Albo v. State

• Decision Date: 29 October 1985
• Docket Number: No. 84-1945,84-1945
• Parties: 10 Fla. L. Weekly 2437 Arsemio ALBO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1071

477 So.2d 1071

10 Fla. L. Weekly 2437

Arsemio ALBO, Appellant, v. The STATE of Florida, Appellee.

No. 84-1945.

District Court of Appeal of Florida,

Third District.

Oct. 29, 1985.

Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Mark J. Berkowitz, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.

SCHWARTZ, Chief Judge.

The defendant below appeals from an order placing him on probation for carrying a concealed firearm, entered pursuant to a nolo plea which reserved the right to challenge the denial of his motion to suppress the gun in question. Albo was stopped by Officer Faria of the City of Miami police on a traffic infraction for which he would have otherwise been merely given a ticket. When, however, a routine computer check effected through the police radio indicated that Albo's license was under suspension for failing to pay a previous traffic fine, he was arrested for driving with a suspended license. Incident to the arrest, the officer searched the vehicle and found a pistol concealed under the armrest. Albo's motion to suppress the firearm was based on the admitted fact that the information provided the officer was incorrect: Albo had paid the fine and his license had been reinstated long before. But, as was stipulated at the hearing, the police computers had not been updated to reflect these facts "for a period of several months" before the stop. On the ground that the arresting officer had acted in "good faith" reliance on the information provided him, the trial judge denied the motion to suppress. We disagree and reverse.

Our decision is controlled by the rationale ¹ of Pesci v. State, 420 So.2d 380 (Fla. 3d DCA 1982), in which this court invalidated a search effected, like this one, in response to a radio check which stated that, although it had in fact been quashed two months earlier, there was an outstanding alias capias for the defendant's arrest. In accordance with unanimous authority on the point, ² we held, reversing the trial court's denial of suppression on the basis of the arresting officer's good faith:

An otherwise illegal arrest is not insulated from challenge by the fact that the executing officer relied on erroneous radio information dispatched by a fellow officer or employee. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

We hold, as has the New York Court of Appeals, that an arrest is invalid when the arresting officer acts upon information in criminal justice system records which, though correct when put into the records, no longer applies and which, through fault of the system, has been retained after the information should have been removed. People v. Jennings, 54 N.Y.2d 518, 446 N.Y.S.2d 229, 430 N.E.2d 1282 (C.A.N.Y.1981).

Pesci, 420 So.2d at 382.

The trial court nevertheless held, and the state urges, that Pesci has been undermined, indeed destroyed, by the subsequent adoption of a so-called "good faith exception" to the exclusionary rule in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We entirely reject this position. Pesci, in common with virtually every case on the issue, is founded upon the Supreme Court's earlier decision in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Whiteley involved the "fellow officer" or "collective knowledge" rule under which the propriety of a warrantless arrest is determined not alone by whether the arresting officer has personal knowledge of facts which show probable cause, but by whether other policemen who have directed the arrest do so. Whiteley makes very clear, however, that the rule works both ways: to validate an arrest when the responsible officers have probable cause and to vitiate it when, as here, none objectively exists. Thus, the court said:

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

Whiteley, 401 U.S. at 568, 91 S.Ct. at 1037, 28 L.Ed.2d at 313.

It is clear, even on its face, that the Leon decision did not affect the viability of this principle. The exception to the exclusionary rule stated in Leon specifically applies to a case in which "an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope." Leon, 468 U.S. at ----, 104 S.Ct. at 3420, 82 L.Ed.2d at 697; in that instance the fact that the magistrate had erroneously found probable cause will not result in a suppression of evidence seized under the warrant. The explicitly-stated basis for this holding was the determination that the interest in deterring unlawful police conduct, which is the foundation of the exclusionary rule, is not implicated in such a case. This is because, on the one hand, the situation involves "no police illegality and thus nothing to deter," and, on the other, exclusion would have no "significant deterrent effect on the issuing judge or magistrate" who made the underlying error. Id. at ----, 104 S.Ct. at 3420, 3418, 82 L.Ed.2d at 697, 694. Plainly, these considerations have no effect upon a case like Pesci or this one in which no judicial determination was involved and the arrest was based instead wholly upon erroneous information supplied by the law enforcement authorities themselves. This point was made by Leon's own reaffirmation of the principle and holding of Whiteley:

References to "officer" throughout this opinion should not be read too narrowly. It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a "bare bones" affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971). [emphasis supplied]

Leon, 468 U.S. at ----, 104 S.Ct. at 3421 n. 24, 82 L.Ed.2d at 698 n. 24.

Any doubt about the inapplicability of Leon to a case in which the arresting officer, although in individual "good faith," acts in reliance upon objectively incorrect information supplied by other police sources, has been dissipated by the recent, post-Leon decision in United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Hensley directly applied the Whiteley probable cause-arrest rule to a Terry stop effected to investigate a prior crime. It held that a stop based on a flyer bulletin is permissible when the officers who issued it had a founded suspicion that the designated person had committed an offense. But the court emphasized that just as the police may permissibly act upon their collective knowledge, so they are restrained by their collective ignorance.

If the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment. In such a situation, of course, the officers making the stop may have a good faith defense to any civil suit. [emphasis supplied]

* * *

* * *

Assuming the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop....

Hensley, 469 U.S. at ----, 105 S.Ct. at 683, 83 L.Ed.2d at 614-15.

As the Fourth District said in Dean v. State, 466 So.2d 1216 (Fla. 4th DCA 1985), even without the confirmatory benefit of Hensley:

A more difficult question is the effect of the supposed warrant. There was no real evidence of a warrant, other than the officer's telling appellant that the police records showed an outstanding warrant. As said in Martin v. State, 424 So.2d 994, 995 (Fla. 2d DCA 1983), "An otherwise illegal arrest cannot be insulated from challenge by the fact that the executing officer relied on erroneous radio information dispatched by a fellow officer or employee" (citing Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)). The state tries to discredit Martin and Pesci v. State, 420 So.2d 380 (Fla. 3d DCA 1982), by citing the recent holding in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon had to do with exclusion of evidence obtained in reliance upon a search warrant later found to be invalid, and held that the rule does not bar such evidence. Reliance upon Leon is unfounded as the questions involved in suppression of evidence obtained by a search warrant that was subsequently found invalid are entirely different from those involved in the propriety of resisting an invalid arrest warrant. The two have different roots, are designed to remedy different evils, and involve different policy considerations. The arrest being unlawful, appellant could not be guilty of resisting arrest without violence.

466 So.2d at 1217-18. It is thus clear (a) that the "good faith" required by Leon--which means an objectively considered reasonable basis for police action, 468 U.S. at ----, 104 S.Ct. at 3420 n. 20, 82 L.Ed.2d at 696-97 n. 20--refers to the knowledge and information possessed by the law enforcement community as a whole,...