IN THE FIFTH DISTRICT COURT OF APPEAL FOR

THE STATE OF FLORIDA

CASE NO. 5D15-3692

LOWER CASE NO. 2014-CF-007204-A-O

STATE OF FLORIDA,

Appellant,

vs.

LATOYA L ROCKMORE

Appellee.
___________________________________________________________

ON REVIEW FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL

CIRCUIT IN AND FOR ORANGE COUNTY FLORIDA, THE HONORABLE
GREG A. TYNAN
____________________________________________________________

APPELLANTS INITIAL BRIEF

/s/ KAYLA SHAY MANNING__

KAYLA SHAY MANNING
ASSISTANT STATE ATTORNEY
FL BAR NO: 3433682
DIVISION16@SAO9.ORG
PO BOX 1673, 415 N ORANGE AVE
SUITE 400
ORLANDO, FL 32802
407-863-2192
 TABLE OF CONTENTS
PAGE
Table of Citations.....ii

Preface......iii

Statement of the Case and Facts1

Summary of Argument..9

Statement of Jurisdiction.....10

Standard of Review.............10

Argument...9

I. WHETHER OR NOT THE ARRESTING OFFICER HAD PROBABLE

CAUSE TO ARREST LATOYA L.
ROCKMORE...11

a. WHETHER AN ANONYMOUS TIP CREATES PROBABLE CAUSE TO

BELIEVE THERE IS A CRIME TAKING PLACE AND THOSE
PRESENT ARE INVOLVED...............................11

Conclusion ..........16

Certificate of Service ......17

Certificate of Compliance with Font Requirement ....17

 TABLE OF CITATIONS
CASES PAGE

State v. McGill
125 So.3d 343 (Fla. 5th DCA 2013)....11, 12, 13, 14, 15

Pagan v. State
830 So.3d 792,806 (Fla. 2002).12

OTHER SOURCES PAGE

Fla.Stat. Sect. 828.122(3)(H) (2016)....1

Fla. Stat. Sect. 901.15 (2016). ........11

 PREFACE

In this brief the Appellee, LATOYA L ROCKMORE, will be referred to as

Rockmore.

References to the trial transcript will be made by referring to page number of

the transcript (R. ___).

 STATEMENT OF THE CASE AND FACTS

On May 27, 2014, the Apopka Police Strategic Investigations Division

received information that a dog fight was in progress at 209 W. 7 th St (R. 3). Upon

arrival, it was apparent that there were a large number of vehicles parked across the

street and a large group of people on the property, (R. 3). Appellee, Latoya L.

Rockmore, was arrested at the scene under the Florida Statute 828.122(3)(H) as an

individual allegedly attending the dogfight or bait on the property on a third degree

felony. (R. 3). Fla. Stat. Sect. 828.122(3)(H).

During this arrest, various parties on the scene were detained and arrested by

unknown officers and Detective Talley listed himself as the arresting officer on the

paperwork. (R. 206-207). Due to this, the opposing counsel filed a Motion to

Suppress Evidence from Unlawful Detention, Arrest, and Search on August 5th,

2015 of Rockmore. (R. 206-209).

On September 25, 2015, a Motion to suppress hearing was held before the

Honorable Greg A. Tynan. In this, Sergeant Robert Allen was called for direct

examination (R. 305). Prior to this arrest, Sergeant Robert Allen, an officer

currently employed for the Apopka Police Department, received two tips regarding

potential dogfights at 209 West 7th Street in April and May of 2014 (R. 305, 308).

The first tip came in as a note on a piece of paper with a phone number to call an

anonymous person who possessed information regarding a dogfight (R. 309). Allen
called this number immediately after receiving it and during the phone call was

able to figure out the identity of the tipster. (R. 309-310). During the first tip, the

tipster revealed the address of the dogfight and informed Allen that large groups of

individuals who fight dogs go to these locations in order to participate. (R. 311). A

couple days after this phone interaction, the tipster called Allen back with more

information and gave him the name of the individuals who reside at the

dogfighting location and said he was unaware of when the dog fights will occur

again. (R. 3110). In the phone call, the tipster indicated his first name and later,

Allen received an email that had the same information as was stated on the phone

with his full name. (R. 313). Allen deemed this individual as a reliable source and

someone he frequently saw out in the community. (R 313).

With the information given to Allen, he appointed Detective Melissa

Cabrera to contact animal control and took lead in investigating information behind

dog fights. (R. 316). This was in correspondence to investigating done by

Detective Talley and Detective Dickey. (R. 317).

