Kayes v. State

• Decision Date: 30 December 1981
• Docket Number: Nos. 80-1257,80-1753,s. 80-1257
• Citation: 409 So.2d 1075
• Parties: Bernard KAYES and Jerry Palmer, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1075

409 So.2d 1075

Bernard KAYES and Jerry Palmer, Appellants, v. STATE of Florida, Appellee.

Nos. 80-1257, 80-1753.

District Court of Appeal of Florida, Second District.

Dec. 30, 1981.

Rehearing Denied Feb. 8, 1982.

H. Dohn Williams, Jr., of Varon & Stahl, Hollywood, for appellant kayes.

Robert P. Foley of Foley & Colton, West Palm Beach, for appellant Palmer.

Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Chief Judge.

Appellants Bernard Kayes and Jerry Palmer each entered a plea of nolo contendere to trafficking in cannabis, each reserving his right to appeal the denial of a motion to suppress the cannabis. The trial judge sentenced Kayes to ten years in prison and a $15,000 fine and costs, and Palmer to three years in prison followed by five years probation. On appeal appellants contend the court erred in denying their motions to suppress the cannabis. They argue that the seizure by the police was based on information obtained by officers when they illegally stopped their vehicle. We agree that there was no well-founded suspicion for the police to stop the vehicle. However, while Palmer, who rented and drove the car, has standing to challenge the search, Kayes, a mere passenger, does not.

The only testimony offered at the suppression hearing was that of Ralph F. Cunningham, chief investigator for the state attorney's office. Cunningham, who had a wealth of experience in narcotics investigation, outlined the profile of a typical drug smuggling operation in Florida. Drug smugglers use medium-sized boats to meet freighters carrying marijuana. These boats are met in turn by swift racing boats which transport the marijuana to shore where it is off-loaded into large capacity vehicles and stored in warehouses. From the warehouses, marijuana is transported by vehicles to various dealers.

Cunningham then related the observations which caused him to suspect appellants were transporting marijuana. The dockmaster for the Keewadin Dock reported that he observed boats and vehicles capable of transporting large quantities of marijuana at his dock. In addition, he noticed that the people manning these vessels spent large sums of money. A Collier County deputy sheriff reported that some vehicles and vessels similar to those used in smuggling operations had been seen at the Rainbow Stained Glass warehouse which was located some nine miles from the Keewadin Dock. At least one boat which had been seen at the warehouse was observed some two weeks later at the Keewadin Dock. However, no vehicle or vessel was actually seen traveling from the dock to the warehouse. The police checked the license numbers of some twenty to thirty boats and vehicles in that area of the county and found that two years earlier United States Customs officials had seized, but later returned, one boat. Cunningham concluded that the described activities met what he considered to be a typical drug smuggling operation profile, so he had the warehouse and two residences placed under surveillance.

On March 16, 1980, the police conducting the surveillance observed a step-van parked inside the warehouse. At approximately 4:00 p. m. that same afternoon, a blue and white Ford LTD driven by Palmer entered the warehouse. The officers became suspicious when they saw Kayes and Palmer leave the warehouse and observed that their Ford was weighted down with its chassis close to the ground. Cunningham followed appellants in an unmarked police car to a restaurant. While appellants were eating, Cunningham attempted to detect an odor of marijuana around the vehicle, but was unable to do so. Cunningham stated the appellants appeared nervous while they were eating. When appellants left the restaurant, he notified a deputy to stop their vehicle through the use of a ruse. The deputy stopped the vehicle before it got to the county line. Palmer, who had rented the vehicle, was driving; Kayes was a passenger. ¹ The deputy told appellants that they were suspects in a burglary of the warehouse. They denied the accusation and refused to give the police permission to search the trunk of their car. Cunningham arrived on the scene, smelled through the keyhole of the car and detected a faint odor of marijuana. As a result, the police seized the car and obtained a warrant to search it. When the search revealed marijuana in the trunk, they obtained another search warrant for the warehouse and seized additional marijuana there.

For an officer to make a valid investigatory stop of an automobile, it is not essential that the officer have probable cause to believe that the occupants have committed, or are committing, a crime. However, it is required that the officer have a founded or reasonable suspicion of criminal activity which merits further investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977); § 901.151, Fla.Stat. (1979). Thus, the legality of the stop is dependent upon the facts within the officer's knowledge. Taylor v. State, 384 So.2d 1310 (Fla. 2d DCA 1980). Here, the evidence before the court fell short of demonstrating that the officer...