Jenkins v. State

Decision Date12 March 1980
Docket NumberNo. 79-157,79-157
Citation382 So.2d 83
PartiesPhilip H. JENKINS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Appeal from Circuit Court, Palm Beach County; Marvin U. Mounts, Jr., judge.

Edward A. Garrison of Kohl, Springer, Springer & Garrison, Palm Springs, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

AFFIRMED.

LETTS and GLICKSTEIN, JJ., concur.

HURLEY, J., dissents.

HURLEY, Judge, dissenting.

Today the majority upholds a warrantless vehicle search based upon hearsay information from a confidential informant who failed to divulge the source of his information. In my view the tip lacked substantial independent indicia of reliability and therefore I conclude the search of the vehicle fell below constitutionally mandated norms. I would reverse.

On December 20, 1977, at approximately 5:00 P. M., a confidential informant walked into the Jupiter police station. He told Officer Woodard that the defendant, Jenkins, was driving a brown Oldsmobile and would be leaving town with some drugs in his car. The informant went on to say that the vehicle was being repaired at a Gulf service station. With this information the police launched their investigation. Officer Bachman described his initial activities: " . . . I checked with the manager of that particular station in an attempt to find the vehicle or anyone who knew anything about it. This all proved negative as well as checking with the mechanic who worked for that station . . . ."

Approximately an hour later, the same confidential informant reentered the Jupiter police station and told Officer Woodard that Jenkins was leaving the parking lot of an apartment building located at the corner of First and Old Dixie Highway. He said that drugs were contained in a brown paper bag located on the front seat or front floorboard section of the vehicle. The police went to the designated location and saw Jenkins driving away. They followed and stopped him. They seized a brown paper bag from the right front floorboard section of the vehicle; it contained marijuana, a quantity of amphetamine pills, and a quantity of cocaine.

Jenkins moved to suppress the evidence. At the motion hearing, Officer Woodard testified that with the exception of what he had been told by Officer Bachman, he had no knowledge of the informant's past reliability. As to the source of the informant's present information, he responded as follows:

Q. In your conversation with the CI at the station, did he indicate how he knew the information or how he had obtained the information he was relating to you?

A. No, he didn't.

Q. You just accepted what he was saying as true?

A. Yes.

Q. He didn't say he had personally seen the bag or anything like that?

A. No. He didn't say he had personally seen the bag.

All of the testimony on the informant's past reliability came from Officer Bachman. His testimony, 1 vacillating and contradictory as it was, is accepted here in the light most favorable to sustain the trial court's ruling. McNamara v. State, 357 So.2d 410 (Fla.1978). This is done despite the fact that the trial court expressly rejected Bachman's claim that the bag was open with its contents in plain view.

Section 933.19, Florida Statutes (1979), adopts the rule formulated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which permits a warrantless search of a motor vehicle on the open highway where there is probable cause to believe that the vehicle contains contraband. Samuels v. State, 318 So.2d 190 (Fla.2d DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976). The requisite element of probable cause may be satisfied by hearsay information. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Indeed, hearsay may be supplied by a confidential informant whose identity need not be disclosed. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Maier, 366 So.2d 501 (Fla.1st DCA 1979); State v. Katz, 295 So.2d 356 (Fla.4th DCA 1974).

When a confidential informant is utilized, however, the police must demonstrate (1) that the informant is credible, and (2) that his information is reliable. State v. Bond, 341 So.2d 218 (Fla.2nd DCA 1976), cert. denied 348 So.2d 953 (Fla.1977). This is commonly known as the " 'two-pronged' Spinelli-Aguilar test", described in Davis v. State, 346 So.2d 141, 142 (Fla.1st DCA 1977), cert. denied 353 So.2d 679 (Fla.1977):

In Aguilar v. Texas, . . ., and Spinelli v. United States, . . ., the United States Supreme Court established a "two-pronged" test for sufficiency of affidavits for search warrants relying on information obtained from an informant. That test requires first that affiant state how the informer gained his information so that the magistrate can determine if the underlying circumstances justify a conclusion that probable cause for a search exists. Secondly, the magistrate must be provided with the reasons from which the affiant concludes the informant is reliable. (Citations omitted.)

