Jenkins v. State
| Decision Date | 25 January 2006 |
| Docket Number | No. 2D03-4713.,2D03-4713. |
| Citation | 924 So.2d 20 |
| Parties | Donald Eldrenal JENKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
Donald Eldrenal Jenkins appeals his judgment and sentence for possession of cocaine with intent to sell or deliver. Jenkins entered a no contest plea, reserving the right to appeal based on the trial court's denial of a dispositive motion to suppress cocaine seized by the police. Jenkins contends that the trial court's denial of the motion to suppress was erroneous because: (1) the information provided to the police by a confidential informant did not give the police probable cause to arrest Jenkins and (2) Jenkins was subjected to a strip search which violated the requirements of the Fourth Amendment as well as the Florida statute governing strip searches. We conclude that the police had probable cause to search and arrest Jenkins and that the manner of the search of Jenkins' person did not violate the Fourth Amendment. We further conclude that although the search of Jenkins violated the requirements of Florida's statute governing strip searches, suppression of evidence is not a remedy for violation of the statute.
At the hearing on the motion to suppress, testimony was given by Tampa Police Department officers, as well as by Jenkins, concerning the circumstances which led to Jenkins' arrest. Officer Kellie Daniel testified that she "was working with a confidential informant" with whom she had successfully worked in the past. According to Daniel, the informant advised her that he knew a man named "D" from whom the informant had previously received "dope" and whom he could call on the phone to "order a quantity of cocaine." Using Daniel's cell phone, the informant called "D" and ordered cocaine, while Daniel was listening to the informant's "side of the conversation." The informant related to Daniel that "D" would be going to the Texaco station at the intersection of Nebraska and Osborne in about fifteen minutes and that "D" would "be driving a brown boxy 4-door Chevy." The informant provided no further information regarding the suspect other than "a vague description of a tall black male."
The Texaco station was "directly across the street" from where Daniel was located. Daniel "had full view of the Texaco." Subsequently, the informant, after seeing a 4-door brown Chevy pulling into the Texaco Station, came "running across the street" from the station, telling Daniel, "`that's him, that's him.'" When the Chevy parked in the parking lot by the Texaco Station, Daniel "ordered units to move in where the vehicle was located, at which time the vehicles moved in and detained the suspect."
Daniel also testified that the area of the Texaco Station is one "known for drugs." She explained her prior experience with the informant: "I've used him in similar page-outs where we've arrested, gotten a quantity of dope," as well as "in search warrant buys." Daniel testified that she had "used [the informant] about three or four times" in incidents similar to that involved in the instant case. With one exception, those incidents resulted in an arrest. The exception involved circumstances where the suspect "got spooked" and fled because he observed law enforcement.
According to the testimony of Officer Todd Rego, he "took [Jenkins] out of the car at gunpoint," and "placed handcuffs on him." Rego testified that he "felt we had probable cause [Jenkins] was about to commit a felony" but that he "was just detaining him."
Officer Kevin Bonollo testified that he arrived on the scene as Officer Rego was assisting Jenkins out of the car. According to Bonollo, he searched the car but did not find anything. He then searched Jenkins but "was unable to find any narcotics on his person." Bonollo was then advised by Sergeant Graham—the supervising officer — "`to see if [the cocaine] was inside [Jenkins'] clothing anywhere.'" Bonollo testified:
I opened up the defendant's boxer shorts and inside his butt crack sticking up was a sandwich bag, like a regular Ziploc type of sandwich bag and it was twisted. The dope, the crack cocaine was at the bottom. It was twisted up[,] and I could see the top of the plastic about two inches.
Bonollo testified that he then pulled out the plastic bag containing the cocaine.
Jenkins gave testimony conflicting with Officer Bonollo's testimony concerning the retrieval of the plastic bag containing the cocaine. According to Jenkins, Bonollo "ordered [him] to pull down [his] pants and bend over." Jenkins testified that when he did not comply, the officers forced him to comply by grabbing him from each side, pulling him over, and bending him down. Jenkins further testified he was "completely naked in the buttocks area" when the officers "dropped [his] pants to [his] knees. . . and pulled [his] boxers down."
At the conclusion of the hearing on the motion to suppress, the trial court concluded that "[t]here was probable cause to do a search based on what [the court] heard from the police officers." The court also found that "[t]here was no strip search, not what is typically called a strip search."
For his first point on appeal, Jenkins argues that his seizure and the search by the police were illegal because there was no probable cause for his arrest. He contends that the prior dealings of the police with the confidential informant were insufficient to establish the informant's reliability, that it was "impossible for the police to verify the CI's information in any meaningful fashion," and that "there was not enough detail from the CI to establish probable cause that the car occupant was engaging in the criminal activity of selling cocaine."
The State argues that the totality of the circumstances supported the existence of probable cause to detain and search Jenkins. Specifically, the State contends that the prior experience the police had with the informant demonstrated the informant's "accuracy and reliability," and that the "information of future behavior" given by the informant in the instant case "further confirm[ed] the confidential informant's veracity, reliability[,] and basis of knowledge."
For his second point on appeal, Jenkins argues that the trial court erred in concluding that he was not subjected to a strip search. Jenkins contends that the police violated the provisions of section 901.211, Florida Statutes (2003), regarding the performance of strip searches, as well as his constitutional right of privacy.
On this point, the State argues that in this case "the officers conducted a seizure, not a strip search." The State further argues that even if a strip search was performed, it was in compliance with the provisions of the statute and that under the totality of the circumstances the conduct of the police was reasonable and thus did not violate the Fourth Amendment.
The existence of probable cause justifying a warrantless arrest depends on whether, when the arrest was made, "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [person arrested] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Determining whether the probable-cause standard is met requires an evaluation of "the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).
The "identification of [a] suspect by a reliable informant may constitute probable cause for arrest where the information given is sufficiently accurate to lead the officers directly to the suspect." Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). When the police rely on information from a confidential informant, they must have some basis for establishing the informant's reliability, but there is no "require[ment] that informants used by the police be infallible." Illinois v. Gates, 462 U.S. 213, 246 n. 14, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
"[A]n informant's `veracity,' `reliability[,]' and `basis of knowledge' are all highly relevant in determining the value of his report." Gates, 462 U.S. at 230, 103 S.Ct. 2317. But "these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case." Id. "[A] deficiency in one [element] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233, 103 S.Ct. 2317. The "corroboration of major portions" of an informant's "predictions" is a salient indicia of reliability. Id. at 246, 103 S.Ct. 2317. A "[confidential informant's] veracity can be established by either the [informant's] prior record of reliability or the wealth of detailed, verifiable information given on the occasion in question." State v. Walker, 898 So.2d 198, 200 (Fla. 2d DCA 2005).
Here, the reliance of the police on the information provided by the informant was supported both by the informant's prior performance as a reliable source and by the corroboration of the informant's predictions concerning the behavior of the defendant. In the circumstances present here, the police had "reasonably trustworthy information" which was "sufficient to warrant a prudent man in believing that [Jenkins] had committed or was committing an offense." Beck, 379 U.S. at 91, 85 S.Ct. 223.
Contrary to Jenkins' argument, nothing in the prior experience of...
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