State v. Hewitt

• Decision Date: 25 September 1986
• Docket Number: No. BL-169,BL-169
• Citation: 11 Fla. L. Weekly 2054,495 So.2d 809
• Parties: 11 Fla. L. Weekly 2054 STATE of Florida, Appellant, v. Dale K. HEWITT, Appellee.
• Court: Florida District Court of Appeals

Page 809

495 So.2d 809

11 Fla. L. Weekly 2054

STATE of Florida, Appellant, v. Dale K. HEWITT, Appellee.

No. BL-169.

District Court of Appeal of Florida First District.

Sept. 25, 1986.

Rehearing Denied Oct. 29, 1986.

Jim Smith, Atty. Gen., Maria Ines Suber, Asst. Atty. Gen., Tallahassee, for appellant.

Elizabeth L. White and William J. Sheppard of Sheppard & White, Jacksonville, for appellee.

PER CURIAM.

The State appeals an order of the trial court granting appellee's motion to suppress physical evidence. We affirm, based on the findings and authority set forth by the trial court in the order on review, which we adopt in its entirety as follows:

ORDER

Defendant filed a Motion to Suppress physical evidence (namely, marijuana) seized by the police officer after stop of defendant's auto.

The only witness was the arresting officer (Maxwell) who testified on behalf of the State. The facts are not in dispute.

Facts

Maxwell has been a police officer at Jacksonville Beach for about 12 years.

In the afternoon of September 11, 1985, Maxwell received a message from his secretary that the CI (naming him) had called to advise that a drug deal involving one pound of marijuana and defendant was going down at a Publix parking lot right then. Maxwell tried to contact the CI by telephone but could not reach him at the number left with the secretary, which was a public pay telephone. The message was delivered about 6:00 P.M., and Maxwell arrived at the parking lot about 6:15 P.M.

About 11:00 A.M. that morning, Maxwell had spoken to the CI about the defendant. The CI had never spoken to Maxwell about defendant before. In the conversation CI asked Maxwell if he knew "Crazy Dale," identifying defendant; if Maxwell knew that defendant was dealing in drugs; that there was a possibility he could purchase marijuana from defendant; and that he would see what he could do.

Maxwell had known CI over the past 10/11 years. He had used the CI's information in 8/9 arrests, and had found CI's information reliable. He had used CI's information either a month before or after defendant's arrest. He had also used CI's information about 3 months before defendant's arrest. He has seen CI in person at least three times in 1985. The CI is not a police officer.

Upon driving into the parking lot, Maxwell observed defendant and another man drive into the parking lot in an automobile driven by defendant. He thinks defendant saw him. Maxwell knows defendant. About 7/8 years ago a search warrant on the premises where defendant resided had been issued, but defendant was not arrested. Maxwell spoke to defendant several months prior to September 11, 1985 and told him that one day he was going to get caught selling drugs. At that time defendant told him he was leaving town. Maxwell also spoke with defendant a month or two prior to that conversation.

Defendant parked his car in the parking lot. He and his passenger got out and went into the Publix store. About five minutes later, the passenger exited the Publix store, got into his own vehicle and drove away.

Defendant then came out of Publix with a grocery bag, got into his vehicle, and drove in a direction away from his residence.

Maxwell thought what he observed was out of the ordinary because (1) defendant did not drive home with his groceries; (2) the other person had his own car at parking lot and drove away separately. He felt defendant was involved in a drug deal, but had no knowledge if he was buying or selling, but thinks he would have been the seller.

Maxwell concedes that he saw no transaction between defendant and the passenger. He believes that when defendant saw him in the parking lot he did not conclude the transaction. He thought defendant was driving to the passenger's house to conclude the transaction.

Maxwell followed him and after about 16 blocks called for uniform car to stop defendant. Defendant was stopped by Officer Lenz.

Officer Lenz asked defendant for driver's license. Maxwell arrived; took driver's license; told defendant he had reason to believe there were drugs in his vehicle; told defendant to step away from defendant's vehicle. Maxwell was going to his car to get consent to search. Although Maxwell testified defendant was not under arrest, defendant was not free to go at that time. Defendant and Officer Lenz walked toward the officer's police vehicle; defendant was very nervous, almost hyperventilating; defendant struck Officer Lenz and fled.

