Bailey v. State

• Decision Date: 11 June 1975
• Docket Number: No. 45821,45821
• Citation: 319 So.2d 22
• Parties: Kathy Denise BAILEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 22

319 So.2d 22

Kathy Denise BAILEY, Petitioner, v.STATE of Florida, Respondent.

No. 45821.

Supreme Court of Florida.

June 11, 1975.

Rehearing Denied Oct. 17, 1975.

Philip G. Butler, Jr., of Foley & Colton, West Palm Beach, for petitioner.

Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for respondent.

WILLIAMS, Circuit Judge.

By Petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District, reported at Bailey v. State, Fla.App., 295 So.2d 133.Jurisdiction vests pursuant to Fla.Const. Art. V § 3(b).The decision conflicts with Talavera v. State, (Fla.App.1966)186 So.2d 811, Sagonias v. State, (Fla.1956)87 So.2d 252, Urquhart v. State, (Fla.App.1968)211 So.2d 79, andEarman v. State, (Fla.1972)265 So.2d 695.

Petitioner, defendant below, seeks review of the decision of the District Court of Appeal, Fourth District, affirming the trial court's refusal to grant petitioner's motion to suppress all of the physical evidence, and to reverse the conviction.

Defendant was convicted by a jury for possession of marijuana and cocaine, and she appealed.

Up to a point near the end of the incident leading to the arrest of defendant, there is practically no conflict in the testimony of all the witnesses.A Florida Highway Trooper observed a 1946 Cadillac convertible, with the top down, enter the Florida Turnpike at the Stuart entrance.The car contained three persons, all in the front seat; the defendant, a 17 yr. old female, between two males, all with long hair.The trooper began to follow as the car proceeded in a northerly direction.He followed the car for almost three miles.Traffic was fairly light.The car was proceeding at about 45 miles per hour and the trooper testified that the car was weaving to some extent, but, 'was not weaving all that bad.'In the almost three miles that he followed the car, it neither crossed the lane divider on the inside of the lane nor did it go off the roadway on the outside of the lane.He finally pulled the car over to determine why the car was proceeding in such a manner.After questioning the driver, the trooper was satisfied with the explanation that this particular automobile was new to the driver.The trooper also determined that the driver did not appear under the influence of an alcoholic beverage.He then checked the driver's license of the driver which appeared to be valid.He checked the license plate of the car with his headquarters by radio and determined that it was not reported stolen.The trooper testified that he then walked around to the other side of the car and asked the other two passengers for identification and that the male passenger exited the car to be better able to remove his identification to show to the trooper.The trooper then observed a plastic sandwich bag protruding from under the leg of the defendant who was still seated in the car.He picked up the bag and examined its contents.There were ashes in the bag which he determined by smell were marijuana ashes.He arrested all three persons for possession of marijuana and read them their Fifth Amendment rights.He testified that he received permission to search the car, and that during the search of the car he asked if a certain cosmetic bag belonged to the defendant; that she responded in the affirmative, and gave consent to a search of it.A search of the cosmetic bag revealed some marijuana and cocaine for which the defendant was arrested, prosecuted and convicted.

On the question of consent to search the car and cosmetic bag, there is considerable conflict in the testimony.

At some time prior to trial, defendant filed a motion to suppress the evidence as the result of an illegal search and seizure.There is a dispute as to whether the motion was ever set down by the defense for hearing prior to trial.There was a notice of hearing by defendant of all pending motions but the record does not clearly reflect whether there was any mention of the motion at the time noticed for such hearing.On the day of trial the defense announced ready to proceed on its motions.The Court stated that the motion to suppress would be heard during trial.A jury was selected and the trial commenced.The trial court denied the motion to suppress on the ground that consent had been given for the search.Defendant appealed from the ruling and the subsequent conviction.

