Rogers v. State

• Decision Date: 14 August 1991
• Docket Number: Nos. 90-00622,90-00633,s. 90-00622
• Citation: 586 So.2d 1148
• Parties: 16 Fla. L. Weekly D2169 Charles Kenneth ROGERS, Appellant, v. STATE of Florida, Appellee. Shelly TAM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1148

586 So.2d 1148

16 Fla. L. Weekly D2169

Charles Kenneth ROGERS, Appellant, v. STATE of Florida, Appellee.

Shelly TAM, Appellant, v. STATE of Florida, Appellee.

Nos. 90-00622, 90-00633.

District Court of Appeal of Florida Second District.

Aug. 14, 1991.

Rehearing Denied Oct. 10, 1991.

Thomas J. Donnelly, Clearwater, for appellants.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellee.

PATTERSON, Judge.

We review the consolidated appeals of Charles Rogers and Shelly Tam who pled nolo contendere to charges of trafficking (Rogers) and possession (Tam) after the trial court denied their motions for suppression of the contraband found in Rogers' van and Tam's purse. Both appellants claim the officers who stopped Rogers' van had no founded suspicion to do so based solely on a tip received from an apparently untested informant. Tam further claims that the police had no probable cause to proceed with the search of her purse after the canine unit discovered contraband in the van itself. We conclude that the police did have a founded suspicion to stop the van; that this founded suspicion ripened into probable cause to search the van when the narcotic-sniffing dog alerted to the presence of cocaine; and that the discovery of the contraband in the van gave the officers probable cause to arrest the driver, Rogers. We find no basis for the arrest of Tam or the search of her purse. We therefore affirm as to Rogers and reverse as to Tam.

FACTS

The facts viewed in a light most favorable to the state, Young v. State, 579 So.2d 721 (Fla.1991), are as follows: On February 11, 1989, Officer Kirchgraber of the St. Petersburg Beach Police Department spoke to an individual who was at that time under arrest at the St. Petersburg Beach police station. Officer Kirchgraber had had what he described as "prior dealings" with this individual, but this was the first occasion that the individual acted as an informant to the officer. Between 8:00 and 9:00 in the evening, the informant told the officer that a man named Rogers would be coming to St. Petersburg Beach that night sometime after 10:00 in a burgundy mini-van with a black bra on the front; that Rogers would go to El Gordo's Restaurant and would have one or more ounces of cocaine in white envelopes placed in the compartments behind the front seats of the van; and that Rogers' girlfriend, Tam, would be with him. During the officer's questioning, the informant admitted that he had not specifically seen Rogers in actual possession of cocaine that evening.

Based on this information, Officer Kirchgraber did a computer check and found that a 1985 Dodge van with a certain tag number was registered to Rogers and that Rogers had two previous narcotics convictions. The officer then arranged for a canine unit to be available and set up a surveillance at the restaurant.

The surveillance of the restaurant continued from about 10:00 p.m. to sometime after 11:30 p.m. with no sighting of the suspects. Since the police shift was changing, Officer Kirchgraber decided to terminate the surveillance. When the officer returned to the police station, the informant assured him that Rogers would show up because he had a friend playing in the band at the restaurant and always came to hear the friend play. The surveillance team returned to the restaurant. Five to ten minutes later a burgundy Dodge van sporting a black bra on the front entered the parking lot of the restaurant. Its tag matched the number on the registration check indicating it belonged to Rogers. After the van pulled into a parking space the police approached, identified themselves and their purpose, and asked all the occupants to exit. Upon asking for identification, the police determined that Rogers was the driver and that Tam was the front-seat passenger. Three other people, two women and a man, were found in the seatless rear portion of the van.

The police asked if they could search the van; Rogers refused. The canine unit was called in and arrived on the scene some twenty-five to thirty minutes later. During the wait for the arrival of the dog, the police asked Tam and the other two female passengers for permission to look into their purses. Tam refused to allow the police to search her purse. The other two passengers agreed to the search and the police found no illegal narcotics in either purse. When the canine unit arrived, the dog spontaneously jumped into an open door of the van and alerted to the presence of narcotics in the seat pocket attached to the back of the front passenger seat. The police then pulled out several white envelopes containing cocaine from the pocket behind each of the front seats. The police at this time arrested Rogers. Officer Kirchgraber then asked that Tam hand her purse over to him which she did. He discovered 29.5 grams of cocaine in Tam's purse and then arrested her for possession of that quantity.