Allen in his direct examination also stated that on May 27 th, 2014, the tipster

called his phone again and informed Allen around 9pm that dog fights were taking

place and that they had just started. (R. 318-319). He relayed the address and said

there were between 20-30 people there. (R. 319). Allen stated that after receiving

the tip he drove to the neighborhood where the dogfights were allegedly occurring
in order to personally verify the accuracy of the tip itself. (R. 320). He stated that

the first time he drove around the residence and said there was between 15- 20 cars

on the side of the road. (R. 326). He also stated that there was a pick-up truck and

an SUV with dog crates in them. (R. 327).

After the drive by, Allen promptly went to the station to meet the other

members of law enforcement. (R. 328). He and the members of his team created an

operational plan around 9:30. (R. 329). Their goal was to create a perimeter around

the residence due to the concentration of the people on the property. (330). He

stated the operational meeting was between 10 and 15 minutes. (R. 330). It was

rushed due to the fact that there were only a few dogfights scheduled and they were

unaware of how long everyone at the scene would be gathered to watch. (R. 330).

Upon arrival he saw three people in the front yard with at least one being a

female. (R. 335). The front yard was surrounded by a fence and there was a gate to

get in. (R. 335). From the front you could hear noises almost like a party with

people in the back yard and dogs barking and growling. (R. 336). When he

approached the individuals in the front yard, two began to run towards the house

and the female remained in the yard. (R. 338). When he arrived at the backyard, he

saw animals, some of which were fighting, and a small fire. (R. 342). Officers were

ordering people to get down on the ground to secure them. (R. 342). It took under

20 minutes to detain everyone in the front yard. (R. 344).

 The State then called Steve Harmon as a witness. (R. 388). He is the

patrol sergeant for the midnight shift for the City of Apopka. (R. 387). Harmon

stated he did go to the briefing where everyone discussed the mission of what was

about to happen before going to the scene of the crime. (R. 388). He stated that

assignments were given during this and he was in charge of the perimeter. (R.

389). Harmon stated the point of the perimeter was to contain everyone inside. (R.

390).

During cross examination, Harmon stated that there was a chance that there

were individuals who escaped the perimeter. (R. 402). However, every individual

that they did arrest were within the perimeter. (R. 402). In redirect examination

Harmon stated that individuals were, however, being questioned, given the chance

to explain themselves, and let go. (R. 404).

Next, Tim Talley was recalled as a witness. (R.404). First, the state directly

examined him. (R. 405). Talley stated he is currently employed at the City of

Apopka Police Department as a detective, specifically the Strategic Investigations

Unit. (R. 405). Talley stated that he was aware of the tips and was informed by

Sergeant Allen to relay the information. (R. 406). He stated that he was advices on

the night of May 27th, 2014 by Sergeant Allen in regards to the dogfight that was
currently taking place according to the tip Allen received. (R. 406). After receiving

this information, Talley went to the police department. (R. 407).

Talley stated during this that as soon as they pulled up it was clear that there

was an unusually large number of cars parked across from the residence. (R. 410).

Talley also stated that you could hear a large crowd of people in the back and

sounds of dog fighting. (R. 410). Talley did not have a recollection of people in the

front yard. (R. 410). Upon arriving in the back he saw a large group of people

standing around dogs fighting. (R. 413). After arriving, they were able to confirm

everything that the tip had advised in regards to the influx of vehicles and the

sounds of dog fighting. (R. 411). He could see two dogs actively fighting. (R. 414).

Talley stated that immediately after entering, individuals began to flee and they

began to give out police commands. (R. 416). He said he saw approximately 25

individuals in the backyard. (R. 416). After securing individuals, the officers took

them to the front yard. (R. 417). Once they were detained, they began obtaining

drivers licenses and asking basic questions on why they were there. (R. 418). He

stated that no one he spoke to gave him a reason to allow for any individuals to be

released but knew that Allen did, (R. 419). He stated that he attempted to speak to

everyone in regards to why they were present and that was enough to raise concern

for an arrest. (R. 419-420).

 In cross examination, Talley stated that Rockmore was placed in handcuffs

but due to the vast number of individuals he is unaware of what officer detained

her. (R 421). He stated that he did not know who the officer was but assumed that

because she was in handcuffs and arrested that she was on the property of the

dogfights. (R. 421).

The biggest issue involving Rockmore brought up during this motion to

suppress was the concept that there is allegedly not testimony placing her at the

scene of the crime. (R. 453). In the proceedings, Consalo discussed various cases

relating back to the component of the lack of testimony placing her at the scene

and proving that she knew a dogfight was going on or not. (R. 453). He also,

during this proceeding discussed that the burden of probable cause in this arrest has

not been proven implying that the arrest was illegal. (R. 453).

