Carr v. State, 77-300
| Citation | 353 So.2d 958 |
| Decision Date | 13 January 1978 |
| Docket Number | No. 77-300,77-300 |
| Parties | Stephen Patrick CARR, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jack O. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
Stephen Patrick Carr, appellant herein, was charged with possession of a controlled substance and paraphernalia. Appellant filed a motion to suppress evidence which the trial court denied.
Appellant, thereafter, entered a plea of nolo contendere, was sentenced to a year and a day and this appeal ensues.
Appellant contends that the trial court erred in denying his motion to suppress evidence. We agree and reverse.
At the suppression hearing, appellant and the state stipulated to the following statement of facts:
(a) Defendant was approached by Officer Blodgett of the Dunedin Police Department and questioned regarding his presence in a residential area at 10:30 P.M. on August 16, 1976.
(b) At the time, the defendant was outside his vehicle and explained his presence, giving proper identification, as requested by the officer.
(c) Even though the defendant was outside his vehicle, Officer Blodgett shined his flashlight into the vehicle "to check the interior", where he observed two hand-rolled cigarettes.
(d) Officer Blodgett went into the vehicle, seized the hand-rolled cigarettes and examined them and their contents.
(e) Officer Blodgett determined the cigarettes appeared to contain marijuana and placed the defendant under arrest for misdemeanor possession of marijuana.
(f) Officer Blodgett then reached back into the vehicle and searched a folded blanket finding what appeared to be "two lids of marijuana" and a rolling device.
(g) Defendant was arrested for felony possession and paraphernalia.
(h) Officer Blodgett requested Officer Mann to help him search the truck at which time additional items of contraband were seized.
The testimony of Officer Blodgett was also offered during the hearing. He stated when he saw the two cigarettes through the window he "knew" they were marijuana cigarettes because they were unevenly rolled and twisted at the end. Actually, he could not really see any marijuana. On the basis of this evidence and the stipulated statement of facts, the trial court found the seizure of the marijuana cigarettes proper. We disagree.
Officer Blodgett did not have a search warrant at the time of the seizure of the cigarettes and the subsequent search of appellant's vehicle. Therefore, the evidence obtained at that time was inadmissible to prove appellant's guilt unless one of the exceptions to the warrant requirement was applicable to the situation. Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1975). After extensive review of the record, we can find no such exception.
The state argues that the search and...
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...BARKETT, Justice. We have for review Caplan v. State, 515 So.2d 1362 (Fla. 4th DCA 1987), because of conflict with Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the opinion The questions presented by this case are (1) whether ......
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