Bailey v. State

Citation295 So.2d 133
Decision Date24 May 1974
Docket NumberNo. 73--316,73--316
PartiesKathy Denise BAILEY, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Robert P. Foley and Philip G. Butler, Jr., of Foley & Colton, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.

MAGER, Judge.

This is an appeal from a judgment of conviction and sentence for possession of marijuana and cocaine. Defendant contends that error occurred in the proceedings below in several respects. Our review of the record in light of defendant's contentions leads us to conclude that defendant has not demonstrated reversible error. Two of the defendant's contentions, however, merit discussion and comment.

The defendant was a passenger in a 1946 Cadillac convertible traveling north on the Florida Turnpike at a very slow rate of speed. A highway trooper observed the car 'weaving', followed it for a mile before stopping it at approximately midnight on the night of September 9, 1972, to ascertain why it was being driven in such a manner. The defendant was seated in the front seat between the male driver and another male passenger. The trooper questioned the driver about the weaving on the road and asked for identification. The trooper was advised by the driver that he (driver) was not used to the car and that was the reason why it was weaving.

No arrest for any traffic violation was made as the trooper was apparently satisfied with this explanation. In his testimony before the trial court the trooper stated that 'everything checked out' and 'I couldn't detect anything, anything on him that could make him weave'. The record reflects, however, that the trooper decided to check the identification of the other two passengers (the defendant and the other male passenger). When the trooper walked around to the right side of the car the male passenger got out in order to get his driver's license identification which was in a brief case laying on the back seat. As the passenger alighted from the car the trooper observed a plastic bag 'sticking out from under the leg of the white female that was sitting in the middle on the front seat'. Upon observing the plastic bag, the trooper 'reached in and got the bag and opened it up'. The trooper found ashes which had a 'strong odor of marijuana'. At that point the trooper placed all three subjects under arrest for possession of marijuana and advised them of their rights.

The record below reveals that the trooper further testified that he obtained the permission and consent of the owner and driver of the car to search the car. The record further reflects that the trooper observed a cosmetic bag in the front seat of the car and asked the defendant if it belonged to her; she identified it as her case. The trooper testified that he 'asked her about searching it and she said yes'. A search of the cosmetic bag reflected that it contained marijuana and cocaine.

Some four months prior to the trial defendant filed a motion to suppress the evidence on the basis that such evidence was illegally seized. At the Time of trial the court indicated that it would hear the motion to suppress 'during the trial'. 1 Defendant suggests that the trial court was obligated ex mero motu to entertain the motion to suppress prior to trial and that the court's failure to do so constitutes reversible error. In any event, defendant further contends that the court erred in failing to grant defendant's motion to suppress.

We readily conclude that there is merit to defendant's motion to suppress some of the evidence seized, but not as to all of the evidence because of the additional element of 'consent' as reflected by the testimony in the record below and as will be further amplified. Essentially, defendant contends that the search of the automobile which produced the Plastic bag of marijuana (defense exhibit A) was illegal so that the arrest of the defendant based upon this evidence was also illegal; not only should this plastic bag be suppressed but any evidence obtained as a result of the search made incident to this illegal arrest, i.e. items within defendant's cosmetic bag, must also be suppressed as the unlawful fruits of an illegal search.

The constitution does not forbid all searches and seizures but only unreasonable searches and seizures. In order for the Warrantless search of the car in question to have been sustained it must have been predicated upon (a) a search incident to a lawful arrest, State v. Sanders, Fla.App.1970, 239 So.2d 120; State v. Gustafson, Fla.1972, 258 So.2d 1; and Reis v. State, Fla.App.1971, 248 So.2d 666; (b) a search based upon probable cause, Sanders, supra; Suiero v. State, Fla.App.1971, 248 So.2d 219; (c) a search based upon an emergency situation, Webster v. State, Fla.App.1967, 201 So.2d 789; or (d) a search based upon consent, James v. State, Fla.App.1969, 223 So.2d 52.

