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Prosecutors To Fight Judge's Rejection Of Drug Case

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By THOMAS W. KRAUSE, The Tampa Tribune

Published: January 29, 2008

TAMPA - An off-duty Hillsborough County sheriff's detective who tracked and arrested a man on charges of possessing large quantities of marijuana and cocaine set off a constitutional battle now headed to an appeals court.

A Hillsborough circuit judge previously ruled that the sheriff's detective acted with "extreme" misconduct when he "illegally stopped a citizen."

Prosecutors, however, announced Monday that they will appeal the decision in an effort to prevent the judge from throwing out a case involving more than 3 1/2 pounds of marijuana, more than 400 grams of cocaine and paraphernalia that includes presses used to package cocaine into kilograms.

The man's defense attorney says there is nothing to appeal and prosecutors are being "vindictive" and "frivolous."

The legal issue hinges on whether the detective had a reason to stop the driver and whether the driver thought he was free to leave while the detective questioned him.

On May 30, auto-theft Detective Jason Himmel finished his duties for the day and was driving on Falkenburg Road. He saw a truck pulling a trailer containing motorcycles and all-terrain vehicles and decided to follow.

Himmel said motorcycles often are stolen in Hillsborough County and that is the only reason he followed the truck, according to court documents. He had no report of stolen motorcycles and had no reason to suspect these motorcycles were stolen, the documents state.

The driver of the truck drove to a personal storage business and entered a code number at the gate. Himmel followed him before the gate could close, court documents state.

The only way to get out of the storage center, the defense argued, was to back up the way they came in.

Prosecutors argued that there was room for the driver, 22-year-old Anthony Paul Tumminia, to leave had he chosen to.

When Tumminia got out of the truck, Himmel asked for proof that he owned the motorcycles. Tumminia said he could have someone bring the proof.

Himmel then smelled marijuana and called for backup. When other deputies arrived, Himmel searched the back of the truck and found the drugs.

Circuit Judge Debra Behnke ruled the detective blocked Tumminia's only exit. He, therefore, did not think he was free to leave.

Had Himmel and Tumminia met in a "consensual encounter," the evidence would have been admissible in court, the judge determined. A traffic stop for the purpose of investigation, however, provides constitutional safeguards.

She ruled that Himmel's stop violated Tumminia's Fourth Amendment rights that protect him from unreasonable search and seizure.

"An off-duty officer, without pretense or cause, illegally stopped a citizen," Behnke wrote in her order.

She suppressed all the evidence found by Himmel.

On Monday, Tumminia's attorney, John Trevena, asked the judge to throw out the charges.

Prosecutors, however, said they will file with the 2nd District Court of Appeal.

Trevena said that decision amounts to harassment.

"I just don't see any basis for an appeal," he said.

Sheriff's spokeswoman Debbie Carter said the office is standing by Himmel's arrest as proper.

Assistant State Attorney Pam Bondi said she could not comment directly about a continuing case, but that prosecutors agree with law enforcement.

"We have a legal right to appeal," Bondi said, "and we are exercising our legal right."

Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.

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