Butler v. State, 92-3090

• Decision Date: 15 March 1994
• Docket Number: No. 92-3090,92-3090
• Citation: 634 So.2d 700
• Parties: 19 Fla. L. Weekly D585 Yama BUTLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 700

634 So.2d 700

19 Fla. L. Weekly D585

Yama BUTLER, Appellant, v. STATE of Florida, Appellee.

No. 92-3090.

District Court of Appeal of Florida First District.

March 15, 1994.

Rehearing Denied April 22, 1994.

Nancy A. Daniels, Public Defender, Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Senior Judge.

Appellant Yama Butler pled nolo contendere to one count of possession of cocaine, in violation of Sec. 893.13(1)(f), Florida Statutes (1991), but expressly reserved his right to appeal the trial court's denial of his motion to suppress. We reverse.

About 11:30 PM on April 25, 1992, Officer Putnam "ran across" a known, confidential informant ("CI"). Putnam had used information from this informant on at least twenty occasions since February 1 of 1992, and sixty to seventy percent of these tips had resulted in felony arrests. On this occasion, the CI told Putnam a black male about 5'10" tall, wearing a black jacket, white t-shirt and blue jeans was selling powdered cocaine on the sidewalk in front of 726 West Beaver Street (a "high drug area"). ¹ He also told Putnam the individual liked to wrap the cocaine inside rolled-up one-dollar bills he kept in his pants pocket. There is no record evidence indicating the CI told the officer he had personally seen the cocaine or that the individual had tried to sell some to him.

Within fifteen minutes of receiving this tip, Putnam and another officer saw appellant standing on the sidewalk in front of a house on 726 West Beaver Street. Appellant's clothes matched the description given by the informant, and Putnam noted the only other black male in the area was over six feet tall. When Putnam arrived, he did not see appellant engaged in any action or exchange (i.e., he was not talking to anyone, walking up to anyone, etc.). Putnam admitted he had no reason to believe the appellant was armed in any way. Nevertheless, Putnam "rode up, saw the described suspect standing on the sidewalk in front of the house, ... jumped out of the car and just stopped him and patted him down immediately for officer's safety for weapons." ² On patting him down, Putnam felt a large, soft bulge in appellant's left, front pants pocket, which he believed to be money. He testified he knew it was not a weapon. He further testified he did not see the bulge in the appellant's pocket before frisking him because appellant's jacket "pretty much covered up the pocket."

Putnam asked appellant what the bulge was and he responded it was twenty-eight one-dollar bills. Putnam then reached into appellant's pocket and retrieved the folded money (i.e., twenty-seven or twenty-eight bills), but found no cocaine. He asked appellant if he had any more money in his pocket, to which he either replied "no" or "I don't know." Putnam then reached into the pocket again, retrieving another folded dollar bill. This bill contained powdered cocaine. Putnam then arrested appellant.

Appellant moved to suppress the contraband as the fruit of an illegal search. The trial court denied the motion, finding there was probable cause for a warrantless search predicated on the information received from a previously reliable CI considering the totality of the circumstances.

On appeal, appellant argues the trial court erred in denying his motion because the contraband was obtained as a result of a warrantless search. Moreover, the officer lacked probable cause to search his pocket for contraband. Although the informant's credibility may have been established, appellant contends this was not sufficient, even under the totality of the circumstances standard, to overcome Putnam's failure to corroborate the tip, or to overcome the lack of detail as to the tip's source. In response, the state argues no warrant was required because there was probable cause to arrest and the search was incident to that arrest. Although the informant did not state he had personally observed the cocaine, the State contends such "first-hand" knowledge may be inferred from the detailed information contained in the tip.

The issue here is whether Officer Putnam had probable cause to search the defendant incident to an arrest. A "search incident to an arrest may precede formal arrest so long as ... probable cause to arrest existed absent the result of the search." Wright v. State, 418 So.2d 1087, 1091 (Fla. 1st DCA 1982) (citing Rawlings v. Kentucky, 448 U.S. 98, 110-111, 100 S.Ct. 2556, 2564-2565, 65 L.Ed.2d 633 (1980)), pet. for rev. denied, 426 So.2d 29 (Fla.1983). This court has defined "probable cause" as follows:

Probable cause exists where the facts and circumstances, as analyzed from the officer's knowledge, special training and practical experience, and of which he has reasonably trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion than an offense has been committed.

