Mahoney v. State

• Decision Date: 05 September 1974
• Docket Number: No. T--393,T--393
• Citation: 300 So.2d 743
• Parties: James M. MAHONEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 743

300 So.2d 743

James M. MAHONEY, Appellant, v. STATE of Florida, Appellee.

No. T--393.

District Court of Appeal of Florida, First District.

Sept. 5, 1974.

Rehearing Denied Oct. 11, 1974.

Norman J. Abood, Jacksonville, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Defendant in the trial court here appeals judgment of guilt and the resulting sentence entered on his plea of nolo contendere, presenting for our review two issues: First, did the trial err in denying defendant's motion to suppress evidence and secondly was the jury selection system employed in Duval County at the time of the trial herein violative of constitutional standards.

Although other errors were assigned, they were not argued in appellant's briefs and are therefore deemed abandoned. (Rule 3.7, subd. i, Florida Appellate Rules; Mitchell v. Mason, Sup.Ct.Fla.1911, 61 Fla. 692, 55 So. 387) the errors so assigned and abandoned do not raise jurisdictional nor fundamental considerations and are therefore not considered. We accordingly confine our opinion to the issues presented and argued in the briefs.

The pertinent facts commenced with Sergeant Barrow of the Jacksonville Police Department receiving a message from a fellow officer Taylor regarding a long distance phone call which had been received by Taylor from a federal agent in Dallas, Texas, stating that he had information from an informant that one Bicking was leaving Texas with a large quantity of marijuana destined for Jacksonville. The federal agent gave Taylor a description of Bicking and his automobile. Upon Taylor relaying the information to Barrow the latter issued a BOLO (be on the look out) for Bicking and his car. Two days later at approximately 1:30 in the morning Sergeant Barrow received a call from Patrolman Merritt advising that he had seen the vehicle described in the BOLO, a 1971 Pontiac license tag KENNY--2, at a Holiday Inn Motel. Sergeant Barrow went to the motel and through inquiries at the desk learned that Bicking was registered in room 265. Barrow and a fellow officer Merritt took up surveillance of the room for approximately 20 or 25 minutes at which time Barrow decided to call for assistance, asking Merritt to stay on the scene. Barrow then went to the Vice Squad office where he telephoned two other investigators (Locke and Miller). He also called an assistant state attorney seeking legal advice informed a search warrant. The assistant informed Barrow that he did not have enough probable cause to obtain a warrant but that he, Barrow, should maintain his surveillance and keep in contact. Sergeant Barrow thereupon returned to the motel at approximately 2:30 a.m., followed by Officers Locke and Miller. Locke and Miller stationed themselves in the patio area around the pool where they could observe the room from a distance of approximately 75 feet. At 3:15 a.m. another car pulled up in front of room 265 and two men got out of that car, went to the room, knocked on the door and were admitted. Approximately ten minutes later those men exited from the room, went to the car and removed a box from the trunk, taking it into the room. At that time a fourth person came to the door. The last mentioned car was then parked and all four men went into the room and shut the door. Officers Locke and Miller testified that during the time the door was open they observed, through binoculars, a bag on the bed in the room and that what appeared to be a grassy substance spilled onto the bed from the bag. Miller stated that he also observed two 'bricks' wrapped in brown paper. He further testified that from his experience he felt certain that the grassy substance was loose marijuana and that the 'bricks' were compressed kilos of marijuana. Both Barrow and Locke testified that one of the four men was generally known to them to be involved in the sale of marijuana as a 'pound dealer'. At approximately 4:45 a.m. defendant Mahoney left the motel room and walked toward a Buick automobile. He opened the trunk and placed a plastic bag in it and then stood momentarily with the trunk lid open. At approximately the same time Sergeant Barrow had decided to again call the assistant state attorney, but upon seeing Mahoney come out of the room with the plastic bag he and the other officers concluded that he (Mahoney) was about to leave and they felt that although they then had sufficient probable cause to sustain a search warrant they did not have time to secure same. Officers Locke, Miller and Barrow then drove up in an unmarked police car and called 'Police! Stop!' Mahoney slammed the trunk lid closed and headed toward the motel room, taking five or six steps and then stopped. Officer Locke observed Mahoney drop the car keys to the ground. Mahoney was then advised by the officers that they had reason to believe that he had drugs in his vehicle and that they were going to search the trunk. The keys were retrieved, the trunk opened and a plastic bag containing marijuana was found therein. Mahoney was then formally arrested. The officers inquired of Mahoney if the other occupants were armed and were advised that there was a weapon in the room. The officers then instructed Mahoney to knock on the door and request admittance. He did so and when the door was opened the officers entered the room and placed the occupants under arrest. The officers testified that marijuana was found scattered on the bed and in boxes throughout the motel room and capsule drugs were found in Bicking's shaving kit.

The trial judge denied a motion to suppress the evidence whereupon Mahoney voluntarily and freely entered a plea of nolo contendere, reserving the right to appeal the results of the suppression hearing.

Did the trial judge err in denying the defendant's motion to suppress the evidence? We think not.

Initially we should note that appellant does not question the trial judge's finding that probable cause existed.

Appellant relies heavily upon Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) contending that the warrantless search of the trunk of his vehicle and subsequent seizure was illegal and violative of his federal and state constitutional rights prohibiting unreasonable searches and seizures. We find his reliance thereon misplaced. In Coolidge the Supreme Court held that a search or seizure carried out on a suspect's Premises without a warrant is Per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent circumstances.' In the case sub judice the search in question did not involve appellant's premises. Even if it had, exigent circumstances existed which would authorize a warrantless search and seizure. (United States v. Doyle (5th Cir. 1972), 456 F.2d 1246) In the Doyle case the court upheld a search of a dwelling and a garage, stating:

'In our judgment the record amply supports the conclusion that the search was incident to a valid arrest. The officers observed the crime of illegal possession of drugs being Committed in their presence. In addition, they had been fully informed of the criminal activities of Doyle, including his possession of prohibited drugs on the very night of the seizure. The information furnished by the informant had proved to be remarkably correct and accurate after thorough checking and investigation and according to the actual observations of the officers. There was strong reason to believe that Doyle was about to make his departure during the darkness of night. Any substantial delay at this very critical time of the night under existing Exigent circumstances would have very likely resulted in the destruction of evidence and the departure of Doyle. Considering the Totality of the circumstances, we believe the search and seizure was reasonable and proper. The officers were clearly justified in searching the very place Where they knew the drugs were located--the garage. It would be wholly unreasonable to say under the facts presented in this case that the officers should have abandoned known contraband to go and seek a warrant.' (456 F.2d at page 1248; Emphasis added)

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) the officers, after arresting the defendant for robbery, removed the automobile to the police station and conducted a thorough search. Evidence was found in the glove compartment which was introduced against the defendant at trial. The defendant claimed, as does the appellant sub judice, that the search and seizure was illegal because of the absence of a warrant. The Supreme Court of the United States, on appeal from an order...