Robinson v. State, 88-2963

• Decision Date: 26 January 1990
• Docket Number: No. 88-2963,88-2963
• Citation: 556 So.2d 450
• Parties: 15 Fla. L. Weekly D269 Frank ROBINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 450

556 So.2d 450

15 Fla. L. Weekly D269

Frank ROBINSON, Appellant, v. STATE of Florida, Appellee.

No. 88-2963.

District Court of Appeal of Florida,

First District.

Jan. 26, 1990.

Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Cynthia Shaw, Asst. Atty. Gen., Tallahassee, for appellee.

MINER, Judge.

This is a timely appeal from a conviction and sentence following the trial court's denial of defendant/appellant's motion to suppress. Defendant argues here as he did below (1) that the police were without probable cause to arrest him on a narcotics charge so that a search of his person could be justified as incident to the arrest and (2) that the search of his person was not incident to his arrest for trespassing. He thus concludes that it was error for the trial court to deny his motion to suppress. We find merit in his argument and reverse.

On February 12, 1988, a two-count information was filed charging Robinson with a third degree felony for possession of crack cocaine, and misdemeanor possession of drug paraphernalia. ¹ On September 2 1988, he filed a motion to suppress the crack cocaine that was seized in an allegedly illegal search of his person. At a hearing on Robinson's suppression motion, Officer Deborah McDaris of the Tallahassee Police Department testified that she received a radio dispatch at 1:50 on the afternoon of January 30, 1988. She stated:

The tip that we got, we were dispatched by regular radio dispatch. They stated that the complainant had said that a black male, approximately 40 years of age, wearing a brown jacket and green army pants, was selling crack cocaine near the chapel in the 400 block of West Georgia Street.

The chapel was a vacant building that was posted no trespassing. There had been a problem with narcotics use and sales in the area.

Officer McDaris testified that she arrived at the scene within five minutes of the radio dispatch. Upon arrival, she observed a group of people hanging around a wall near the chapel; one person in the group fit the description "very accurately". Appellant began walking away as Officer McDaris approached, but stopped when Officer Moody approached from the other direction. Officer McDaris made first contact with Robinson and ascertained that he was 44 years old; this matched the informant's description. Although trespassing was the only criminal activity observed, the police proceeded to conduct a search of the appellant. When Officer McDaris was asked why she didn't request appellant's consent to search, she responded:

I didn't feel that I needed to. I had received such an accurate description. The area was known for narcotics sales. There's no reason for anyone to have been there. I have spent hours on surveillance of that area. No person would have been there that, you know, was just--I can't think of any reason for someone to be there at all.

Appellant was arrested after the search produced a small rock of crack cocaine and a single-edged razor blade, which Officer McDaris testified is normally used to cut rocks of crack cocaine.

On cross examination, Officer McDaris stated that she did not approach any other person in the group for trespassing and further that she had no reason to believe that Robinson was armed.

Officer John Moody testified that he received the radio dispatch and arrived at the scene within five minutes. He had made numerous arrests for crack sales in the same location. He stated that he approached appellant, informed him of the complaint and told him that there was probable cause to conduct a search. When the search produced one small rock of crack cocaine, appellant was arrested for possession of cocaine. When asked why no arrest was made for trespassing, Officer Moody explained:

Our procedure on arresting for trespassing on businesses when they're not open is if the people that own it or manage it have a letter on file at the police department, they will write a letter requesting that anybody not authorized to be there be arrested. We will first give warnings and then arrest them. Although it was posted, we did not at that time have a letter on file from Inspired Ministries.

Following argument of counsel, the trial court denied the motion to suppress, after which a plea of no contest was entered. ² On November 15 appellant was sentenced to 75 days in jail and 30 months on probation. This appeal then ensued.

Appellant first points out that both Officer McDaris and Officer Moody admitted that they relied solely on the information contained in the radio dispatch for finding probable cause. He argues that the tip upon which the dispatch was based was from an unknown source and that the only details offered related to his clothing and location. In short, he maintains that the officers observed nothing to corroborate the incriminating portion of the tip. Under these facts, appellant argues, the police did not have probable cause to make an arrest nor did they possess even a reasonable suspicion necessary to justify an investigatory stop.

The state responds that the officers had probable cause to arrest the appellant on a narcotics violation because the anonymous tip contained a detailed description of the individual who was selling drugs. When they arrived on the scene they observed a person matching that description and arrested him. The state asserts further that since Officers McDaris and Moody had probable cause to make an arrest for trespassing, the search of Robinson's person was valid pursuant to that probable cause. Citing to Gasset v. State, 490 So.2d 97 (Fla. 3d DCA 1986), the state maintains that the fact that no arrest was made for trespassing is inconsequential because the propriety of an arrest does not turn on the charges upon which the arrest was effected.

Examining first appellant's contention that no probable cause existed to arrest him on a narcotics charge, we observe that the probable cause standard for a law enforcement officer to make a legal arrest is whether the officer has reasonable grounds to believe the person has committed a felony. We note also that the standard of conclusiveness and probability is less than that required to support a conviction. Blanco v. State, 452 So.2d 520, 523 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). In City of Jacksonville v. Alexander, 487 So.2d 1144, 1146 (Fla. 1st DCA 1986), this court articulated the probable cause standard as follows:

Probable cause exists where the facts and circumstances, as analyzed from the officer's knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed.

We...