In rebuttal to this claim, the State explains that there should be a focus on the

crime at hand, being a dogfight, and its elements for the crime. They stated that in

Jury Instruction 29.13(b), it deals with animal fighting and whether or not the

defendant knowing attended this. (R. 463). They also acknowledged that this cases

is based on mere presence and whether or not Rockmore knew that a dogfight was

occurring or not. (R. 464). The State explained that there is not a lot of case law on

dogfighting in particular, however Rockmore herself testified that she was in fact
in the front yard of where the dogfight is going on (R. 464). This implies that she

may have known of the dogfight before being detained (R. 464).

On October 8th, 2015, the Motion to Suppress was granted by the Honorable

Judge Greg A. Tynan involving the evidence found on the Appellee after the arrest

including any cash, the phone, the purse and its contents. (R. 236). Some of the

issues brought up involved if the initial stop and seizure of Rockmore was legal or

not. (R. 238). During this, the court found that the stop and seizure was deemed

illegal. (R. 237). The court found difficulty in locating an officer who actually

detained Rockmore and decided that because they do not know what information

the officer relied on to initially arrest her it is deemed an illegal arrest. (R. 239).

With this, the state allegedly failed to prove whether or not the arresting officer had

probable cause for the arrest itself. (R. 239).

During this granting of the Motion to Suppress, an issue of Rockmores

impounded vehicle also raises issues in concern for her defense. (R. 240). In

regards to this, the Honorable Greg A. Tynan rules that there was no evidence that

the car was parked illegally. (R. 240). The only reason the car was impounded was

because Rockmore was arrested. (R. 240). With this, it was also ruled that the

evidence found in Rockmores car was also to be suppressed. (R. 240).

 Overall, the issue raised is that Rockmore was arrested in the front yard of

the property where the dogfight was occurring to which Rockmore did testify at the

beginning of the case. (R. 243). With this, the Judged rules that standing in the

front yard in itself does not establish probable cause. (R. 243). In order to prove

that there was probable cause, it must be proven that there was a dogfight going on

that she was knowledgeable of. (R. 244).

 SUMMARY OF ARGUMENT

This Court should Overturn Judge Greg. A. Tynans ruling of the Motion to

suppress all evidence against Rockmore. This is due to the fact that the court

errored in claiming that there was not probable cause of her arrest.
 STATEMENT OF JURISIDICTION

This Court has jurisdiction over this case pursuant to Florida Rule of

Appellant Procedure Rule 9.140(b)(1)(A). See id. (2016).

STANDARD OF REVIEW

This Courts standard of review is considered a two prong test such that this

Court must defer to the findings of the circuit court as long as competent and

substantial evidence supports them. However, this Court must review de novo to

conclude the ruling of this case.

 ARGUMENT

I. WHETHER OR NOT THE ARRESTING OFFICER HAD PROBABLE

CAUSE TO ARREST LATOYA L. ROCKMORE.

a. WHETHER AN ANONYMOUS TIP CREATES PROBABLE

CAUSE TO BELIEVE THERE IS A CRIME TAKING PLACE AND
THOSE PRESENT ARE INVOLVED.

This Court should reverse the decision made by the lower court suppressing

the evidence found on Rockmore due to the claim that she was arrested without

probable cause. Under Florida Statute, 901.15, arrest by an officer is lawful if he or

she reasonably believes that a felony has been or is being committed by the person

being arrested under probable cause Fla. Stat. Sect. 901.15 (2016). This raises the

question on if an anonymous tip creates probable cause to believe that there is a

crime taking place and those on the property are aware of this. This can be noted

through the 5th District Court of Appeals case of State of Florida v. Christopher

James McGill. See State v. McGill, 125 So.3d 343 (Fla. 5th DCA 2013).

This case is a drug case where the defendant filed a Motion to Suppress on

the basis that the search warrant did not provide sufficient facts on the case to

establish probable cause. See id. at 343. On August 18, 2011, Deputy Dishong of

the Brevard County Sheriffs Office requested a search warrant due to the fact that

he believes cannabis was being kept on the property. See id. at 343. He received a
call from a Confidential Informant on July of 2011 stating that the resident

routinely sold large amounts of cannabis. See id. at 343. He also stated that he has

observed approximately fifty pounds and 20,000 dollars. See id. at 343. Based on

the tip, Dishong began conducting surveillance at McGills residence and observed

vehicles frequently stopping for short periods of time and leaving. See id. at 343.

The officer did do a traffic stop and upon walking up to the vehicles door, it

immediately smelled of cannabis which was found on his the driver. See id. at 343.

The driver said McGill was never known to have a shortage of supply. See id. at

343. He also gave information which collaborates with the reliability of the tip they

received. See id. at 343. This implies that those leaving his property were often

times involved in the purchase of cannabis and were knowledgeable of the crime

being committed. See id. at 343.

