FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-5076
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JUSTIN COWART-DARLING,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Levy County.
Mark W. Moseley, Judge.
October 18, 2018
ROWE, J.
Justin Cowart-Darling challenges his convictions and
sentences for possession of cocaine and possession of drug
paraphernalia. He entered a plea but reserved the right to appeal
the trial court’s denial of his dispositive motion to suppress items
seized from his vehicle following a traffic stop and a sniff test of his
vehicle by a drug detection dog. For the reasons that follow, we
find that the trial court correctly denied the motion to suppress,
and affirm.
Facts
Deputy Kevin Kinik conducted a traffic stop of Cowart-
Darling’s vehicle at 10:28 p.m. on February 17, 2017. When the
deputy asked for his license and registration, Cowart-Darling gave
the deputy his registration and informed the deputy that he did
not have his driver’s license on him. Deputy Kinik conveyed
Cowart-Darling’s legal name and date of birth to dispatch to verify
Cowart-Darling’s identity and to check for outstanding warrants.
Deputy Kinik observed that Cowart-Darling’s hands were
shaking and that he kept moving his right hand towards his right
hip area. This conduct prompted the deputy to call for assistance
while he wrote Cowart-Darling a traffic citation. While writing the
ticket, Deputy Kinik explained to Cowart-Darling that he was a K-
9 officer and asked if there was anything in the car that could cause
a drug detection dog to alert. Cowart-Darling shook his head up
and down in an affirmative gesture. When the deputy asked about
the nature of the illegal substance, Cowart-Darling denied having
anything illegal in the vehicle.
Deputy Jeremiah Roe responded to Deputy Kinik’s call for
assistance at 10:40 p.m. At this point, Deputy Kinik still had not
heard back from dispatch about whether Cowart-Darling had any
outstanding warrants. Deputy Kinik retrieved his canine,
“Zombie,” from the car and proceeded to conduct a sniff search of
Cowart-Darling’s vehicle. Zombie alerted to the driver’s side door,
where a syringe and a spoon with a powdery residue were located.
The powdery substance was field tested and tested positive for
cocaine.
Following his arrest, Cowart-Darling moved to suppress the
evidence seized during the sniff search, arguing that Deputy Kinik
did not have reasonable suspicion to delay the traffic stop or to
take his canine around the vehicle for a sniff search. The trial
court denied the motion to suppress, finding that Cowart-Darling’s
nervousness combined with the fact that he did not have his
driver’s license was sufficient to give Deputy Kinik reasonable
suspicion to conduct a search of the vehicle. The trial court further
found that Cowart-Darling’s conflicting answers about whether
there were illegal substances within the vehicle gave Deputy Kinik
reasonable suspicion to conduct a sniff search. Finally, the trial
court attributed any delay in the stop to Cowart-Darling’s failure
to have his driver’s license.
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Cowart-Darling pleaded no contest to possession of cocaine
and possession of drug paraphernalia and was placed on drug
offender probation for eighteen months. This timely appeal
follows.
Analysis
A trial court’s factual findings on a motion to suppress are
afforded a presumption of correctness. Rigterink v. State, 66 So.
3d 866, 884 (Fla. 2011). The trial court’s application of the law to
the facts is reviewed de novo. Id.
Cowart-Darling argues that his motion to suppress should
have been granted because the traffic stop was prolonged merely
to effectuate a dog sniff of the vehicle. The United States Supreme
Court has held that, absent reasonable suspicion of criminal
activity, a traffic stop may last no longer than necessary for an
officer to address the traffic violation that warranted the stop and
attend to related safety concerns. Rodriguez v. United States, 135
S.Ct. 1609, 1614 (2015). A stop may last long enough for an officer
to check drivers’ licenses, search for outstanding warrants, and
inspect registrations and proofs of insurance. Id. at 1615. But a
traffic stop may not be prolonged to conduct a dog sniff unless the
officer has reasonable suspicion of criminal activity. Id. at 1616.
Here, the traffic stop was still in progress when the deputy
conducted the dog sniff of Cowart-Darling’s vehicle. Because
Cowart-Darling did not have his driver’s license, Deputy Kinik was
required to call dispatch with Cowart-Darling’s identifying
information to determine whether he was in fact the person he
claimed to be and whether he had any outstanding warrants. The
trial court found from the testimony presented at the suppression
hearing that Deputy Kinik did not hear back from dispatch before
he deployed Zombie to conduct a sniff search of Cowart-Darling’s
vehicle. Thus, the trial court properly attributed the prolonging of
the traffic stop to Cowart-Darling’s failure to have his driver’s
license, not the deputy’s decision to conduct a search of the car. Id.
(holding that verifying a driver’s identity is an ordinary inquiry in
a traffic stop).
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Further, Deputy Kinik had a reasonable, well-founded
suspicion of criminal activity to justify detaining Cowart-Darling.
A reasonable suspicion is a particularized and objective basis for
suspecting the person stopped of criminal activity. Brown v. State,
224 So. 3d 806, 809 (Fla. 2d DCA 2017). It cannot be based on
mere nervousness. Cf. Maldonado v. State, 992 So. 2d 839 (Fla. 2d
DCA 2008) (holding that the facts the defendant lied about the
origin of his trip, exhibited signs of nervousness, and traveled on a
known drug corridor in the early hours of the morning were
insufficient to give rise to a reasonable suspicion of criminal
activity). Further, an investigative detention is valid as long as a
reasonable suspicion exists, but if the investigation dispels the
concern that gave rise to the investigation, the suspect may no
longer be detained. Ikner v. State, 756 So. 2d 1116, 1119 (Fla. 1st
DCA 2000).
This was not a case of mere nervousness. While Cowart-
Darling exhibited signs of nervousness (his hands were shaking
and he kept moving his hand to his right hip area), this was not
the sole reason Deputy Kinik decided to search the vehicle. Deputy
Kinik developed reasonable suspicion when Cowart-Darling
moved his head up and down indicating an affirmative response to
the deputy’s inquiry about whether there were illegal substances
in the vehicle. Cowart-Darling’s subsequent verbal denial that
there were illegal substances in the car was insufficient to dispel
the deputy’s concern. If anything, Cowart-Darling’s conflicting
answers heightened the deputy’s suspicion that criminal activity
was afoot.
Accordingly, because Deputy Kinik had a reasonable
suspicion of criminal activity sufficient to detain Cowart-Darling,
and because the traffic stop was not unlawfully prolonged, we find
that the trial court properly denied the motion to suppress, and we
AFFIRM the judgment and sentence.
KELSEY and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Laurel Niles, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General; Tabitha Herrera and Kaitlin
Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
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