Mancini v. State, AT-58

• Citation: 448 So.2d 573
• Decision Date: 11 April 1984
• Docket Number: No. AT-58,AT-58
• Parties: Pierluigi MANCINI, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 573

448 So.2d 573

Pierluigi MANCINI, Appellant, v. STATE of Florida, Appellee.

No. AT-58.

District Court of Appeal of Florida First District.

April 11, 1984.

E.C. Deeno Kitchen, Lewis M. Killian, Jr., and Mary L. Sweet of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.

NIMMONS, Judge.

Defendant pled nolo contendere to the offense of possession with intent to sell cocaine ¹ reserving the right to appeal from the trial court's order denying the defendant's motion to suppress. ² We reverse.

On October 7, 1982, Sergeant Fussell of the Leon County Sheriff's Office obtained a warrant to search the defendant's apartment. The application for search warrant was based upon information from a confidential informant who advised Fussell that the defendant was dealing in cocaine at his apartment. Fussell surveilled a controlled buy made by the informant within ten days prior to October 7.

The warrant was not executed immediately after it was issued. Instead, during the week following issuance of the warrant, Sergeant Fussell conversed with the informant on several occasions. The gist of the additional information obtained from the informant was that the supply of cocaine remaining in the defendant's apartment was running low and that the defendant had a "personal amount" of cocaine left at the apartment. ³ The informant also advised Sergeant Fussell that the defendant would be receiving more cocaine later in the week.

At 2:30 p.m. on October 16, the informant notified Fussell that the defendant, within an hour, would be picking up a package of cocaine from the Federal Express Office. ⁴ The officers set up a surveillance of the defendant who was observed proceeding to the Federal Express Office in his automobile. Shortly thereafter, he was seen exiting the office with a Federal Express package, entering his automobile and driving away. The officers, who had assumed that the defendant would proceed to his apartment, intended to seize the package upon execution of the apartment search warrant. However, after following the defendant around town for a while, Sergeant Fussell stopped the defendant's automobile. He advised the defendant that he was under investigation for trafficking in cocaine and then proceeded to search the automobile. After removing the Federal Express package, the officers opened it discovering a substance which later proved to be cocaine. The defendant, who was then arrested, made the statement that the cocaine was his and that the female companion accompanying him in his automobile did not have anything to do with it. He was then taken to his apartment where the officers executed the search warrant. There, they discovered only "traces" of cocaine.

The defendant was transported to the police station where he waived his constitutional rights and made a statement "admitting the possession of cocaine." ⁵

The defendant's motion to suppress sought suppression of the cocaine seized from the Federal Express package, the traces of cocaine seized from the defendant's apartment, and statements made by the defendant after his arrest.

With respect to the cocaine found in the Federal Express package, the state urges that United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), is supportive of the trial court's denial of the defendant's motion. The state's reliance on Ross, however, is misplaced. Although the officers clearly had probable cause to believe that the defendant was in the process of transporting cocaine in his automobile at the time the officers stopped him, it is equally clear that the probable cause was limited to the Federal Express package as contrasted with the automobile generally. Under these circumstances, the Supreme Court has interpreted the Fourth Amendment as requiring the officers to obtain a search warrant authorizing the opening and searching of the container. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Ross the court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere therein may conduct a warrantless search of the vehicle and may open any containers which may contain the contraband. Significantly, however, the court was careful to point out the distinction between the situation where, as in Ross, the probable cause information was that the contraband was somewhere within the automobile and the situation, as in Sanders, where the probable cause was limited to a container within the automobile. ⁶ In discussing its previous opinion in Sanders, the court in Ross stated:

The Arkansas Supreme Court ruled that the warrantless search of the suitcase was impermissible under the Fourth Amendment, and this Court affirmed. As in Chadwick, the mere fact that the suitcase had been placed in the trunk of the vehicle did not render the automobile exception of Caroll [v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ] applicable; ...

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As The Chief Justice noted in his opinion [in Sanders ] concurring in the judgment:

"Because the police officers had probable cause to believe that respondent's green suitcase contained marijuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 US 1, 53 L Ed 2d 538, 97 S Ct 2476 (1977)....

"... Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent's arrest does not turn this into an 'automobile' exception case. The Court need say no more." 442 US, at 766-767, 61 L Ed 2d 235, 99 S Ct 2586 [at 2594].

456 U.S. at 812, 813, 102 S.Ct. at 2166. ⁷

Nor has the Supreme Court left any room for a material distinction being made between the kind of container involved in the case at bar and those which were "protected" under the court's rulings in Chadwick and Sanders. Id. at 814, n. 19, 102 S.Ct. at 2167, n. 19. Presumably, that is why the state has not urged upon us any such purported distinction.

Under the above authorities, the defendant was entitled to an order granting his motion to suppress directed to the contraband found in the Federal Express package and the defendant's statements made subsequent thereto.

We need not address the issue regarding the legality of the later search of the defendant's apartment where "traces" of cocaine were found. This is so because the controlled substance charged in this case was limited to the substance found in the Federal Express package. The record of proceedings initially filed with this Court was unclear as to whether the crime was possession with intent to sell the 31 grams of cocaine found in the Federal Express package or the traces of cocaine found in his apartment, or both. There was no statement of particulars identifying the substance to which the charge and plea were addressed. ⁸ Nor did the record contain any transcript of proceedings at the entry of the nolo plea which would, presumably, have included the factual basis supporting the plea pursuant to the requirements of Fla.R.Cr.P. 3.172(a). However, pursuant to our order, the appellant has supplemented the record by filing the transcript of the trial court proceedings which were held upon the entry...