Holmes v. State, 88-498

• Decision Date: 05 October 1989
• Docket Number: No. 88-498,88-498
• Citation: 549 So.2d 1119,14 Fla. L. Weekly 2334
• Parties: 14 Fla. L. Weekly 2334 Tiffany Renee HOLMES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1119

549 So.2d 1119

14 Fla. L. Weekly 2334

Tiffany Renee HOLMES, Appellant, v. STATE of Florida, Appellee.

No. 88-498.

District Court of Appeal of Florida First District.

Oct. 5, 1989.

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

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff and Helen Nelson, Asst. Attys. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Tiffany Holmes pleaded nolo contendere to a charge of unlawful possession of cocaine in violation of section 893.13(1)(f), Florida Statutes (1987), reserving the right to appeal the denial of her motion to suppress. On this appeal she contends that the facts presented by the state were insufficient to establish the requisite probable cause to conduct the search and seizure without a warrant. Finding merit in her argument, we reverse.

Holmes was stopped by the police while driving an automobile registered to one Grover Fields. The police officers had received a tip from a reliable confidential informant (he had been used six to twelve times before and had given reliable information "probably five or six times") that a red Oldsmobile with tag number 771 AYN, parked at a certain location, was transporting a quantity of cocaine. The officer testified she could not remember if the informant called law enforcement or whether the police met him in person; that she did not recall the exact conversation; that the informant did not say how long the car had been at the described location and was not sure that it would still be there in the evening; and that the informant did not know where the drugs were located in the car and did not know who would be driving the car. The officer could not remember if the informant said he even saw the drugs and could not remember how the informant knew drugs would be in the car. The informant did not know appellant Tiffany Holmes and did not know what quantity of drugs were in the car.

About forty-five minutes after receiving the tip the police commenced observing the Oldsmobile. They checked the license plate identification and learned the vehicle was registered to Grover Fields, a suspected drug dealer. After some fifteen minutes, several unidentified persons got in the car and drove away. The police followed and stopped the vehicle based solely on the informant's tip. There was no traffic infraction or other reason for the stop. The police did not know who was in the car until after the vehicle had been stopped.

After stopping the car, the officers requested permission to search it but appellant refused to give her consent. All occupants were ordered out of the car and searched, but no weapons or drugs were found. The police then conducted a thorough search of the entire interior of the car, including the console and glove compartment areas and the trunk of the car, but did not find any weapons or drugs. Appellant's purse was located between the driver's seat and the console, and while appellant remained outside the car, her purse was searched. This search disclosed plastic straws that were subsequently tested and found to contain cocaine residue. This was the only illicit drug found, and it formed the basis of the charge of illicit possession of a controlled substance filed against appellant.

The court denied appellant's motion to suppress, stating that "the informant ... was himself reliable. The reliability of the information furnished by such informant is supported in some degree by the fact that the automobile described by the informant was, in fact, located in the area described by the informant." (R. 40.) The court, in accepting appellant's plea, recognized that the disposition of the motion to suppress would be dispositive of the case.

Appellant contends that the state failed to show, by the evidence of record, that the police had a reasonable articulable suspicion that criminal activity was afoot at the time they stopped appellant's car, and did not have probable cause to stop and search the vehicle or the purse as a consequence of the informant's "tip". She further argues that even if the police had a reasonable suspicion to stop the car and frisk the driver and occupants pursuant to section 901.151(2), Florida Statutes (1987), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to do so exceeded the reasonable bounds permitted by the statute...