In addition, no 'search' occurs and evidence is deemed to have been properly 'seized' where it is so placed that it may be seen by an officer who is where he has a right to be, i.e. the so-called plain view doctrine. State v. Ashby, Fla.1971, 245 So.2d 225; Moore v. Wainwright, Fla.App.1971, 248 So.2d 262; Boim v. State, Fla.App.1967, 194 So.2d 313; and Powers v. State, Fla.App.1973, 271 So.2d 462. Under these latter circumstances such seizure does not constitute a 'search'.

Adverting to the facts of the case sub judice, it is clear that a 'search' occurred when the officer reached into the automobile to seize the plastic bag partially obscured under defendant's foot; such search was not made As an incident to a lawful arrest inasmuch as the facts clearly demonstrate that No arrest occurred based upon a traffic violation, cf. Gustafson,supra; an arrest occurred After the search. The arrest cannot justify the search and, in turn, the search justify the arrest. See Russell v. State, Fla.App.1972, 266 So.2d 92. Where an arrest is unlawful a subsequent search is unlawful and cannot be made legal by the fruit it produces. 29 Fla.Jur. Search and Seizure, Sec. 19.

The search producing the plastic bag of marijuana (not having been made incident to a lawful arrest) can neither be justified as having been based upon probable cause. As stated in Suiero v. State, supra, 248 So.2d at p. 221:

". . . Probable cause exists where 'facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543."

The testimony of the trooper unmistakably indicates that after he stopped the car 'for weaving' he apparently was satisfied that 'everything checked out'. He detected no odor of marijuana and offered no testimony whatsoever upon which it might be either gleaned or inferred that he (the officer) believed that an offense had been or was being committed. Probable cause cannot be based on mere suspicion, it must be based on facts known to exist and in this case there was no testimony of any facts known to exist upon which the search of the automobile could be predicated. See Keener v. State, Second District Court of Appeal, 290 So.2d 513, opinion filed February 22, 1974; Hearns v. State, Fla.App.1972, 262 So.2d 907; cf. F.S. Sec. 933.19, F.S.A.; see also Richardson v. State, First District Court of Appeal, 291 So.2d 253, opinion filed March 14, 1974.

Furthermore, there is no evidence or testimony that would give rise to the type of emergency situation which has been considered to be the exception to the rules governing searches and seizures so as to dispense with the necessity of securing a search warrant because of the circumstances then existing. See Webster v. State, supra.

Nor can the seizure of the plastic bag, which occurred when the officer reached into the automobile, be supported by the so-called 'plain view' doctrine inasmuch as the testimony below clearly reveals that whatever was contained in that bag was not 'fully disclosed and open to the eye and hand', Boim, supra. Compare with Moore v. Wainwright, supra, and State v. Ashby, supra.

Therefore, as to the plastic bag of marijuana we are of the opinion that under the applicable principles of law applied to the facts and circumstances of this case such plastic bag was the result of an unlawful search and seizure, and the consequent arrest of defendant having been predicated thereon was likewise unlawful.

The problem, however, and one not without some difficulty is as to the status and character of the evidence contained in defendant's Cosmetic bag, i.e., marijuana and cocaine. We would have no difficulty in concluding that such evidence should likewise be suppressed had the 'search and seizure' of the cosmetic bag been predicated upon the preceding illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

However, the facts in the case sub judice reflect the presence of another element upon which the lawfulness of the search is predicated, i.e. The consent of the defendant. It has been generally recognized that a search which is made pursuant to a consent is not unreasonable and therefore not in violation of state or federal constitutional rights. James v. State, supra. The evidence, however, must reflect a 'voluntary' consent and not one that was obtained by the coercion of government agents. See James, supra.

The evidence reflects testimony by the arresting trooper that defendant's consent to the search of her cosmetic bag was given freely and voluntarily; the testimony of the defendant and the defense witnesses, however, suggested that the defendant's consent was produced by coercion. A determination as to the voluntariness of a consent...

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