PROSECUTORS TO FIGHT JUDGE'S REJECTION OF DRUG CASE

Judge Called Search of Truck Illegal

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."