Barfield v. State

• Decision Date: 27 March 1981
• Docket Number: No. UU-419,UU-419
• Citation: 396 So.2d 793
• Parties: Jack Richard BARFIELD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 793

396 So.2d 793

Jack Richard BARFIELD, Appellant, v. STATE of Florida, Appellee.

No. UU-419.

District Court of Appeal of Florida, First District.

March 27, 1981.

As Corrected on Denial of Rehearing May 4, 1981.

Philip J. Padovano and William W. Corry, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Barfield appeals his conviction for possession of cocaine, entered following his conditional nolo plea which reserved the right to appeal the denial of his motion to suppress. He relies primarily upon St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978), as requiring reversal because it commands the trial court to make factual findings that the informant was credible or his information otherwise reliable, and, he argues that since no such findings were made in the instant case, the lower court erroneously denied the motion to suppress. The holding in St. John has since been eroded by Baxter v. State, 390 So.2d 475 (Fla. 1st DCA 1980), by permitting a probable cause determination to be upheld if the record is found adequate to support an implicit finding of veracity. The task of the reviewing court is to determine as in generally all other cases then, whether, in the absence of findings by the trial court, there is a record foundation supporting the ultimate determination made. After reviewing the record in the case before us, we are convinced that the court's probable cause holding was sustained by competent and substantial evidence.

The facts culminating in appellant's arrest and the subsequent search of his vehicle which uncovered a quantity of cocaine are, as revealed at the suppression hearing, the following: Officer Donaldson of the Tallahassee Police Department was informed by another officer in the vice department that the Drug Enforcement Administration had information that a "source" was in town to contact a "subject" about purchasing a large quantity of marijuana. Donaldson was informed by Officer Runo, who did not testify, that the source had been an informant in other drug transactions, and that the source would place a telephone call to the subject, named Jack. Donaldson met the source at a motel room where the latter made the call. A male answered, advising that Jack was not there but would return later. Donaldson instructed the source to call him when he made contact with Jack. Subsequently, the source called Donaldson with information he would meet Jack at room 207 in Howard Johnson's Motel to discuss a marijuana purchase. Donaldson joined Officer Newman and two other police officers who were surveilling the room. Newman told Donaldson he had seen a white male enter the room with the source. While they were continuing their surveillance, a woman came from the room and advised the officers that the suspect had discussed a marijuana and cocaine deal with them. Later, appellant left the room, entered a car in the parking lot, and drove away. The officers obtained the tag number of the car and ascertained it was registered to appellant, Jack Barfield. The source told the officers that he and appellant had discussed his buying 1,000 pounds of marijuana and that appellant would return in a few hours with 1/4 ounce of cocaine which the source would purchase for $400.

The officers waited for appellant in room 207. Approximately three hours later appellant returned to the room, and was arrested, read his rights and searched. The officers found no cocaine or other narcotics on him. Appellant was then asked the location of his car. He replied that his car had broken down, forcing him to hitchhike. Meanwhile, Officer Newman, who had remained outside the motel, radioed that he had stopped appellant's car, driven by Barfield's female companion. Donaldson entered the car, searched it without a warrant and opened the console between the seats and there found a bag of cocaine. The trial judge ruled that while the officers did not have probable cause to obtain a search warrant prior to appellant's return to the motel during the stakeout, once he returned, based upon their personal observations and the information received from their sources, there was probable cause to believe, as required by Section 933.02(4)(c), Florida Statutes (1979), that an illegal substance was "being held or possessed."

Although this case does not involve as did Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) an application for a search warrant, it is now clear that the same tools of analysis may be applied to a judicial proceeding, such as a pretrial suppression hearing, involving the propriety of an officer's warrantless search of an automobile. ¹ The rule of Aguilar and the heart of what Spinelli later dubbed "Aguilar's two-pronged test," 393 U.S. at 413, 89 S.Ct. at 489, was contained in the following single paragraph:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was "credible" or his information "reliable."

378 U.S. at 114-15, 84 S.Ct. at 1514 (citations omitted). It becomes immediately apparent that the two prongs of the Aguilar test are in the conjunctive, thus requiring the state to present evidence showing (1) the basis of the informant's knowledge that the narcotics were where the informant claimed they were, and (2) the veracity of the information provided. On the other hand, the two spurs of the veracity prong are in the disjunctive and so may be proven alternatively. One commentator has offered the following outline ² to illustrate the two requirements which must be independently established:

The Trustworthiness of Hearsay

I. The Basis of Knowledge Prong

II. The Veracity Prong

A. The Credibility Spur

B. The Reliability Spur

Both prongs may be satisfied by two methods; intrinsically or extrinsically. The magistrate is required to refer to extrinsic evidence only if the intrinsic proofs are deemed deficient under Aguilar's standards. Spinelli, 393 U.S. at 415, 89 S.Ct. at 588-89.

As to the first prong, Aguilar-Spinelli requires that the intrinsic recitations in the affidavit inform the magistrate how the source came about his information whether directly, through personal observations by the informant of the defendant's alleged criminal activity, or indirectly, through information received by the secondary source from tertiary sources, if the secondary source explains why his sources were credible and their information otherwise reliable. 393 U.S. 416, 89 S.Ct. 589. We consider that the evidence presented by the state at the hearing below was more than adequate to satisfy the test's first requirement since the officers unequivocally stated that their source's knowledge of criminal activity was based upon a conversation between the source and the defendant relating to an intended drug transaction.

Whether the proof furnished as to the second was sufficient is, however, a far more troublesome issue to resolve. The only attempt made to establish the source's credibility was the simple affirmative answer to a question whether the source had "been an informant in any other drug transactions ...." While we may accept this assertion as properly established, we don't know from this record whether the informant had given information leading to an arrest and/or convictions; we don't know the general type of the information which was previously furnished; nor do we know whether, as a result of an arrest, if any, incriminating evidence was seized which the informant had indicated would be turned up. Finally, we know nothing from the testimony whether the information given by the source had ever proved to be correct or incorrect. The meager information supplied at the motion to suppress hearing is hardly different in kind from the conclusory statement made by the affiant in Spinelli that his informant was reliable, but offered the magistrate no reasons in support of his conclusion. As in Spinelli, a magistrate "could not credit it without abdicating his constitutional function ..." that warrants not issue but upon probable cause. Id. To the same effect, see Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977); Weisberg v. State, 348 So.2d 385 (Fla.2d DCA 1977); Davis v. State, 376 So.2d 479 (Fla. 1st DCA 1979).

Clearly, the intrinsic evidence relating to the first disjunctive spur under the veracity prong did not establish the informant's credibility. It remains to be seen, however, whether the information supplied by the informant was properly accepted as otherwise reliable. Intrinsically, such proof may be offered by several distinct but generally recognized means: by a declaration against penal interest, by the affiant's knowledge of the defendant's reputation for illegal activity, or by information conveyed by a citizen-informer. ³ While United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), recognizes that both reputation and a declaration against penal interest may, when considered in connection with the other circumstances supplied in an affidavit, furnish probable cause to search, both factors were non-existent here. The testifying officers stated nothing about the defendant's prior reputation as a dealer in narcotics. Additionally, the source's information to the officers relating to the arrangements for a controlled buy of narcotics hardly comes within the category of a...