St. John v. State, 77-2486

• Decision Date: 01 November 1978
• Docket Number: No. 77-2486,77-2486
• Citation: 363 So.2d 862
• Parties: Barry ST. JOHN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 862

363 So.2d 862

Barry ST. JOHN, Appellant, v. STATE of Florida, Appellee.

No. 77-2486.

District Court of Appeal of Florida, Fourth District.

Nov. 1, 1978.

Rehearing Denied Nov. 22, 1978.

Franklin T. Walden of Brock, Massey, Walden & Eaton, Altamonte Springs, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen and Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for appellee.

DOWNEY, Chief Judge.

Appellant was charged with possession of a controlled substance in violation of Section 893.13(1)(e), Florida Statutes (1975). Appellant's motion to suppress evidence was denied and he pleaded nolo contendere, reserving the right to appeal the denial of the motion to suppress.

The evidence at the suppression hearing showed Officers Bell and Wells were in an unmarked police unit when Bell saw appellant drive by in a 1969 orange Camaro. The vehicle reminded him of a Bolo received an hour or two earlier to look out for an orange Camaro or Firebird, approximately 1968 model, containing a white male. Bell immediately requested a re-reading of the Bolo and a license number. The requested information was not immediately forthcoming so Bell requested Officer Poff, who was driving a marked cruiser, to stop appellant. After stopping appellant, the unmarked unit containing Officers Bell and Wells arrived at the scene and Officer Poff departed.

Both appellant and the officers exited their cars and Bell identified himself as a police officer and asked appellant for his driver's license. At that time Bell smelled the odor of marijuana about appellant's person and asked appellant if he had been smoking marijuana. Appellant admitted he had and told Bell he had a nickel bag left in the car. At Bell's request appellant procured the nickel bag. Bell then asked appellant if he could search the vehicle, but before doing so Bell advised appellant he did not have to consent to a search of the vehicle and that anything found therein could be used against him. Appellant consented to the search which resulted in locating more marijuana, whereupon Bell then arrested appellant. Following the arrest appellant admitted the marijuana was his.

Bell testified that when he stopped appellant he did so pursuant to the Bolo. After appellant consented to the search, Bell radioed Officer Poff to see if he had any "consent to search" forms. Poff corroborated this.

Appellant contends the trial court committed reversible error in failing to suppress the evidence obtained as a result of the search of appellant's car because the original stopping of appellant's car by the police was improper. While we agree the initial stop and detention of appellant was improper, we do not believe the trial court erred in denying suppression because it is clear on this record that appellant consented to the search.

With regard to the initial stopping of appellant's car the proof adduced at the suppression hearing showed the police did not have the founded suspicion necessary to warrant stopping and detaining appellant pursuant to Section 901.151, Florida Statutes (1975). The sole basis for the stop was the bolo received by the officers an hour or two earlier. In order for a bolo to justify such a stop there must be some showing by the state at a suppression hearing that the information contained in the bolo was reliable. If the police received the bolo information from some unknown tipster, it would not carry the credibility necessary to justify reliance thereon. This is the rule followed by the Second District Court of Appeal in State v. Hendry, 309 So.2d 61 (Fla.2nd DCA 1975), and Lewis v. State, 337 So.2d 1031 (Fla.2nd DCA 1976). We think that rule comports with constitutional safeguards. As the Supreme Court of the United States said in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972):

"Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations for example, when the victim of a street crime seeks immediate police aid and gives a description of...