Edwards v. State

• Decision Date: 27 October 1988
• Docket Number: No. BS-485,BS-485
• Citation: 532 So.2d 1311,13 Fla. L. Weekly 2398
• Parties: 13 Fla. L. Weekly 2398 Curtis EDWARDS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1311

532 So.2d 1311

13 Fla. L. Weekly 2398

Curtis EDWARDS, Appellant, v. STATE of Florida, Appellee.

No. BS-485.

District Court of Appeal of Florida First District.

Oct. 27, 1988.

Michael E. Allen, Public Defender, and Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and John M. Koenig, Jr., Tallahassee, for appellee.

BARFIELD, Judge.

Curtis Edwards appeals his conviction for possession of cocaine, asserting that the trial court abused its discretion in denying his motion to suppress the cocaine "rock" found in his pocket because he did not consent to the search and the police did not have probable cause to arrest him. We agree and reverse.

The officer who found the cocaine in appellant's pocket was training another officer when they approached a housing project where drug dealers often gathered under the oak trees, a signal to passersby they were "open for business." As they neared five people congregated under a tree, one of whom the officer knew to be a drug user and another he strongly suspected of being a drug dealer, he saw appellant lean down and speak to a man seated under the tree who made a quick movement as if to hide something under his leg. The officers stopped their patrol car, asked for identification, and approached the seated man who was appellant's brother.

Appellant was leaning against the tree. As he stood erect, a plastic bag containing crack cocaine fell from the tree and landed on the ground about five feet from him. The officers searched the people closest to the bag (appellant, his brother, and a man named Johnson) and found $300-400 rolled in a knot in appellant's pocket. The officer testified that this is how drug dealers often carry money, but admitted on cross-examination that other people also carry money this way. He stated that appellant was closest to the cocaine and that he had "good reason to believe that one, if not all, of the subjects who we had stopped and searched were involved in that cocaine."

Appellant gave the officers identification which was checked by computer, revealing no outstanding warrants for his arrest. Nevertheless, the officers told the three men they wanted to take them to the police station to get photographs and "find out who they are." Johnson protested, whereupon the officer advised him that "he's not under arrest but he could be placed under arrest." Johnson capitulated and, according to the officer, the other two men "never even really opened their mouth after it was brought up that I wanted to take them to the station."

The officer admitted on cross-examination that he had lied to them and that he actually intended to interrogate them once they reached the station. He testified that although he thought he had probable cause to arrest all three, he did not place them under arrest and told them they were not under arrest. He did not specifically recall whether he read them their Miranda rights, but testified that he usually advises defendants of their rights on the way to the station.

When they arrived at the station, he placed the three men in separate interrogation rooms and spoke to appellant's brother first, with no success. He stated that he then asked appellant, "You don't mind if we go ahead and do a thorough search of you," whereupon appellant "just stood up" and had no objections. The officer pulled appellant's pockets inside out and a small pebble of crack cocaine fell out. Appellant was charged with possession of the pebble. He was not charged with possession of the bag of cocaine. ¹

Appellant testified that he had been questioned for 15 or 20 minutes at the station, the officers trying to get him to say that the cocaine belonged to his brother. When the officer who had earlier searched him came back, he "come in there and told me to pull off all my clothes and he went and pulled my pockets inside-out." Appellant stated that he was never asked for consent, nor told he had a right not to be searched.

The State argued to the trial judge that it was irrelevant whether appellant was arrested at the scene or later at the station because the officer had probable cause to arrest based upon his observations and appellant's close proximity to the bag of cocaine, that whether Miranda warnings were given was immaterial, that nonverbal consent is enough, and that the court must view the evidence in the light most favorable to the State on a motion to suppress. Appellant's attorney argued that the officers were not justified in stopping or searching appellant, that therefore the State must bear the burden of proving a valid consent to search by clear and convincing evidence, that mere acquiescence to authority is not voluntary consent, and that the court could consider the fact that a consent form was not offered and that no one could corroborate the officer's testimony regarding appellant's alleged consent at the station.