The trial court held that the police had founded suspicion to stop the van and identify the appellants. The trial court further held that the discovery of the contraband in the van gave the police probable cause to arrest the appellants.

ROGERS' APPEAL

The known informant here provided detailed and specific information, although this was apparently the first time he had provided such information for the police to act upon. "The specificity of the information furnished, by itself, is insufficient to establish probable cause until validated by the officer's observations." State v. Abiri, 539 So.2d 492 (Fla.2d DCA 1989). See also, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Flowers, 566 So.2d 50 (Fla.2d DCA 1990); Edwards v. State, 547 So.2d 183 (Fla.2d DCA 1989). Here, the police had independently corroborated most of the specific details of the informant's knowledge through their own surveillance and identification of the appellants and, significantly, developed additional important information about Rogers' criminal record through the computer check before starting the surveillance.

Although the appellants strenuously argue to the contrary, we do not find that the informant's tip had gone stale once the police gave up the surveillance after approximately an hour and a half, returning only upon the informant's assurance that further surveillance would be rewarded. See Abiri and State v. Augustyn, 490 So.2d 104 (Fla.2d DCA 1986). Rather, the careful police work here provided a well-founded suspicion to stop the van and question the occupants, as the trial court correctly concluded. Further, it was not unreasonable that the appellants were detained for approximately twenty-five minutes until the canine unit arrived at the scene. State v. Merklein, 388 So.2d 218 (Fla.2d DCA 1980); see also State v. Nugent, 504 So.2d 47 (Fla.4th DCA 1987) (thirty-minute delay does not transform valid Terry stop into de facto arrest).

This founded suspicion ripened into probable cause to search when the canine unit alerted to the presence of contraband in the van. Moreland v. State, 552 So.2d 937, 939 (Fla.2d DCA 1989), review denied, 562 So.2d 346 (Fla.1990). The officer's resulting discovery of the cocaine in the seat pockets provided probable cause to arrest the appellant Rogers. See Fedor v. State, 483 So.2d 42 (Fla.2d DCA), review denied, 492 So.2d 1331 (Fla.1986).

TAM'S APPEAL

When asked, Tam, who was standing some distance from the vehicle, refused permission to search her purse. The K-9 dog did not alert to contraband on or about Tam's person. The informant, although stating that Tam would accompany Rogers, did not implicate her in the possession of contraband. There were no facts or circumstances which would give rise to probable cause that Tam had contraband in her immediate possession.

If the search of Tam's purse is to be upheld, it must be on the basis that the police officer had probable cause to arrest Tam for actual or constructive possession of the cocaine found in the van. As there are no facts to indicate actual possession on the part of Tam, we turn to the issue of constructive possession. For Tam to be in constructive possession of the cocaine found in the seat pockets of the van, she must: (1) know of the presence of the cocaine; (2) know of the illicit nature of the drug; and (3) have or share dominion and control over it. Mere proximity to contraband, standing alone, is insufficient to establish constructive possession of the substance. Agee v. State, 522 So.2d 1044 (Fla.2d DCA 1988); see Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964); Johnson v. State, 456 So.2d 923 (Fla.3d DCA 1984). In regard to passengers of vehicles, the following cases are representative of circumstances insufficient to establish constructive possession on the part of the passenger: Lewis v. State, 570 So.2d 346 (Fla.2d DCA 1990) (owner of car was passenger and cocaine not in plain view); McClain v. State, 559 So.2d 425 (Fla.4th DCA 1990) (passenger sitting in seat under which cocaine was concealed); King v. State, 556 So.2d 490 (Fla.1st DCA 1990) (passenger in car where cocaine locked in trunk); Soler v. State, 547 So.2d 251 (Fla.4th DCA 1989) (cocaine concealed on floor behind seat of passenger); Pena v. State, 465 So.2d 1386 (Fla.2d DCA 1985) (cocaine wrapped in newspaper in vehicle).

In like manner, mere proximity to contraband is insufficient to create probable cause of constructive possession. Edwards v. State, 532 So.2d 1311 (Fla.1st DCA 1988), review denied, 542 So.2d 990 (Fla.1989). Neither does reasonable cause for the searching of an automobile justify the search of the person of one of the occupants. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). In this case, there is no evidence, direct or circumstantial (see Lewis, 570 So.2d at 348), to create probable cause for any one of the three elements of constructive...