Niemann v. State
| Decision Date | 08 May 2002 |
| Docket Number | No. 4D01-483.,4D01-483. |
| Citation | 819 So.2d 166 |
| Parties | Janice NIEMANN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Karen Finkle and Christine D. Coughlin, Assistant Attorneys General, West Palm Beach, for appellee.
Appellant, while driving her van, was stopped by an officer who had been told by an informant that appellant would be transporting a substantial amount of marijuana from Florida to Virginia on a specific day. The officer's search turned up fifty pounds of marijuana. Appellant moved to suppress on the ground that there was no probable cause for the warrantless search, her motion was denied, and she appeals.
In his order denying the motion to suppress, which we adopt, Judge Schack explained:
FACTS
On June 17, 1999 Detective Michael Sheelar of the St. Lucie County Sheriff's Office was called by "a cooperating source." The source was not an anonymous tipster. Detective Sheelar knew the source from prior dealings. That source had previously provided the detective with information concerning criminal conduct on 4 or 5 occasions. Each time the information was proven to be accurate and true. Lt. Smith of the sheriff's office was also aware of, and knew the good reputation of, the source. On this particular occasion the source advised Detective Sheelar that a maroon Toyota minivan with a Virginia tag would be driving from a housing development off Central Boulevard in Jupiter, Florida, and would head north on I-95 carrying a large amount of cannabis. The van would be driven by the Defendant, who the source knew by name, or her boyfriend. The source provided the Virginia tag number. Originally the source advised the trip would occur on June 18, 1999, then on June 18, 1999 the source advised the detective that the trip would occur on June 19, 1999.
* * *
On June 18, 1999, Detective Sheelar drove to the housing development at issue in Jupiter and observed the maroon van described by the source. The Virginia tag number matched that provided by the source. On the morning of June 19, 1999, the detective went to the same housing development and observed the same van on Central Boulevard in Jupiter. The Defendant was driving. She drove north on I-95. Detective Sheelar followed the van into St. Lucie County. Deputy Sheriff Robert McNamara clocked the Defendant traveling at 80 mph in a 70 mph zone, by using his speedometer that had been properly calibrated 5 months earlier. The Defendant was stopped for speeding by Deputy McNamara.
The Defendant was asked for her driver's license and registration. Approximately 4 or 5 minutes after the stop, while Deputy McNamara was conducting a driver's license and registration check, Detectives Graff and Atkinson arrived with Detective Graff's drug-sniffing dog Jake. While Deputy McNamara was filling out a warning for speeding, and awaiting the results of the driver's license and registration check, Detective Graff took his dog out of his vehicle and walked the dog around the Defendant's van. The dog reacted at the front door of the van, but it was not an action typical of a drug alert. The Defendant was asked for consent to place Jake in the van and was asked to remove her own dog from the van. After allegedly consenting and removing her dog, Jake was placed in the Defendant's van and alerted on a cooler in the back. The cooler was opened and 51 pounds of cannabis were found inside.
A driver's license and registration check for an out-of-state license and registration takes more time than the same check on in-state documents. The total time from the stop of the van to the arrest of the Defendant was less than 15 minutes. The time lag between the conclusion of the evidentiary hearing in this case and the entry of this order was due to this court's attempt to resolve conflicting evidence on the issue of consent. This court has weighed and re-weighed the evidence on that subject countless times. This court is unable to resolve the conflict in the evidence on that subject.
The issue on this case is whether under the totality of the circumstances there was probable cause to stop and search the Defendant's van.
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