The Fourth District Court of Appeal, in Bailey v. State, Fla.App., 295 So.2d 133, held that the seizure by the patrolman of the plastic sandwich bag and its contents was illegal and that those items should have been suppressed, and that the resulting arrest was illegal.However, the court held that the defendant subsequently consented to the search of her cosmetic bag freely and voluntarily so that the illegal contents of her cosmetic bag were admissible in evidence.The Appellate Court also held that the submission to the jury of the contents of the sandwich bag, and testimony concerning the initial arrest, although found to be improper, was not reversible error.Neither the State nor the defendant wholly agree with all the rulings of the Appellate Court.The State, although of course agreeing with the final overall ruling by the Appellate Court affirming the conviction of defendant, nevertheless maintains that the Appellate Court was incorrect in holding that the initial arrest of defendant and the search and seizure of the sandwich bag were illegal and that the contents of that bag should have been suppressed.The defendant's position is that the Appellate Court was correct in ruling that the initial search and seizure was illegal, but disagrees with the ruling of the Appellate Court that nonetheless the subsequent search and seizure was legal because of consent of the defendant, and disagrees with the Appellate Court that the trial court did not commit reversible error by hearing the motion to suppress during the jury trial.Defendant maintains that after the driver of the automobile had been checked out favorably by the trooper, everything following thereafter was improper: (1) that any further detention was illegal; (2) that demanding identification from defendant and other passenger was illegal; (3) that the search of the plastic bag was illegal; (4) that the resulting arrest of the parties was illegal; (5) that the resulting search of the automobile and defendant's cosmetic bag was illegal; (6) that the seizure of the contents of the cosmetic bag and its subsequent use as evidence against the defendant was illegal; (7) that as a result of the aforesaid illegal acts the search and seizure could not be validated by a consent; and (8) that at any rate, a valid consent was not given.

Defendant further cites as error the hearing of the motion to suppress during the trial, rather than before trial.

The State's position is that the checking of the passengers for identification was valid under the Florida, 'Stop and Frisk,' law, Florida Statute 901.151; that the search and seizure of the plastic sandwich bag was legal by virtue of the, 'open view doctrine;' that even if such search and seizure were to be illegal and followed therefore by an illegal arrest, the defendant gave a valid consent to the search of her cosmetic bag, thus validating the search and seizure.

We agree with the Appellate Court on most of its conclusions, but disagree on at least one which is a controlling factor in the final disposition of this case.We agree that the initial search and seizure of the sandwich bag was illegal and that the resulting arrest of all of the car's occupants was illegal.We disagree that the subsequent searches and seizures were legal by consent.

We agree with the Appellate Court that the motion to suppress should have been heard before trial.We ordinarily would have to consider fully whether reversible error resulted, but the point is moot in view of our holding that the search and seizure was illegal and that the motion to suppress should have been granted.

Commencing with the last paragraph on page 135 of the Appellate Court's opinion and proceeding through the first paragraph on page 137 thereof, the opinion sets forth an excellent account of the law of search and seizure relative to automobiles that we cannot improve upon, and hence is accepted by us in its entirety.

Suffice it to say that, as stated by the Appellate Court, except for the disputed question of consent, there could have been no legal search, seizure, arrest and admission into evidence of the physical contents of defendant's cosmetic bag.The question of consent developed only after a series of illegal actions by the arresting officer.

Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation.In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other.Perhaps some of the possibilities occurring to the officer were defective steering mechanism or that the operator was driving under the influence of alcohol or some other drug.At any rate, the officer did stop the car and diligently investigated all suspicious possibilities.He found no evidence that the driver was under the influence of alcohol, and was satisfied with the reason given by the operator for the moderate speed and slight weaving.He also checked the operator's driver's license and evidence of ownership, both of which appeared valid.He next checked by radio and found that the vehicle was not listed as stolen.

At this point the officer decided to check out the passengers.Also at this point there is no doubt that he had no right to check them.As candidly stated by the officer, there were at that time no...