Gustafson v. State, 69--714

Citation243 So.2d 615
Decision Date08 February 1971
Docket NumberNo. 69--714,69--714
PartiesJames E. GUSTAFSON, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James M. Russ and Michael F. Cycmanick, of Law Offices of James M. Russ, Orlando, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and John Paul Jones, Asst. Atty. Gen., West Palm Beach, for appellee.

CROSS, Chief Judge.

Appellant-defendant, James E. Gustafson, appeals an order of probation withholding holding adjudication of guilt in a nonjury trial on a charge of unlawful possession of marijuana. We reverse.

At approximately 1:30 a.m. on Sunday morning, January 12, 1969, appellant was driving an automobile in the City of Eau Gallie. A police officer of the city on routine patrol was following and observed appellant's vehicle weave slightly, the left wheels crossing into another traffic lane. The officer stopped the vehicle only 'to find out why he had been driving that way, if he had been drinking or something,' with no intention of making an arrest for reckless driving.

Upon stopping the vehicle, the officer asked for appellant's driver's license. Appellant informed the officer he was a student and had left his driver's license in the dormitory room at Melbourne. Appellant was then arrested for failure to have a driver's license in his possession, searched, placed in the patrol car and taken to the police station. A companion riding in the vehicle as a passenger was also searched.

During the search the officers took from appellant's coat pocket a cigarette package and proceeded to examine its contents. The examination revealed the existence of several home-made cigarettes. The officer then asked appellant if they were marijuana cigarettes, and the appellant ultimately replied that they were. Upon arrival at the police station, the patrolman delivered the cigarette package and its contents to one of the city's detective lieutenants, who examined the cigarettes and made a preliminary determination that the cigarettes contained marijuana. Appellant was then charged with possession of marijuana. He was subsequently advised of his constitutional rights.

By motions prior to trial and at the non-jury trial appellant by objections challenged the constitutionality of the arrest, the search, seizure, admissibility of the tangible evidence and statements, and the statute upon which the information was based. Needless to say, the motions and objections were denied. The trial court determined appellant was guilty, withheld adjudication of guilt and placed appellant on probation. Hence this appeal.

On appeal appellant raises six points: (1) that the initial stop and detention was unreasonable and thus unlawful under the fourth amendment; (2) that the officer failed to give Miranda warnings upon stopping the automobile, thus rendering all statements and evidence obtained thereafter inadmissible; (3) that the officer had no authority to take appellant into custody for failure to have a driver's license in his possession; (4) that the officer had no authority to conduct a search of appellant's person incident to an arrest for a minor traffic violation; (5) that the evidence was insufficient to establish that the contents of the cigarettes were narcotic; and, (6) that the applicable statute cannot constitutionally proscribe the possession of botanical substances that are not narcotic.

In support of the first contention, appellant asserts that the initial 'seizure' of appellant's person was without probable cause, and that any evidence discovered incident to the 'illegal arrest' should have been suppressed.

The fourth amendment to the United States Constitution and section 12 of the Florida Declaration of Rights, F.S.A., secure the people against unreasonable searches and seizures and provide certain requirements for the issuance of a warrant. Traditionally, these provisions have been applied to arrests and searches and seizures, with the test of probable cause being applied where no warrant is issued.

In Florida an arrest has been defined as the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime. Essentially, four elements are required in an arrest: (1) a purpose or intention to effect an arrest under a real or pretended authority; (2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) a communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Melton v. State, Fla.1954, 75 So.2d 291.

In certain circumstances an arrest is effectuated when the vehicle in which the person to be arrested is riding is stopped, since the officer has effectively interrupted and restricted his liberty of movement. Henry v. United States, 1959, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. This rule has been applied where the arresting officer had probable cause to believe the driver of the vehicle was carrying moonshine, United States v. Davis, W.D.Pa.1967, 265 F.Supp. 358, and where an illegal U-turn was made in the officer's presence, United States v. Washington, D.C.1965, 249 F.Supp. 40.

Clearly, however, there are instances where a vehicle is stopped on a highway by an officer of the law where he does not have probable cause to make an arrest, and in fact, he does not intend to make an arrest unless he acquires additional information to warrant an arrest. Such a detention for the purpose of questioning the occupants pursuant to a routine investigation is not a technical 'arrest' which brings into play all the requirements of probable cause. Rios v. United States, 1960, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (routine questioning when a car stopped at an intersection in a neighborhood which had a reputation for narcotics activity); Nicholson v. United States, 5 Cir. 1966, 355 F.2d 80; Rodgers v. United States, 8 Cir. 1966, 362 F.2d 358 (check for a stolen car); Lipton v. United States, 9 Cir. 1965, 348 F.2d 591 (momentary detention to check operator's license); Busby v. United States, 9 Cir.1961, 296 F.2d 328 (routine investigation pursuant to reliable information).

Florida courts have recognized use of detentions which fall short of technical arrests. Chance v. State, Fla.App.1967, 202 So.2d 825 (investigation of a liquor store robbery); Lowe v. State, Fla.App.1966, 191 So.2d 303 (investigation of robbery suspects). A license check evidently falls into this category. City of Miami v. Aronovitz, Fla.1959, 114 So.2d 784.

Although a distinction is made from a formal arrest, stopping a vehicle to interrogate the occupants pursuant to a routine investigation still falls under fourth amendment protections against unreasonable searches and seizures. For this purpose, the act of an officer in stopping an automobile and approaching it while armed and in uniform constitutes a Seizure of the person, no matter how brief the detention. Albeit for a short time, the liberty of the occupants of the car is restrained just as much as if the officer had made a formal arrest and then subsequently released the 'arrested' individuals. A similar distinction was at issue in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889:

'It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime--'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.'

In the opinion for the majority, Chief Justice Warren warned against drawing distinctions between types of police detentions which would 'isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen.' The fourth amendment was held to come into play as a limitation upon police conduct even if the officers stop short of a technical arrest.

Query: In light of the fourth amendment, may an officer stop and detain the occupants of an automobile for anything less than the probable cause required for arrests and searches?

The constitutional prohibition against unreasonable searches and seizures makes no distinction between informal detention without cause and formal arrest without cause, but there is a difference between the 'cause' required. Wilson v. Porter, 9 Cir. 1966, 361 F.2d 412. In Terry v. Ohio, supra, the court sought to balance the need to seize the person against the intrusion which it entails. The court held that in justifying the particular intrusion the officer must point to facts which together with rational inferences from them reasonably warrant the intrusion. Simple good faith on the part of the officer is not enough. An objective standard must be used to test the reasonableness of the detention:

'(W)ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? * * * Anything less could invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.' Terry v. Ohio, supra.

The test has also been stated as follows:

'But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers would have had reasonable grounds for their actions. A Founded suspicion (supplied) is all that is necessary, some basis from which the court can determine that the detention was...

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