D.A.H. v. State, 96-03494

• Decision Date: 10 July 1998
• Docket Number: No. 96-03494,96-03494
• Parties: 23 Fla. L. Weekly D1638 D.A.H., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 195

718 So.2d 195

23 Fla. L. Weekly D1638

D.A.H., Appellant, v. STATE of Florida, Appellee.

No. 96-03494.

District Court of Appeal of Florida Second District.

July 10, 1998.

Rehearing Denied Sept. 15, 1998.

James Marion Moorman, Public Defender, and Joanna B. Conner, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Appellee.

PATTERSON, Judge.

D.A.H. appeals from his adjudication and commitment for possession of cannabis with intent to sell and obstructing an officer without violence. He contends that the trial court erred in denying his motion to suppress. We affirm the trial court's denial of the suppression because the police had probable cause.

Officer Elias Vazquez of the Tampa Police Department testified at the suppression hearing as to his training and experience in detecting narcotics and estimated that he had made 300 narcotics arrests. While on patrol, Vazquez had observed, from about thirty feet away, D.A.H. make several hand-to-hand transactions with people in vehicles. He saw an exchange of money for small packages. His training, experience, and knowledge of the area told him he was watching drug transactions in process. When D.A.H. saw Vazquez, D.A.H. fled and the officer did not pursue. About twenty minutes later, at a nearby intersection, he observed D.A.H. walking. Vazquez stopped D.A.H., patted him down, found a plastic bag of marijuana, and arrested him.

The sole question here is whether Vazquez's earlier observations gave rise to probable cause for the stop and search of D.A.H. Cases from this court with similar facts have resulted in different conclusions. In Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994), we determined that the officer lacked probable cause. In Revels v. State, 666 So.2d 213 (Fla. 2d DCA 1995), we held that probable cause existed. Relying on this court's more recent pronouncement in Revels,

Affirmed.

THREADGILL, A.C.J., concurs.

CASANUEVA, J., dissents with opinion.

CASANUEVA, Judge, dissenting.

I respectfully dissent. Because I conclude the facts presented by the State did not rise to the level of probable cause pursuant to Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994), I would hold that the trial court erred in denying D.A.H.'s motion to suppress. Moreover, applying the factors identified in Revels v. State, 666 So.2d 213, 216-217 (Fla. 2d DCA 1995), upon which the majority relies, to the totality of the facts and circumstances presented herein, I believe results in the identical determination.

The majority has concluded the officer's observations of D.A.H.'s three prior transactions coupled with the officer's education, experience, and knowledge of the general area, but not of the specific location nor of D.A.H., meet the standard of probable cause. Probable cause to arrest a person exists "when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it." Id. at 215. See Blanco v. State, 452 So.2d 520 (Fla.1984); Shriner v. State, 386 So.2d 525, 528 (Fla.1980). Although the standard for probable cause is less than proof beyond a reasonable doubt, the standard must be met with more proof than conduct that is "at least equally consistent with non-criminal activity." Angaran v. State, 681 So.2d 745, 746 (Fla. 2d DCA 1996). In comparison, founded suspicion is "suspicion that has factual foundation in the circumstances observed by the officer, when interpreted in light of the officer's knowledge." Martin v. State, 658 So.2d 1153 (Fla. 2d DCA 1995); Saadi v. State, 658 So.2d 112 (Fla. 2d DCA 1995). The State proves founded suspicion when it identifies specific and articulable facts which, coupled with rational inferences from those facts, reasonably indicate that criminal activity has occurred. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Doney v. State, 648 So.2d 799 (Fla. 4th DCA 1994), the Fourth District concluded that neither founded suspicion nor probable cause existed where a law enforcement officer observed a black male give something small with his thumb and forefinger to another, and, in return, receive paper currency. The court reached this determination despite the officer buttressing his observation with his conclusion that the observed behavior was a drug transaction. He based his conclusion upon his experience in over 1,000 drug arrests and his observation of at least 1,000 hand-to-hand exchanges. Our court, in comparison, has determined that an officer's observation of a white powdery...