Newberry v. State

• Decision Date: 15 September 1982
• Docket Number: No. 80-731,80-731
• Citation: 421 So.2d 546
• Parties: Wayne Kittredge NEWBERRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 546

421 So.2d 546

Wayne Kittredge NEWBERRY, Appellant, v. STATE of Florida, Appellee.

No. 80-731.

District Court of Appeal of Florida Fourth District.

Sept. 15, 1982.

Rehearing Denied Dec. 8, 1982.

Charles H. Vaughan, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, BARRY J., Associate Judge.

The defendant appeals from an order denying a motion to suppress evidence arising out of a search and seizure. Appellant contends that the search was based upon an allegedly faulty and constitutionally defective affidavit, and that the court allowed evidence to be admitted which was obtained as a result of an allegedly illegal entry in violation of appellant's rights under the fourth amendment of the U.S. Constitution. The appellant further contends that the trial court erred in not abiding by the terms of a plea conference agreement regarding the sentence to be imposed, and by not sentencing defendant under the youthful offender statute in effect at the time.

The evidence shows that the investigating officer believed that the residence in question had been used for narcotics smuggling on a previous occasion. The officer, relying on information furnished by a confidential informant, commenced a visual surveillance, in daylight, of the rear of appellant's residence from a location across a canal. The defendant's vessel had been under observation during the day proceeding along the intracoastal waterway. The surveillance then continued into the nighttime hours with no unusual occurrences until, at approximately 1:00 a.m., the lights of the residence were extinguished. At that time the officer commenced viewing the yard of the premises through a nightscope from a point some 300 feet from the rear yard in question.

A nightscope is used in the manner of a telescope, or binoculars, and enables the observer to penetrate the darkness, viewing the area and the subjects in a green lumination. Using this scope the officer observed individuals proceeding back and forth between the residence and the vessel carrying bales that appeared to be wrapped in burlap, which the officer believed contained marijuana, being off loaded from the boat to the premises. The officer further was able to determine that the defendants in question were wearing dark clothing and that no lights were being used.

The officer then proceeded directly, in spite of the early morning hours, to secure a search warrant for the premises. The officer did not advise the judge that the information contained in the affidavit was obtained through the use of a nightscope.

At the hearing there was disputed testimony as to the method by which the search was implemented. The State's witnesses testified that the entry was pursuant to the knock and announce procedures provided for in Section 933.09 of the Florida Statutes. The court found that the search warrant had been properly executed.

Following the court's ruling on the motion to suppress, a change in plea was entered and accepted, preserving the right to appeal on the foregoing issues, based upon a "plea bargain". The appellant changed his plea upon the understanding that following a pre-sentence investigation he would be sentenced to a "cap" of five years. It is the contention of appellant that the plea colloquy reflects no indication that he would be subjected to any combination of imprisonment and probation in excess of the five year cap. In fact, the court imposed a sentence, following pre-sentence investigation, of five years in the state penitentiary followed by five years of probation. Further, at the time of sentencing the appellant was nineteen years old and had no prior record of arrest or conviction. Although the appellant did qualify for treatment as a youthful offender, the lower court was of the opinion that youthful offender sentencing was not mandatory under the statute applicable prior to its amendment, and sentenced the appellant as an adult.

With respect to this sentencing, the trial judge, having accepted a plea bargain, may not subsequently substantially alter that agreement. Johnson v. State, 332 So.2d 362 (Fla. 1st DCA 1976); Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Severino v. State, 286 So.2d 234 (Fla. 2d DCA 1973). Therefore, with respect to the issue of the length of the sentence, we hereby reverse and remand with directions to the trial court to either modify and amend the sentence or, in the alternative, to grant the defendant the option of withdrawing the change in plea and reinstituting the plea of not guilty. See Davis v. State, 308 So.2d 27 (Fla.1975) and Carmo v. State, 378 So.2d 850 (Fla. 4th DCA 1979).