The trial judge ruled that the officers had a founded suspicion to stop appellant because when they approached and asked for identification appellant moved and the cocaine fell, that the officers had probable cause to arrest appellant because of his proximity to the cocaine, and that the burden then shifted to appellant "to put on the testimony as to what happened subsequent to the inquiries made at the scene." He found that the officer had the authority to search appellant because he could have arrested him at any time. He noted the conflicting testimony regarding whether appellant consented to the search, but stated: "I have to look at it in the light most favorable to the State at this point. It may not be beyond a reasonable doubt. But, however, I will deny the Motion to Suppress." Appellant pled nolo contendere to the charge, reserving his right to appeal the denial of his motion to suppress.

The trial court erred in finding that the officers had probable cause to arrest appellant merely because he was the closest of five people to a baggie of cocaine which fell out of a tree in their presence. The test to determine probable cause to arrest is whether the facts and circumstances within the officer's knowledge prior to the search are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed and that the accused is the one who committed it. Benefield v. State, 160 So.2d 706 (Fla.1964). To support a finding of probable cause to arrest on a constructive possession theory, the State must establish by a factual showing that the arresting officer reasonably believed the accused had dominion and control over the contraband, knew it was in his presence, and knew of its illicit nature. Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). ²

Assuming that the officers had a founded suspicion of illegal activity justifying the stop of appellant and the others for identification and that the officers were then entitled to frisk them for weapons, the record shows that no weapons or drugs were found on the three men and that appellant presented identification which was checked and revealed no outstanding warrants. At that point, unless the officers had probable cause to arrest appellant for constructive possession of the baggie of cocaine, any further warrantless search or seizure was illegal unless appellant voluntarily consented to it. The officer's suspicion in this case that "all of the subjects who we had stopped and searched were involved with that cocaine" does not rise to the level of probable cause.

Mere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer had probable cause to believe that the person or persons closest to the contraband possessed it. Agee v. State, 522 So.2d 1044 (Fla. 2d DCA 1988); ³ Collier v. State, 509 So.2d 971 (Fla. 2d DCA 1987). ⁴ In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Court found the inference that persons who talk to narcotics addicts are engaged in criminal traffic in narcotics is not the sort of "reasonable inference" required to support an intrusion upon an individual's personal security.

The cases upon which the State relies, McNeil v. State ⁵ and State v. Byham, ⁶ are distinguishable on their facts. In the case at issue the officers observed nothing from which they could reasonably infer that appellant had control of the baggie or was even aware of its presence before it fell from the tree, both elements of constructive possession. Compare State v. James ⁷ and In the Interest of P.L.R. ⁸ to Williams v. State ⁹ and Nast v. State. ¹⁰

Without probable cause to arrest appellant, the search of his pants pocket at the police station was presumptively illegal unless the State could demonstrate by clear and convincing evidence that appellant freely consented to it. The State has at best demonstrated acquiescence to police authority under coercive circumstances. Because of the coercive setting and the officer's failure to notify him of his right to refuse the search request, appellant's compliance was merely acquiescence to authority and not a free and voluntary consent to search. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); ¹¹ Robinson v. State, 388 So.2d 286 (Fla. 1st DCA 1980); ¹² Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978). ¹³ The search was therefore illegal. Moorehead v. State, 378 So.2d 123 (Fla. 2d DCA 1980); ¹⁴ Pirri v. State, 428 So.2d 285 (Fla. 4th DCA), rev. den., State v. Pirri, 438 So.2d 834 (Fla.1983). ¹⁵

Furthermore, the trial court erred as a matter of law by using an incorrect standard for viewing the evidence at the suppression hearing which greatly reduced the burden of proof the State was required to shoulder. When the State seeks to use evidence seized without a warrant, the trial court must act as a neutral and detached magistrate in determining whether the State has met its burden of...