-up identification. In

other words, he argues, the search of the trunk (which the trial

court found illegal) was the poisonous tree, and everything later

found in the car was the fruit. See Oregon v. Elstad, 470 U.S.

298,

307-09 (1985). We conclude the trial court correctly rejected this

argument.

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Preliminarily, much of Jackson's argument focuses on the

trial court's conclusion that officers illegally searched the trunk

.

Jackson insists that the trial court's ruling on that point obligated

it to suppress evidence found after the trunk's search. He

specifically argues that "the trial court's rulings were inconsisten

t

and arbitrary." The trial court's order suppressing evidence from

the trunk is not before us, and we are not obligated to presume the

correctness of that order's legal conclusions—even assuming they

were inconsistent with the court's later conclusions. The State was

authorized to appeal the order suppressing evidence from the

trunk, Fla. R. App. P. 9.140(c)(1)(B), but it chose not to—perhaps

because it figured it could secure a conviction and life sentence

with the remaining evidence alone. The State is not obligated

to

appeal adverse suppression rulings just to preserve convictio

ns

secured despite those rulings. We therefore must decide whether

the suppression ruling that is before us was correct in its own

right.

An officer may conduct an investigative stop when he or she

has reasonable suspicion that the occupants have committed or are

committing a crime. Hunter v. State, 660 So. 2d 244, 249 (Fla.

1995). An officer need not personally observe the events giving rise

to reasonable suspicion, so long as facts are communicated to him

by another officer or a reliable third party. State v. Bowers, 87 So.

3d 704, 707.08 (Fla. 2012). Courts evaluating whether an

investigatory stop based on a BOLO was justified consider "(1) the

length of time and distance from the offense; (2) route of flight; (3)

specificity of the description of .the vehicle and its occupants; and

(4) the source of the BOLO information." Hunter, 660 So. 2d

at 249.

These factors weigh overwhelmingly in the State's favor. The

robbery occurred at 5:45 a.m., and the officer initiated the stop

shortly after 6:00 a.m. Officers knew the perpetrators' exact route

because they were tracking the stolen iPhone, which was traveling

in the same vicinity and in the same direction as Jackson's vehic

le.

Finally, the vehicle contained the same number of occupants as the

BOLO description, and the officer saw that one of the occupants

wore a camouflage hat, consistent with the BOLO. Cf. id.

(holding

that officer had reasonable suspicion to conduct traffic stop

and

detain occupants for a show - up identification based

on BOLO

where roughly an hour had passed since the crime was committed

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and BOLO description included number and description of

occupants).

Given these facts, officers had reasonable suspicion to stop the

vehicle and detain the occupants for the show-up identification.

Once the victims identified Jackson, there was probable cause to

arrest him (assuming there was no probable cause beforehand).

And because officers reasonably believed that the vehicle

contained evidence of the robbery, the subsequent search of the

passenger compartment was justified as a search incident to

arrest. See Arizona v. Gant, 556 U.S. 332, 343-44 (2009).

The search of the vehicle's passenger compartment was not a

violation of the Fourth Amendment.

III.

Next, Jackson argues that because his eligibility for

sentencing under the PRR Act was not found by the jury beyond a

reasonable doubt, his heightened sentence violated his SixthAmendment rights in light of Alleyne v. United States, 133 S. Ct.

2151 (2013).

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

Supreme Court held that any fact that increases a defendant's

statutory maximum sentence, other than the fact of a prior

conviction, must be found by a jury or admitted by the defendant.

Then, in Alleyne, the Supreme Court extended this rule to apply to

any fact that increases any mandatory-minimum sentence.

Alleyne, 133 S. Ct. at 2155. After Apprendi but before Alley

ne, the

Florida Supreme Court upheld the constitutionality of the PRR

Act, rejecting arguments that the Act violated Apprendi.

See

Robinson v. State, 793 So. 2d 891, 893 (Fla. 2001).

Jackson contends that the United States Supreme Court's

Alleyne decision effectively overruled the Florida Supreme Court

's

Robinson decision. He contends that in light of Alleyne,

the PRR

Act violates the Sixth Amendment. But this court explicitly

rejected that argument in Williams v. State, 143 So.

3d 423, 424

(Fla. 1st DCA 2014). Jackson argues that Williams

was wrongly

decided, but this panel is bound to follow it.

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Iv.

