Betancourt v. State

• Decision Date: 17 June 1969
• Docket Number: No. 69--51,69--51
• Parties: . The STATE of Florida, Appellee. District Court of Appeal of Florida, Third District
• Court: Florida District Court of Appeals

Page 378

224 So.2d 378

Henry BETANCOURT, Appellant, v. The STATE of Florida, Appellee.

No. 69--51.

District Court of Appeal of Florida, Third District.

June 17, 1969.

Robert L. Koeppel, Public Defender, and Gregory B. Hoppenstand, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.

Before PEARSON, BARKDULL and SWANN, JJ.

PEARSON, Judge.

The appellant was adjudged guilty after trial by the court of the crime of unlawful possession of marijuana. He was sentenced to three years at hard labor in the state penitentiary. This appeal is from the judgment and sentence.

Appellant's single point on appeal turns upon the legality of his arrest. It is urged that the court erred in admitting into evidence appellant's admission that he had left a package in a taxicab and a police officer's testimony that upon later search of the taxicab the officer found a package of what proved to be marijuana. The package was also admitted into evidence. The logical progression of appellant's argument is: (1) the appellant's arrest was illegal because it was made without probable cause; (2) the admission by the appellant that he had left a package in the taxicab was a product of his illegal arrest; (3) the search of the taxicab was illegal because (a) it was made without a search warrant, and (b) it was occasioned by the illegally obtained admission; (4) therefore the court erred in denying appellant's motion to suppress the physical evidence and in admitting testimony as to the search and its results.

We begin by agreeing with appellant that if the search of the taxicab was illegal the court should have granted the motion to suppress, and if the evidence of the search is excluded there is insufficient remaining evidence to support the conviction.

The arrest and the search occurred in the following way. At about 5:20 A.M. the arresting officer was cruising in a marked police car on Miami Beach. He received a radio message that a robbery had just occurred in the area and that the criminal was thought to still be in the neighborhood. The officer spotted and followed a taxi in which the appellant was the only passenger. The officer testified that he thought that appellant acted suspiciously in that the appellant continued to keep his eyes on the police car. The officer stopped the taxi. The driver of the taxi on request displayed his trip sheet, which showed that the appellant had been picked up within a block and one-half of the site of the robbery. After observing the appellant, the officer determined that he was suspiciously attired in view of the hour and the area. Appellant wore a dark shirt and dark dungarees and was barefooted. Despite the officer's testimony that he did not at this time arrest the appellant, it is apparent he actually arrested the appellant as a suspect in the robbery because he advised him of his constitutional rights, forced him to get out of the cab, and searched him. When asked if he could account for his whereabouts during the preceding half hour, the appellant told the officer that he had been visiting a friend in the neighborhood. The two went to the apartment designated, which was occupied by one Carlough. There the officer was at first refused admission but later entered and found marijuana cigarette butts and marijuana seeds in plain view. The officer then arrested the appellant, Carlough, and one other person who was present in the apartment, for the possession of marijuana. The officer questioned Carlough, who told him that the appellant had brought the marijuana to the apartment. After bringing his prisoners to the police station, the officer received information from a confidential informant that there was marijuana in the cab. Appellant was again informed of his rights and questioned. The appellant admitted he had left a brown paper bag under the rear seat of the cab. The cab was called back to the police station about forty minutes after the officer had discharged it. When the cab arrived at the police station, it was searched without a warrant. A brown paper bag containing marijuana was found under the rear seat. The cab driver had carried one fare before he picked up the appellant and one fare after the appellant had left his cab.

A hearing was had upon appellant's and upon Carlough's motions to suppress the evidence seized at the apartment and upon appellant's motion to suppress the evidence seized in the cab. The court granted Carlough's motion as to the marijuana cigarette butts and marijuana seeds seized at the apartment ¹ but denied appellant's motion as to that evidence upon the ground that appellant had no standing to question the validity of the search of the apartment because he had no possessory interest in the apartment. The court also denied appellant's motion to suppress the evidence seized in the cab because appellant had no standing to question the validity of the search of the cab. Appellant was found guilty only of possession of the marijuana in the cab. ²

We think it is clear from this record that appellant's arrest as a suspect in the robbery was terminated at the time of the search and arrest at Carlough's apartment. The purpose of the trip to the apartment was to confirm appellant's statement that he had been visiting Carlough at the time of the robbery. It is apparent that the investigating officer accepted appellant's and Carlough's explanations because appellant was rearrested upon the charge of possession of marijuana. This charge was based upon a...