In our case, one of the Spinelli-Aguilar tests is wholly unsatisfied. We have no idea how the informant obtained his information. It is not alleged that he personally observed the drugs in Jenkins' possession nor that he viewed the contents of the bag. Where a tip does not contain a sufficient statement of the underlying circumstances from which the informant concluded that the defendant was violating the law, the court must resort to a secondary evaluative process which was outlined by Mr. Justice Harlan in Spinelli, supra:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.

The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) provides a suitable benchmark. 393 U.S. at 416, 89 S.Ct. at 589.

Draper, it will be remembered is the case in which a police officer was told by an informant, known to the police officer to be reliable, that a man of a certain description would get off a certain train with a specified amount of heroin in his possession. The quantity of detail in the tip was overwhelming. So much so, that it was readily " . . . apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established." Id. at 417-418, 89 S.Ct. at 590.

Draper, then, is a "benchmark" having constitutional significance and so it is worth recounting the amount and specificity of detail present in the Draper tip. The informant said,

" . . . that Draper had gone to Chicago the day before (September 6) by train (and) that he was going to bring back three ounces of heroin (and) that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train." 358 U.S. at 309, 79 S.Ct. at 331.

Saying that Draper would be carrying "a tan zipper bag," and that he habitually "walked real fast," the informant gave the following physical description of Draper and of the clothes which he was wearing:

" . . . Draper was a Negro of light brown complexion, 27 years of age, 5 feet 8 inches tall, weighed about 160 pounds, and that he was wearing a light colored raincoat, brown slacks and black shoes." 358 U.S. at 309 n.2, 79 S.Ct. at 331 n.2.

I do not suggest there has to be a "mathematical match-up" in order to satisfy Draper, but there must be an equivalent degree of reliability. Draper, after all, is a substitute method of evaluation. It is less favored than the Spinelli-Aguilar approach for it forces us to garner indirectly what Spinneli-Aguilar provides outright evidence of reliability. Therefore, Draper must be applied with a careful and exacting eye. In our own case, a simple back-to-back comparison illustrates the inadequacy of the Jenkins tip.

                           DRAPER                        JENKINS
                ------------------------------------------------------------
                 (1) Type of drug:            (1) According to the first of--
                        Heroin.                   fficer who received the
                                                  tip the type of drugs was
                                                  unknown.  According to
                                                  the second officer (Bach--
                                                  man) the type of drugs
                                                  was "marijuana and some
                                                  other drugs."
                 (2) Amount of drugs:         (2) Amount--Unknown
                        3 ounces
                (3) Source of drugs:          (3) Unknown
                        Chicago
                 (4) Mode of transportation:  (4) Brown Oldsmobile.
                        Train.
                 (5) Location:                (5) The first information
                        Train station.            about the Gulf station
                                                  proved to be incorrect.
                                                  The second information
                                                  regarding the apartment
                                                  house parking lot was
                                                  correct.
                 (6) Name of defendant:       (6) Informant named Jenkins.
                        Draper.
                 (7) Physical description.    (7) None.
                 (8) Clothing description.    (8) None.
                 (9) Personal habits:         (9) None.
                        Walked fast.
                (10)
...

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2 cases
  • Jenkins v. State
    • United States
    • Florida Supreme Court
    • June 26, 1980
    ...court of appeal conflicts with other decisions and creates instability in the law. I would accept jurisdiction. * Jenkins v. State, 382 So.2d 83 (Fla. 4th DCA 1980).1 This recitation is extracted from an article to be published later this year in 32 U.Fla.L.Rev., Vol. 2 (Winter 1980), entit......
  • Stallworth v. Moore, No. SC02-863
    • United States
    • Florida Supreme Court
    • September 19, 2002
    ...case and disagreeing with the result reached by the majority. See Jenkins, 385 So.2d at 1357; see also Jenkins v. State, 382 So.2d 83, 83-88 (Fla. 4th DCA 1980) (Hurley, J., dissenting). Less than a month after the opinion in Jenkins issued, this Court extended its reasoning to those circum......

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