Raleigh v. State, 77-734
| Decision Date | 27 December 1978 |
| Docket Number | No. 77-734,77-734 |
| Citation | 365 So.2d 1048 |
| Parties | Kenneth Allen RALEIGH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
L. Van Stillman of Bass, Stillman & Goldenberg, Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a conviction of possession of more than 100 pounds of marijuana. The question is whether the court erred in refusing to suppress certain of the evidence.
At 1:00 A.M. the police officer was told by another officer the appellant was driving in a manner to make him a suspect intoxicated driver. The police officer stopped appellant and was of the opinion he was intoxicated but smelled no odors usually associated with alcoholic beverages. The officer noticed two other persons in appellant's car and, after questioning appellant outside his car for a while, walked over to the car and asked the others to get out. After the others exited, the officer leaned into the car and detected an odor of burning marijuana. He arrested appellant for driving under the influence of a narcotic and began a search of the car which turned up burnt residue in the ash tray with a marijuana odor. He questioned appellant about the marijuana and asked for consent to search the trunk of the car. Appellant did not reply. The officer had found a key which appeared to be a Ford trunk key underneath a rubber mat on the driver's side of the car. He opened the trunk to the appellant's Ford and found a load of marijuana.
To justify this search it must be either a search pursuant to a warrant, a consent search, a search incident to a lawful arrest, a probable cause without warrant search or an inventory. There was no warrant and there was no consent. Mere acquiescence to apparent authority is not necessarily consent. Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978). Additionally, the officer testified he asked for permission to search the trunk and was not given consent. This is, of course, reasonable to believe since the trunk contained in excess of one hundred pounds of marijuana.
For us to analyze are the initial stop and detention; the officer's intrusion into the appellant's car by leaning into it and "sniff-searching;" the search and seizure of items from the interior of the car; and, finally the search and seizure in the trunk.
The officer properly stopped the appellant in his car and detained him to determine if the errant driving was a risk on the highway. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); Bailey v. State, 319 So.2d 22 (Fla.1975).
The intrusion into the car in order to sniff around or otherwise search was a warrantless and unwarranted...
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State v. Fuksman
...(Fla. 3d DCA 1980), review denied, 408 So.2d 1095 (Fla.1981); Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980); Raleigh v. State, 365 So.2d 1048 (Fla. 4th DCA 1978) (finding no consent) with Martin; Bannister v. State, 434 So.2d 6 (Fla. 1st DCA 1983); State v. Price, 363 So.2d 1102 (Fl......
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...DCA 1979) (no consent when defendant allowed officers to look in camper but apparently denied access to containers); Raleigh v. State, 365 So.2d 1048 (Fla. 4th DCA 1978) (no consent where occupants acquiesced to warrantless search of vehicle's trunk where officer opened trunk himself withou......
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...116 Ariz. 129, 568 P.2d 1027.) Stated another way, mere acquiescence to apparent authority is not necessarily consent. (Raleigh v. State, Fla.App., 365 So.2d 1048.) The officer engaged in impermissible conduct when he "asked" defendant to put the tire tool in the trunk, because possession o......
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State v. Pinder
...submission to a search does not constitute consent. State v. Laro, supra 106 N.H. at 503, 213 A.2d at 912; Raleigh v. State, 365 So.2d 1048, 1049 (Fla.Dist.Ct.App.1978). In establishing what area a defendant has authorized to be searched, we must look to the authorization itself. For exampl......