Hurt v. State

• Decision Date: 10 September 1980
• Docket Number: Nos. NN-58,NN-62 and NN-178,s. NN-58
• Citation: 388 So.2d 281
• Parties: Steven HURT, Hewey Lee Alday, Alexander Guriak, James McCardle, Thomas Edward Alexander and Michael Robert Sholl, Appellants, v. STATE of Florida, Appellee. to
• Court: Florida District Court of Appeals

Page 281

388 So.2d 281

Steven HURT, Hewey Lee Alday, Alexander Guriak, James McCardle, Thomas Edward Alexander and Michael Robert Sholl, Appellants, v. STATE of Florida, Appellee.

Nos. NN-58 to NN-62 and NN-178.

District Court of Appeal of Florida, First District.

Sept. 10, 1980.

Rehearing Denied Oct. 13, 1980.

Manuel W. James, North Miami Beach, Alvin E. Entin, North Miami Beach, and Clyde M. Taylor, Tallahassee, for appellants.

Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Appellants were convicted for possessing more than 100 pounds of cannabis with intent to sell after they pled nolo contendere, reserving their right to appeal the denial of their suppression motion, which, if reversed, would be dispositive of their cases. Finding that the officers had no right to make a warrantless entry into the building where the cannabis was seized, we reverse.

The facts in this case stem from those recited in Behr v. State, 376 So.2d 398 (Fla. 1st DCA 1979), where we upheld the warrantless search of co-defendant Behr's truck because the searching officers possessed probable cause to search before their entry. Since Behr was convicted only of the misdemeanor offense for possession of marijuana, we did not decide in that case whether the search of the warehouse was legal. Nevertheless, given our holding in Behr, we must necessarily assume that if the search of the warehouse were conducted with a warrant, probable cause would exist for the warrant's issuance. Our inquiry then is directed to whether the entry of the building and the subsequent seizure of cannabis found within it can be sustained in the absence of a search warrant.

Shortly after Behr was seen leaving the warehouse in his truck, he was stopped, arrested, and certain officers were instructed to return to the warehouse and "secure" it while other officers obtained a search warrant. The officers at the scene knocked on a rear door, announced "police" as an occupant began to open it, and, seeing what appeared to be bales of marijuana inside, pushed their way in, arrested the appellants and seized several tons of marijuana. In denying the motion to suppress, the court held that because the officers were lawfully on the premises for the purpose of securing the warehouse and detaining the occupants, if any, until a search warrant was obtained, they were privileged to seize that which they saw in plain view after a door was opened and before they crossed the threshold.

Factually this case is quite similar to Raffield v. State, 351 So.2d 945 (Fla.1977), where the state argued that a warrantless search of Raffield's barn, made shortly after the seizure of several vehicles in which marijuana was found, was required due to the searching officers' belief that a warrant could not be promptly obtained in a rural county and that the resulting delay might have contributed to the destruction of the marijuana found inside the barn. The court rejected these contentions, stating that while exigent circumstances may justify a warrantless search, none were there present since no attempt was made to secure a warrant and "(t)he timing of the drivers' arrest" did not establish an emergency situation permitting the entry. 351 So.2d at 947.

Here, the state contends its warrantless intrusion was vindicated by the plain view doctrine, which is an exception to the warrant requirement, permitting the admissibility of evidence "seized by an officer who has an independent justification for being present unconnected with the search against the accused and who inadvertently comes across an object which is obviously evident." United States v. Diecidue, 603 F.2d 535, 559 (5th Cir. 1979). The doctrine presupposes the officer's legal right to be where he was at the time the evidence was first seen. State v. Ashby, 245 So.2d 225 (Fla.1971); Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974). Here, the discovery of the marijuana was not inadvertent, nor were the officers legally at the opened door of the warehouse. True, their stated purpose for knocking was to secure the building and detain any persons who might be inside it. Yet they were there ultimately for the purpose of searching the premises which they had reason to believe contained marijuana. If the officers truly wished to detain any possible persons within, they were at most justified in surveilling doors and other possible exits from the building while they waited outside for a search warrant they believed would be forthcoming. Describing the inadvertence requirement, the Court, in Coolidge v. New Hampshire, 403 U.S. 443, 470-71, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971), stated: "(W)here the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, . . . . . . . (t)he requirement of a warrant poses no inconvenience . . . which is constitutionally cognizable in the legal system that regards warrantless searches as 'per se unreasonable' in the absence of 'exigent circumstances.' "

It is one thing for officers to be legally on the premises pursuant to an investigation, reasonably believing that persons are within who might provide information helpful to the case, and while there inadvertently see evidence of a crime, which they are then authorized to seize. Compare Menendez v. State, 368 So.2d 1278 (Fla.1979); State v. Ashby, supra; Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA 1977). It is an altogether different matter for them to use plain view as a pretext for a warrantless search of a building when they know a search warrant should first be obtained before entry is allowed.

The state, however, alternatively defends the...