Manee v. State, 84-277

• Decision Date: 21 September 1984
• Docket Number: No. 84-277,84-277
• Citation: 457 So.2d 530
• Parties: Henry Marcy MANEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 530

457 So.2d 530

Henry Marcy MANEE, Appellant, v. STATE of Florida, Appellee.

No. 84-277.

District Court of Appeal of Florida Second District.

Sept. 21, 1984.

Rehearing Denied Oct. 24, 1984.

David J. Kurland, Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Judge.

Appellant was charged with possession of more than twenty grams of marijuana. His motion to suppress the warrantless search was denied. He then pled nolo contendere, reserving the right to appeal the denial of his motion to suppress. This appeal concerns the legality of the search.

Appellant worked for ABA Industries. The company's security officer advised the sheriff's office that appellant was dealing in narcotics in the company parking lot early in the morning and during the lunch hour. Detective Howard Reed ran a background check on appellant and learned that he had been charged with possession of marijuana in the past. Detective Reed established a surveillance of the parking lot, beginning on June 14, 1983. He watched appellant for two days and observed nothing suspicious. On both days, however, appellant left the plant in his automobile for about a half hour during his lunch period. On June 16, 1983, at about noon, Detective Reed followed appellant in his automobile to a building known as Martin Manufacturing. Approximately six minutes after appellant went inside the building, an unidentified man came out briefly and looked up and down the street in what Reed described as a "suspicious manner." About six minutes later, appellant came out of the building carrying a paper bag, immediately followed by the same unidentified man. As appellant left in his automobile, the man once again looked up and down the street before returning inside.

Detective Reed, an experienced narcotics officer, described the paper bag as being rolled down from the top onto the contents. The bag was rolled so tightly that Reed could distinguish the shape of the contents inside, that it was "something of a loose nature, because it had a round shape to it." He further explained that during his undercover work he had observed persons break up quantities of marijuana and package it for transportation using brown paper bags. Such persons "always seemed to carry" the bags in the manner of appellant. Predicated upon appellant's actions and the appearance of the bag, Detective Reed believed that the bag contained marijuana.

When appellant returned to ABA Industries, he left the bag in his automobile and went back to work. Detective Reed continued to maintain surveillance because he anticipated that a narcotics transaction was likely to ensue. However, nothing occurred. Appellant left work at 5:00 p.m., entered his car, and drove out of the parking lot. At this point, Detective Reed stopped the automobile and removed appellant from the car. Detective Reed was unable to see the bag in plain view. Without obtaining appellant's consent to search, Detective Reed entered the car and located the bag in a compartment. Upon opening the bag, he found a half pound of marijuana.

Appellant first argues that Detective Reed did not have probable cause to believe that the brown paper bag contained marijuana. We cannot accept this proposition. In P.L.R. v. State, 455 So.2d 363 (Fla. 1984), our supreme court recently upheld the seizure of a manila envelope containing marijuana at a known drug transaction site predicated upon the testimony of an experienced narcotics officer. He stated that the only use he had ever seen for this type of envelope at the location was for narcotics transactions. Here, Detective Reed, also a trained narcotics officer, was able to rely not only upon his experience with folded-down brown paper bags, but also upon appellant's suspicious activities which preceded the confrontation. Thus, Detective Reed had probable cause to seize the bag. Cf. Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981) (police officer's testimony that marijuana is usually carried in brown manila envelopes insufficient, by itself, to sustain seizure of a brown manila envelope).

Appellant's second point has more merit. He argues that even assuming that Detective Reed had probable cause to believe the bag contained marijuana, he was obligated to obtain a search warrant before opening the bag. The state justifies the warrantless search upon the doctrine of exigent circumstances surrounding automobile searches. The point is subtle, but a careful reading of recent United States Supreme Court cases on the subject leads us to conclude that the appellant's position is correct.

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the police had probable cause to believe that a suitcase containing marijuana would arrive by airplane at the Little Rock airport. The police watched as the suitcase was unloaded, placed into a taxi and driven away. The police stopped the taxi and retrieved the unlocked suitcase from the trunk. Upon opening it, they found marijuana. In quashing the warrantless search, the Court said:

The only question, therefore, is whether the police, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search. A lawful search of luggage generally may be performed only pursuant to a warrant. In Chadwick, we declined an invitation to extend the Carroll exception to all searches of luggage, noting that neither of the two policies supporting warrantless searches of automobiles applies to luggage. Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, "there was not the slightest danger that [the luggage] or its contents could have been removed before a valid search warrant could be obtained." 433 US, at 13, 53 L Ed 2d 538, 97 S Ct 2476.

442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 243-44. In rejecting the contention that the "automobile exception" eliminated the requirement of obtaining a search warrant, the Court observed that a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations.

Only three years later, however, the United States Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), upheld the warrantless search of a closed brown paper bag found in the trunk of an automobile that the police had probable cause to believe was transporting contraband. The Court ruled that if the police have probable cause to believe that a vehicle is carrying contraband, they may search it in its entirety and in the course of the search may open any containers found therein. The Court recognized that it was receding from some of the rationale of Arkansas v. Sanders but adhered to its holding in that case.

The First District Court of Appeal in Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984), had occasion...