The record further reflects that the appellant qualifies under the mandatory language of section 958.04(2), Florida Statutes (1979) as a youthful offender under the wording of the statute prior to its amendment. By the use of the word "shall" the legislature made the application of the statute mandatory, in cases prior to its amendment and, therefore, we direct the trial court, upon resentencing in this cause, to apply the Youthful Offender Act. See State v. Goodson, 403 So.2d 1337 (Fla.1981); Warren v. State, 391 So.2d 775 (Fla. 4th DCA 1980).

The trial court found that the police, in the execution of the search warrant, complied with section 933.09, Florida Statutes. This finding of fact was supported by testimony and evidence that the police officers knocked loudly on the door, announced their identity and purpose, knocked once again and announced again before breaking a window. The officer testified that he did not put his gun inside the window, but that when someone yelled from inside that they were coming to the door the officers waited until the door was opened, at which time they entered. Although there was testimony by the defendant to contradict the state's witnesses, the trial judge after hearing all of the testimony announced his findings which are supported by the record and are, therefore, affirmed. Brown v. State, 380 So.2d 570 (Fla. 4th DCA 1980); State v. Dominguez, 367 So.2d 651 (Fla. 2d DCA 1979); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946).

Finally, with respect to the search and seizure issue, appellant challenges the validity of the search warrant. Appellant contends that the facts in the affidavit were disclosed during an unlawful search by the use of a nightscope, without a warrant having first been obtained for its use, invading the rear yard area in which the defendants claim an expectation of privacy. Appellant further contends that the viewing was from private property upon which the appellant presumes the officer was trespassing in the absence of evidence that the owner of the property granted permission for its use as a surveillance point.

We hold that the trial court did not err in denying the motion to suppress. The use of the nightscope as an aid in the surveillance by the law enforcement officer, under the facts of this case, did not constitute an impermissible invasion of defendant's reasonable expectation of privacy, did not constitute an unlawful search and did not violate defendant's fourth amendment rights.

We find that the use of a nightscope, under the conditions set forth in the above statement of facts, does not constitute a "search" within the intent of those cases that require a warrant before a search using electronic or other artificial devices may be constitutionally permissible. See Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978) and Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA 1977). See also Marshall v. United States, 422 F.2d 185 (5th Cir.1970) and State v. Daniel, 319 So.2d 582 (Fla. 4th DCA 1975).

It is unreasonable to expect law enforcement officials not to take advantage of modern technology, and tools that are in common usage, in the ordinary course of the performance of their duties. Observations made by police with the use of binoculars, flashlights, and similar aids have been recognized as constitutionally permissible without a warrant. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed.2d 1202 (1927); United States v. Minton, 488 F.2d 37 (4th Cir.1973); United States v. Loundmannz, 472 F.2d 1376 (D.C.Cir.1972); United States v. Grimes, 426 F.2d 706 (5th Cir.1970); Marshall v. United States, 422 F.2d 185 (5th Cir.1970); Fullbright v. United States, 392 F.2d 432 (10th Cir.1968); Albo v. State, 379 So.2d 648 (Fla.1980); McDougall v. State, 316 So.2d 624 (Fla. 4th DCA 1975). See also, State v. Elbertson, 340 So.2d 1250 (Fla. 3d DCA 1976); and Gianetta v. State, 296 So.2d 654 (Fla. 2d DCA 1974).

The defendant relies on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and United States v. Kim, 415 F.Supp. 1252 (D.C.Hawaii 1976). However, these cases are clearly factually distingishable. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," Katz v. United States, supra.

We hold that where a defendant conducts himself in the manner described above, in an area where the defendant does not have a reasonable expectation of privacy, the mere fact that night falls, and the defendant performs his illegal activities under cover of darkness, does not grant a shield to the defendant. There is no license to engage in criminal activity with impunity after sunset in an open area that would not be so protected after sunrise. Nor does a defendant engaged in criminal activities have carte blanche to operate under the umbrella of darkness merely because the observations of a crime, otherwise open to view, were made with the aid of the particular scope device used here rather than some other visual aid, such as a flashlight or floodlight. Persons conducting criminal activities in the open at night assume the risk that they may be so observed, whether by police or others.

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