Finally, we reject Jackson's argument that his life sentence

violates the Eighth Amendment. The Florida Supreme Court has

said that "to violate the Cruel and Unusual Punishments Clau

se,

a prison sentence must, at least, be grossly disproportionate to the

crime." Adaway v. State, 902 So. 2d 746, 749 (Fla. 2005). A life

sentence for armed robbery falls well short of that standard. Cf.,

e.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (no Eighth

Amendment violation with life sentence for drug possession);

Rummel v. Estelle, 445 U.S. 263 (1980) (no Eighth Amendment

violation with life sentence for obtaining money by false pretenses

based on recidivist statute). We likewise reject Jackson's argument

that his sentence violates the Florida Constitution's prohibitio

n

against cruel and unusual punishments. See Art. I, 17, Fla.

Const. (noting that Florida provision "shall be cons§ trued

in

conformity with decisions of the United States Supreme Cour

t

which interpret the prohibition against cruel and unusual

punishment").

To the extent Jackson argues his sentence is too harsh

because it could have been lighter if he committed his crim

es

twelve days later than he did, his timing does not make his

punishment any more grossly disproportionate.* It is up to the

Legislature to determine where the appropriate cutoff for a PRR

sentence lies, and the Florida Legislature chose three years.

See

Rummel, 445 U.S. at 285 ("Like the line dividing felony theft from

petty larceny, the point at which a recidivist will be deemed to have

demonstrated the necessary propensities and the amount of time

that the recidivist will be isolated from society are matters large

ly

within the discretion of the punishing jurisdiction."). Regardles

s,

the Florida Supreme Court has held that mandatory-minimum

sentences under the PRR Act do not violate the Eigh

th

Amendment. State v. Cotton, 769 So. 2d 345,356 (Fla. 2000

) ("[T]he

The PRR Act allows the State to seek enhanced sentences for

those who commit certain felonies within three years of relea

from prison. See § 775.082(9), Fla. Stat. (2012). Jackson comm se

itted

his crimes just eleven days short of the three-year mark following

his release.

*

[1111!]

[PRR.] Act's mandatory sentencing scheme does not constitute

'cruel or unusual' punishment.").

AFFIRMED.

BILBREY and M.K. THOMAS, JJ., concur.

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

Candice Kaye Brower and Melissa Joy Ford, Tallahassee, for

Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant

Attorney General, Tallahassee, for Appellee.

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DISTRICT COURT OF APPEAL, FIRST DISTRICT

2000 Drayton Drive

Tallahassee, Florida 32399-0950

Telephone No. (850)488-6151

March 29, 2018

CASE NO.: 11016-1755

L.T. No.: 2013-CF-476A

Christopher Jackson

Appellant! Petitioner(s),

V.

State of Florida

Appellee / Respondent(s)

BY ORDER OF THE COURT:

Motion for rehearing en banc filed by the appellant on March 5, 2018, is denied.

Appellant's motion filed March 8, 2018 for certification is denied.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

Served:

Hon. Pamela J0 Bondi, AG

Kaitlin Weiss, AAG

jm

(R!STINA SAMUELS, CLERK

Candice Kaye Brower, RC

Christopher L. Jackson

Melissa Joy Ford

upreme Court. of 11ort"ba

6

TUESDAY, JULY 3, 2018

CASE NO.: 5C18-618

Lower Tribunal No(s).:

1D16-1755; 372013CF000476AXXXXX

CHRISTOPHER JACKSON

Petitioner(s)

vs. STATE OF FLORIDA

Respondent(s)

This cause having heretofore been submitted to the Court on jurisdictional

briefs and portions of the record deemed necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Constitution, and the Court having determined that

it should decline to accept jurisdiction, it is ordered that the petition for review is

denied.

No motion for rehearing will be entertained by the Court. See Fla. R. App.

P. 9.330(d)(2).

PARIENTE, LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur.

A True Copy

Test:

John A. Tomasino

Clerk,Suprethe Court

ic

Served:

KAITL1N R. WEISS

CHRISTOPHER JACKSON

HON. KRTSTINA SAMUELS, CLERK CANDICE K. BROWER

HON. GWEN MARSHALL, CLERK

MELISSA JOY FORD

TRISHA MEGGS PATE

HON. ANGELA COTE DEMPSEY, JUDGE

Additional material

is

from this filing

available in the

Clerk's Office.