Harris v. State, 77-1080
| Decision Date | 16 December 1977 |
| Docket Number | No. 77-1080,77-1080 |
| Citation | 352 So.2d 1269 |
| Parties | Doyle James HARRIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
By information appellant Harris was charged with possession of greater than five grams of marijuana. Appellant filed a motion to suppress the marijuana which was denied. He thereafter entered a plea of no contest to the charges, specifically reserving his right to appeal the denial of his motion to suppress. Appellant was fined and placed on probation. He argues that the trial court erred in denying his motion to suppress. We agree and reverse.
At the hearing on the motion to suppress, the arresting officer testified that he observed appellant and a companion in the area of a ramp to an interstate highway. As a vehicle approached, the officer suspected they might be about to hitchhike. Appellant was seen carrying a brown paper sack. As the officer approached, appellant was observed putting a rolled up plastic bag in his pocket his companion left in a hurried manner. Suspecting that the plastic bag contained marijuana, the officer got out of his patrol car, pulled the plastic bag from appellant's pocket, and arrested him for possession of marijuana. At this point, the officer had no suspicion appellant had any weapon. The officer did not see what the plastic bag contained until he removed it. Prior to placing appellant in the patrol car, but after he was arrested, the officer opened the brown paper sack because he felt it could possibly contain either a weapon or more contraband. The sack contained more marijuana. After appellant was taken to the police station, he voluntarily gave the officer another bag of marijuana. The total weight of all the marijuana was ninety-three grams.
The initial search of appellant's person was not incident to a lawful arrest, because at the time of the search, appellant had not been arrested. Nor did the officer have probable cause to arrest appellant at the time of the search under the rationale espoused by this court in Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). The fact that the officer knew that marijuana was commonly carried in plastic bags gave rise to, at most, a mere suspicion that the bag appellant was seen...
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Caplan v. State
...rise to probable cause to search that automobile. Id. at 959. See Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981); Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977). This Court in P.L.R. specifically declined to reject or disapprove the analysis in Carr. On the contrary, we distinguish......