Knox v. State, 96-1509

• Citation: 689 So.2d 1224
• Decision Date: 14 March 1997
• Docket Number: No. 96-1509,96-1509
• Parties: 22 Fla. L. Weekly D683 Eric J. KNOX, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1224

689 So.2d 1224

22 Fla. L. Weekly D683

Eric J. KNOX, Appellant, v. STATE of Florida, Appellee.

No. 96-1509.

District Court of Appeal of Florida,

Fifth District.

March 14, 1997.

James B. Gibson, Public Defender, and Dan D. Hallenberg, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

HARRIS, Judge.

Eric J. Knox was arrested for and convicted of possession of a controlled substance. He appeals contending the trial court erred in failing to suppress the evidence. We affirm.

This case is somewhat complicated by the fact that the officers, in order to enhance their claim of "probable cause," improperly searched the defendant for weapons without just cause and during the search confirmed the presence of crack cocaine. But even though we find the search for weapons improper, we nevertheless, based on the totality of circumstances and the Tipsy Coachman Rule ¹, affirm the trial court.

Officer Harrel of the DeLand Police Department testified that he had received training in identification of narcotics and had made several dozen narcotics arrests. On the day of the arrest in this case, Officer Harrel was assigned to the vicinity of the A & M Discount Beverage Store where there had been numerous complaints of narcotics dealing. Officer Harrel and another officer conducted surveillance from a vacant residence with an unobstructed view and for two hours observed Knox approach vehicles that would pull up, lean into the vehicle and pass something to the occupants of the vehicle. Then, as the vehicle would pull off, the officers would see Knox with cash in his hand. The officers had to observe that the items so exchanged for money were not kept in plain view by Knox and thus had to be concealed by him. Further, the items were too small to be seen from the officers' hiding place. Could not the officers legally conclude that the items exchanged were "probably" drugs? Officer Harrel testified that this conduct was consistent with his experience observing narcotics transactions elsewhere.

Because the officers did not actually see what was transferred to the occupants, they believed that they lacked probable cause to make an arrest, and so they went to the scene to ascertain the identity of Knox and to pat him down for weapons. Not only was the pat-down improper, but in our view it was unnecessary. We believe from the totality of the circumstances that the officers' observation of Knox's conduct during the two-hour surveillance established sufficient probable cause for an experienced narcotics officer to believe that Knox was engaged in criminal conduct that justified a search for illegal drugs.

It seems well settled that the officer's personal opinion as to whether probable cause exists is irrelevant. The Florida Supreme Court has held: "Although the defendant cites no authority for his position, he seems to assert that the State is bound by the legal conclusion as articulated by the ... [police] officer on cross-examination, and that we should infer from this testimony that the defendant was arrested on information that fell below the standard of probable cause." The court rejected this contention and found that probable cause existed and said, "Nor would the legal conclusion of the officer prevent the state from arguing and presenting evidence that probable cause did in fact exist." Routly v. State, 440 So.2d 1257, 1260-1261 (Fla.1983)...