City of Jacksonville v. Alexander, 487 So.2d 1144, 1146 (Fla. 1st DCA 1986). To determine if sufficient probable cause exists in situations involving tips from confidential informants, a "totality of the circumstances" approach is used. Hopkins v. State, 524 So.2d 1136, 1137 (Fla. 1st DCA) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), rev. denied, 531 So.2d 1353 (Fla.1988). In this approach, the CI's veracity, reliability and the basis of knowledge remain highly relevant in assessing the value of the CI's tip. Id.

This court has held that a tip from a reliable CI "may form the basis of probable cause to conduct a search and seizure ... provided it is sufficiently detailed and is verified and independently corroborated by evidence other than by the fruits or information obtained as a consequence of the search." Holmes v. State, 549 So.2d 1119, 1121 (Fla. 1st DCA 1989) (emphasis supplied). Corroboration of a tip may occur through police observation of an individual's present suspicious behavior or through police observation of an individual's activities, even if noncriminal in nature, which the CI predicted would occur in the future. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (probable cause to search and arrest individual where known, reliable CI gave police detailed physical description of individual and said he would be arriving on inbound train from Chicago with drugs); Lindsey v. State, 523 So.2d 180 (Fla. 1st DCA 1988) (motion to suppress properly denied where CI told officers location of drugs on defendant's person and surveilling officer observed defendant "hand passing" something to numerous persons); State v. Sampson, 616 So.2d 93 (Fla. 5th DCA 1993) (probable cause to arrest where known, reliable CI told police defendant had cocaine for sale, police independently observed defendant arrive at the location designated for the drug deal, and during transaction, other suspect stated the cocaine belonged to the defendant); State v. Maya, 529 So.2d 1282 (Fla. 3d DCA 1988) (probable cause found where known informant gave police information and police independently observed conduct consistent with drug transaction and content of tip); State v. Diaz, 474 So.2d 903 (Fla. 5th DCA 1985) (probable cause to search and arrest where police independently observed events known, reliable CI predicted would occur). The rationale for finding probable cause in police verification of seemingly innocent activities is that a CI's prediction of the future actions of a third party indicates some "inside information" or information not easily accessible to the public at large. See Illinois v. Gates, 462 U.S. at 245, 103 S.Ct. at 2336.

In Holmes v. State, 549 So.2d 1119 (Fla. 1st DCA 1989), police received a tip from a reliable CI that a red Oldsmobile with a certain tag number was parked at a specific location and was transporting cocaine. The CI did not know where the drugs were located in the car or who would be driving the car. The officer could not recall if the CI had told him how he knew the car contained contraband. About forty-five minutes later, the police began observing the Oldsmobile and learned the car was registered to a suspected drug dealer. Some people got in the car fifteen minutes later and drove away. The police stopped the car based solely on the informant's tip. The court held the trial court erred in denying the motion to suppress because there were insufficient details in the CI's tip to establish probable cause. The tip failed to specify the exact location of the alleged contraband in the car, describe the specific drugs involved, describe the container for the drugs, or indicate the source of the informant's knowledge. The court found no evidence of how the CI came to the conclusion the car would be transporting drugs, and no evidence of independent corroboration by the police. Id. at 1121. Simply finding the car located in the spot indicated by the CI was insufficient to corroborate that it was involved in any illegal activity. Id. But see Wooten v. State, 385 So.2d 146 (Fla. 1st DCA), rev. denied, 392 So.2d 1381 (Fla.1980) (sufficient probable cause found where court inferred CI's personal knowledge of the contraband and police verified time, place, car and defendant's clothing).

Although a different outcome was reached in Hopkins v. State, supra, where this court found probable cause to conduct a warrantless search based on information received from a CI, the facts there were admittedly unique. In Hopkins, a reliable CI was wired and on the scene when he relayed a detailed description of an individual selling fifty dollars worth of rock cocaine at a specific address. Within three minutes of receiving the tip, the officers located the person matching the description and began to search him. The court noted:

The tip here describes a man's dress, his whereabouts, and the exact amount of drugs in his possession. The only...