Later, the deputy received another tip from a confidential source stating that

a particular individual, Timonthy Michael Calderone, was going to be at McGills

residence to buy two pounds of cannabis. See id. at 343. After a traffic stop, this

instance once again confirmed the reliability of the confidential individual sending

tips to the Sheriffs Office. See id. at 343. The Court deemed the confidential

source reliable with both traffic stops due to the fact that all of the instances were

accurately predicted. See id. at 343. In review, the State used the case of Pagan v.

State. Pagan v. State, 830 So.3d 792,806 (Fla. 2002). In this they needed to
determine the totality of the circumstances and use a common sense assessment

and with this, probable cause was shown. See McGill, 125 So.3d at 343. Overall, a

variety of instances built up in this case helped provide probable cause for the

search warrant and arrest due to the reliability of the confidential tip and how it

collaborated with the surveillance of the property by the police department. See id.

at 343.

In correlation with Rockmores case, there is a disagreement on whether or

not there was probable cause to arrest her. (R. 238). However, if you look deeper

into the issues you can see how probable cause was created at the time. First is the

fact that there was multiple anonymous tips received by the Police Department

with specific examples of the situation including the address and who lived at the

location. (R. 311). On the day of the dogfight, the tipster called and revealed that

the dog fight was taking place and the approximate number of individuals at the

location. (R. 319). In addition to the tipster knowing specific information, Sergeant

Allen was also able to identify this person through the phone and an email he

received. (R. 313). With this, he was able to deem this individual a reliable source

who he frequently saw out in the community. (R. 313). This helped him continue

to prove reliability of the source.

Lastly, after receiving the final tip, Allen drove to the location of the

alleged dogfights to provide surveillance over the tips he received that evening. (R.
326). He confirmed all of the information he could through the drive by, such that

there was clearly a large crowd, 15-20 cars parked on the side of the road and an

SUV with dog crates it them. (R. 327). He went back to the station and during

examination, Talley confirmed that this tip could be seemed reliable as it spelled

out everything they were advised of in regards to the influx of vehicles and the

sounds of dogfighting. (R. 411). This connects to the issue of if Rockmore was

knowledgeable of the dogfight taking place, however it seems unlikely that she

was unaware. If the officers are able to see a large amount of cars and can hear

dogs barking and crying upon exiting their vehicles in the front of the house, it

seems probable that she is knowledgeable as well.

In correlation to State v. McGill and the case at hand involving Miss

Rockmore, both spell out issues in regards to probable cause and reliability of a

confidential or anonymous tipster. In both cases, the reliability was confirmed

through the use of surveillance of the properties. In State v. McGill, this was

confirmed through surveillance and traffic stops of individuals who confirmed

their suspicions. See McGill, 125 So.3d at 343. This helped create probable cause

for on affidavit on the crime being committed and confirmed reliability. See id. at

343. This is relevant in that in Ms. Rockmores case, such that after all of the

information was confirmed by the Officers, it should be deemed reliable and

enough for probable cause. (R. 411). Overall, a reliable tip should be enough to

create probable cause once it is proven reliable.

On top of this, if you look specifically at the individuals in the McGill case,

it becomes apparent that each person on the property was knowledgeable of the

crimes taking place at the home. See McGill, 125 So.3d at 343. The two times a

car left the house in the McGill case they were stopped in a traffic stop and were

both found in possession of cannabis. See id. at 343. This shows their knowledge

of the crime being committed. Much like in the case with Ms. Rockmore such that

the evidence and information from the tipster that leads one to believe the dogfight

is going on from the street could lead a reasonable person to believe that she was

knowledgeable of the crime being committed on the property that she was on.
 CONCLUSION

This Court should reverse the decision of the lower court and find that there

was Probable Cause to arrest Rockmore on May 27, 2014. The Courts error in

determining Probable Cause for this case roots from the lack of acknowledgement

of reliability of the anonymous tip given to them prior to the arrests. With this, it

should be determined that the evidence in correlation to the information from the tip

is enough information to determine probable cause for the arrest of Rockmore. This

is in addition to the fact that she was on the property during the arrest, it is apparent

that any passerby would know a dogfight is taking place due to the influx of cars and

noises coming from the residence.

 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has

been furnished by eservice to Defense Attorney Marc Consalo of The Consalo Law

Firm at Marc@ConsaloLaw.com on this 8th day of December 2016.

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT

I HEREBY CERTIFY that this brief has been prepared using Times New

Roman size 14 font and is otherwise in compliance with Fla. R. App. P. 9.210(2).

/s/ KAYLA SHAY MANNING__

KAYLA SHAY MANNING
ASSISTANT STATE ATTORNEY
FL BAR NO: 3433682
DIVISION16@SAO9.ORG
PO BOX 1673, 415 N ORANGE AVE
SUITE 400
ORLANDO, FL 32802
407-863-2192