State v. Arroyo

• Citation: 422 So.2d 50
• Decision Date: 26 October 1982
• Docket Number: No. 81-1204,81-1204
• Parties: The STATE of Florida, Appellant, v. Augustine Lasaro ARROYO, Morgan Randolph Tynes, and Marcos Alfredo Arce, Appellees.
• Court: Court of Appeal of Florida (US)

Page 50

422 So.2d 50

The STATE of Florida, Appellant, v. Augustine Lasaro ARROYO, Morgan Randolph Tynes, and Marcos Alfredo Arce, Appellees.

No. 81-1204.

District Court of Appeal of Florida Third District.

Oct. 26, 1982.

Rehearing Denied Dec. 8, 1982.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.

Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck and Frederick S. Robbins, Miami, for appellees.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The State appeals from an order granting the defendants' motion to suppress. The issue before us is the admissibility vel non of an experiment conducted by the defense to impeach the testimony of police officers that two automobiles, each containing an approximate 300-pound load of marijuana in its trunk, appeared to be weighted down. We hold that the evidence of the experiment was inadmissible and reverse and remand for further proceedings.

Ordinarily, where a trial judge, sitting, as here, as the fact-finder, erroneously admits evidence, he is presumed to have disregarded the improperly admitted evidence, and the error of its admission is deemed harmless. Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977); Capitoli v. State, 175 So.2d 210 (Fla. 2d DCA 1965); United States v. Dillon, 436 F.2d 1093 (5th Cir.1971); United States v. Menk, 406 F.2d 124 (7th Cir.1969); United States v. Krol, 374 F.2d 776 (7th Cir.1967); United States v. Mitchell, 297 F.2d 407 (2d Cir.1962); Teate v. United States, 297 F.2d 120, 121 (5th Cir.1961). Where, however, the record discloses that the trial judge relied upon the erroneous evidence, this presumption is overcome. United States v. Vaughan, 443 F.2d 92 (2d Cir.1970); United States v. Turnipseed, 272 F.2d 106 (7th Cir.1959). See also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (possibility that trial judge erroneously considered co-defendant's statement requires reversal).

In the present case it is abundantly clear that the defense experiment played a significant part in the trial judge's ruling that the police were without any well-founded suspicion to stop the two vehicles driven by the defendants Arce and Tynes. During the argument on the defendants' motion to suppress, the court commented:

"One aspect of this case that bothers me ... and that is, it seems like, as I recall they stipulated to almost all of the facts, and the key would be driving into the warehouse, and then the car [sic] coming out.

"Now, I saw the demonstration, and the testimony was about three hundred and something pounds in each car, and that didn't do much to the trunk. Then he had two fellows get in and they added another about 350 or 400 pounds, and the car [sic] didn't drag. You know they make cars pretty good. They weren't dragging the ground."

In his written order granting the motion to suppress, the trial judge stated:

"In their 'Organized Crime Bureau Report' and sworn depositions, the officers who surveilled the warehouse testified that both vehicles were 'heavily weighted in the rear.' (Report at p. 4). Lead Detective D'Azevedo, in fact, testified 'as they got outside the warehouse is the first time that I really felt confident and assured that they had the narcotics because I could see the back of the vehicles weighed very, very heavily and almost dragging the ground. Prior to that time I didn't feel I had probable cause.' (D'Azevedo deposition p. 31). This court has had the opportunity, pursuant to the Defendants' demonstration, to observe the effects of weights equal to the weight of the marijuana in this case placed in the trunks of vehicles identical to those involved in this case. The demonstration showed, in fact, that the effects of 325 pounds in the trunks of these vehicles has a neglible [sic] effect on their appearance and that as much as 625 pounds does not cause the rear of either vehicle to even approach 'dragging the ground.' "

While it is possible that the trial judge's disbelief of the officers' testimony that the vehicles seen by them "weighed very, very heavily" was not the sine qua non of his decision, his reliance on the experiment to impeach the officers' testimony is inseparable from his various conclusions that there was no well-founded suspicion to justify the stops; that the stops were unjustified by any knowledge or information that the defendants were involved in any violation of Florida law; and that there was an absence of probable cause.

We turn now to the experiment. The automobiles which were stopped by the police were described as a rented 1979 Thunderbird and a rented 1980 Chevrolet Monte Carlo. The police officers observed these cars moving down a warehouse ramp. For all that appears in this record, the experiment admitted by the trial court was similar to the event to which it was being compared in only a single respect--a rented 1979 Thunderbird and a rented Chevrolet Monte Carlo of unknown year were used. As the State pointed out in objecting to the admission of the experiment and in urging error here, there was no showing, inter alia, that (1) the condition or type of the suspension system, shock absorbers or springs on the cars observed and the cars used in the demonstration was substantially similar; (2) the appearance of a vehicle with weight in its trunk is the same whether that vehicle is stationary or proceeding down a ramp; and (3) the distribution of weight in the trunks was substantially similar. ¹

Where the...