Maxwell did not pursue defendant, but stayed with defendant's car. Defendant was caught and placed under arrest.

Maxwell intended to search defendant's car with or without the consent. His primary motive was to look for contraband, not weapons. After defendant fled, Maxwell went into defendant's car. There was a brown paper grocery bag on floor of back seat with top folded down. The contents of the bag were not visible without opening the bag. The brown paper bag was different than the bag with groceries, which was white plastic.

There are two issues: First, was there founded suspicion to detain the defendant? Second, was the warrantless search of the defendant's automobile legal?

First Issue

The State asserts there is reasonable suspicion to detain defendant because of the police officer's prior knowledge of the defendant, the tip on the defendant's drug selling activities and his own observation of the defendant's activities at the time and place provided by the tip.

Defendant attacks the tip as double hearsay and contends there was nothing suspicious about defendant's conduct at the Publix parking lot.

The Law

1. In St. John, Jr. v. State, 356 So.2d 32 (Fla. 1 DCA, 1978) a CI told the police officer that defendant had 5-7 pounds of marijuana in a white over blue Chevrolet and gave the license tag number of the car, a brief description of defendant and defendant's address. The police officer had known informant for several years and knew him to be reliable, but did not ask him how or when he had received the information.

Three or four hours later, police officer saw defendant in an automobile in front of address supplied by informant. The automobile matched informant's description.

Based solely on informant's tip, the officer pulled up beside defendant and asked him to step out and show ID. The officer then put his head through an open window and smelled marijuana. He then searched the trunk, finding nothing, and the interior of the car, finding marijuana in a paper sack on the right front floorboard. The officer did not smell or see anything from outside the automobile.

The appellate court held that the officer had the duty to investigate the information given him by the informant, because it gave rise at least to a well founded suspicion that defendant was committing a crime. The police officer was authorized to search to the extent necessary to disclose the presence of a weapon. A general search of the automobile for contraband, however, was impermissible as incident to the lawful detention. To escape suppression, the contraband must have been in plain view or the informant's tip must have been legally sufficient to give the police officer probable cause to believe that the automobile contained contraband (citations omitted).

In 1978, it was necessary that the trial judge make factual findings that the informant was reliable and the information credible, per Aguilar and Spinelli test.

With a dissent, the First District Court of Appeal reversed the Court's failure to suppress the evidence.

2. Another First District Court case, Byrd v. State, 380 So.2d 457 (1980), explored the responsibilities and limitations of a police officer receiving a tip.

Police officers received information by radio that a white female had been abducted by two black males and placed in a white Lincoln Continental. A second BOLO was received concerning a theft in the general area where the abduction was believed to have occurred. It also gave general description of two black males similar to the description of the alleged abductors. The police stopped a white Continental automobile with two blacks. The policeman received permission from the driver to examine what he thought was a purse, but which in fact was a camera case. Nevertheless, upon opening the door, the officer observed "marijuana roaches" in open ashtray. Defendants were arrested, the auto searched and additional narcotics found.

The opinion follows case law with respect to weight that a tip should be given. It cites Isham v. State, 369 So.2d 103 (Fla. 4 DCA, 1979), holding that the police had the right and even a duty to investigate a telephone call received from an anonymous informant. It struck down, however, the search following the encounter because the information relayed did not suggest that the defendant was armed with a dangerous weapon and there existed neither consent nor probable cause to search.

The case explains that if an automobile stop is prompted not by probable cause, but by an officer's suspicion that criminal activity may be present, the legality of the stop is then measured by the Fourth Amendment's general proscription against unreasonable searches and seizures.

"The reasonableness of the officer's conduct is in turn determined by balancing the violation of the individual's privacy rights against the public's interest in preventing crime. At a suppression hearing an officer should be able to 'point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that' criminal activity is afoot. (Terry ) The 'articulable' facts inducing the stop need not be directly observed by the officer. They may be furnished by a known informant, and if the information provided carries enough indicia of reliability, a stop will not be invalidated (Adams v. Williams, 1972). Other cases have permitted police encounters with individuals or vehicles even though the information provided came from an...