Login v. State

• Citation: 394 So.2d 183
• Decision Date: 17 February 1981
• Docket Number: No. 79-1551,79-1551
• Parties: David LOGIN, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 183

394 So.2d 183

David LOGIN, Appellant, v. The STATE of Florida, Appellee.

No. 79-1551.

District Court of Appeal of Florida, Third District.

Feb. 17, 1981.

Stephen K. Johnson and Jon R. Phillips, Gainesville, for appellant.

Jim Smith, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., for appellee.

Before HUBBART, C. J., and NESBITT and PEARSON, DANIEL S., JJ.

HUBBART, Chief Judge.

The central question presented for review by this appeal is whether a "seizure" of the person takes place within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution when a police officer approaches an individual, identifies himself through proper police credentials, and begins to ask questions of the individual. We hold that such conduct, without more, does not constitute a "seizure" of the person within the meaning of the above constitutional provisions. We further conclude that: (a) the plain sight observations made by the police during their pre-detention contact with the defendant in this case constituted probable cause for the defendant's subsequent arrest; and (b) the trial court properly denied the defendant's motion to suppress the evidence seized incident to the defendant's arrest. We, accordingly, affirm the judgment of conviction and sentence from which this appeal is taken.

I

The facts pertaining to the instant search and seizure are as follows. On January 11, 1978, at 5:25 p. m., Detectives William Johnson and Miguel Magdalena of the Dade County Public Safety Department were assigned to a special airport narcotics detection unit at the Miami International Airport. They were at that time monitoring passengers boarding early evening flights to California. They were in plain clothes and did not visibly display any weapons. Their attention was directed to the defendant David Login as he was standing in line at the National Airlines ticket counter. The defendant was, in the officer's opinion, acting abnormally nervous, looking around at the faces of the people near him very closely. The defendant was also carrying a hemp-woven, carry-on bag and had no other luggage. When he reached the ticket counter, the defendant took a large amount of cash from his pocket and paid for the ticket in cash. The defendant then started for concourse F where the gates to National's Los Angeles flights were located. The police detectives followed.

We now come to the crucial facts of the police encounter with the defendant. Detective Johnson walked up alongside the defendant while the latter was en route to concourse F, showed the defendant his badge and identification card, and said, "I am a narcotics officer with the sheriff's office and I would like to talk to you; do you have a minute?" The defendant stopped and relied, "Yes." At the precise moment after the defendant had come to a complete stop and police questioning began, Detective Johnson noticed two rings of white residue, one around each nostril of the defendant's nose. Based on his training and experience, Detective Johnson immediately recognized this white residue to be cocaine. In addition, he noticed the defendant's eyes were glassy, a condition consistent with use of cocaine. These factors, plus the defendant's nervousness, led Detective Johnson to believe that the defendant was under the influence of cocaine. In the meantime, Detective Magdalena joined Detective Johnson on the concourse at some point shortly after the defendant had stopped.

At this time, Detective Johnson asked to see the defendant's identification and plane ticket. The defendant responded by going through his coat pockets, which appeared to be stuffed to capacity, during which time Detective Johnson caught a fleeting glimpse of a plastic bag containing a white substance which appeared to be cocaine. The defendant stated that he did not have any identification, but did produce for police inspection a one-way plane ticket to Los Angeles in the name of "S. Welsh." During the entire time the defendant was looking for identification, his hands were shaking and he was slowly inching backwards away from the detectives.

Detective Johnson then asked the defendant to step into the police office at the airport which was located a few feet away. The defendant complied and went with the detectives to a large storage closet area set aside for police use. Once inside, Detective Johnson asked the defendant what he had inside his pockets. The defendant replied that he had nothing. Detective Johnson then formally placed the defendant under arrest for possession of cocaine. The defendant thereupon attempted to flee and had to be physically subdued by the officers. The police then searched the defendant's person and seized a large quantity of cocaine contained in plastic bags in all of the pockets of the defendant's jacket as well as the cowboy boots the defendant was wearing. The police also searched the defendant's carry-on bag and seized an additional quantity of cocaine.

The defendant was subsequently charged by information in several counts with a series of offenses, including a count for unlawful possession of cocaine with intent to sell (§ 893.13(1)(a) 1 Fla.Stat. (1979)), in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant filed a pre-trial motion to suppress the above cocaine seized from him by the police which, in fact, formed the basis of the above criminal charge against him. The trial court heard and denied the motion on the basis that the police observation of the cocaine residue on the defendant's nose took place prior to any stop of the defendant, that this observation constituted probable cause under the circumstances to arrest the defendant, and that the search herein was incident to a valid arrest of the defendant.

The defendant thereupon entered a nolo contendere plea to the charge of unlawful possession of cocaine with intent to sell, specifically reserving for appellate review the trial court's denial of the motion to suppress; the state nolle prossed the other counts in the information. The trial court accepted the defendant's nolo contendere plea as conditioned above, adjudicated the defendant guilty as charged, and sentenced the defendant to five years in the state penitentiary.

The defendant appeals, asserting as error the denial of the motion to suppress. We have jurisdiction to entertain this appeal and to consider the defendant's sole point on appeal. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971); § 924.06(1)(a), Fla.Stat. (1979).

II

The law is well-settled that a search and seizure conducted without benefit of a search warrant, as here, is presumptively unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution. See e. g. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hornblower v. State, 351 So.2d 716 (Fla.1977); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978). There are certain exceptions, however, to this general rule requiring search warrants. One of those exceptions is that the police may conduct a warrantless search and seizure incident to a valid arrest of the defendant. See e. g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 24 L.Ed.2d 685 (1969); State v. Gustafson, 258 So.2d 1 (Fla.1972), aff'd., 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). It was this exception that the trial court relied on in sustaining the reasonableness of the warrantless search in the instant case.

Crucial to invoking the above exception to sustain the instant search, in our view, is the trial court's determination below that the defendant had not been seized by the police within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution when Detective Johnson observed the cocaine residue around the defendant's nostrils. If this be correct, the residue was lawfully observed in plain view during a pre-detention encounter which, in turn, gave the police probable cause under the circumstances to arrest the defendant and conduct a search incident thereto. ¹ See e. g. State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Parnell, 221 So.2d 129, 131-133 (Fla.1969); Fletcher v. State, 65 So.2d 845 (Fla.1953). On the other hand, if the trial court was incorrect on this issue and the defendant was temporarily seized when the cocaine residue was observed, then, as the trial court itself recognized, that seizure was unreasonable as based on mere suspicion, Reid v. Georgia, --- U.S. ----, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), which, in turn, made the plain view cocaine observation unlawful and the subsequent arrest and incidental search of the defendant, based thereon, unreasonable. See e. g. Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975). Our inquiry must center, then, on whether the police officers' initial encounter with the defendant on the airport concourse amounted to a "seizure" in the constitutional sense.

A

The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution guarantee to the people the right "to be secure in their persons ... against unreasonable ... seizures" by government agents. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1979). A person has been seized within the meaning of the above constitutional provisions "whenever a police officer accosts an individual and restrains his freedom to walk away...." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1979). Not every encounter, however, between police and citizen amounts to such a seizure. Indeed, it has been recognized that police-citizen encounters are incredibly rich in diversity and that most do not...