State v. Butler

Citation655 So.2d 1123
Decision Date01 June 1995
Docket NumberNo. 83752,83752
Parties20 Fla. L. Weekly S245 STATE of Florida, Petitioner, v. Yama BUTLER, Respondent.
CourtUnited States State Supreme Court of Florida

Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief, Criminal Appeals, and Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for petitioner.

Nancy A. Daniels, Public Defender, and Abel Gomez, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.

ANSTEAD, Justice.

We have for review Butler v. State, 634 So.2d 700 (Fla. 1st DCA 1994), which certified conflict with State v. Flowers, 566 So.2d 50 (Fla. 2d DCA 1990), and State v. Brown, 556 So.2d 790 (Fla. 2d DCA 1990). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We quash the decision below and approve State v. Flowers, 566 So.2d 50 (Fla. 2d DCA 1990), and State v. Brown, 556 So.2d 790 (Fla. 2d DCA 1990).

FACTS AND PROCEEDINGS BELOW 1

Respondent Yama Butler was charged with possession of cocaine in violation of section 893.13(1)(f), Florida Statutes (1991). Butler claimed that his arrest was illegal because the officer arresting him lacked probable cause for believing Butler had committed a crime. Butler filed a motion to suppress the evidence seized upon his arrest. When the motion was denied, Butler pled nolo contendere, expressly reserving his right to appeal the denial of the motion to suppress. On appeal, the district court reversed the trial court's denial of Butler's motion to suppress, but certified conflict with other district court opinions.

The evidence presented at the motion to suppress hearing, considered in the light most favorable to the prevailing party, the State, reflects that at about 11:30 p.m. on April 25, 1992, Officer Putnam was contacted by a known confidential police informant. Putnam had used information from this informant on at least twenty occasions since February 1, 1992, and sixty to seventy percent of these tips had resulted in felony arrests. The informant told Putnam that a black male, about 5'10" tall, wearing a black jacket, white t-shirt, and blue jeans, was selling Within fifteen minutes of receiving this tip, Putnam and another officer saw Butler standing on the sidewalk in front of 726 West Beaver Street. Butler's clothes and appearance exactly matched the description given by the informant, and Putnam noted that the only other person located in the vicinity did not meet this description. Putnam then approached Butler who initially turned as if to walk away, but then stopped. Putnam patted Butler down on the outside of his clothing and felt a large, soft bulge in Butler's left front pants' pocket, which he believed to be money. Putnam asked Butler about the bulge, and Butler responded that it was twenty-eight one-dollar bills. Putnam then reached into Butler's pocket and retrieved the folded money (i.e., twenty-seven or twenty-eight bills), but found no cocaine. However, when Putnam reached into the pocket again, he retrieved another folded dollar bill which contained powdered cocaine as the informant had described. Putnam then formally took Butler into custody.

powdered cocaine on the sidewalk in front of 726 West Beaver Street, a location known to Putnam to be part of an area with a high volume of street level drug sales. Putnam had seized crack cocaine two months earlier at this exact location. The informant told Putnam that the described drug seller wrapped cocaine inside rolled-up one-dollar bills and placed them in his pants pocket, ready to sell.

The trial court denied the motion to suppress, finding there was probable cause for a warrantless arrest and search predicated on the information received from the informant and considering the totality of the circumstances known to the police officer.

LAW AND ANALYSIS

This Court is bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions. See Art. I, Sec. 12, Fla. Const.; Bernie v. State, 524 So.2d 988, 990-91 (Fla.1988). Accordingly, we must determine whether the First District's analysis is consistent with the "totality of circumstances" analysis for determining probable cause as adopted in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

PRE-GATES LAW

Prior to Gates, the United States Supreme Court established a probable cause analysis that came to be known as the "Aguilar- Spinelli two-prong test." This analysis was formulated in the decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

At issue in Aguilar was the sufficiency of a search warrant affidavit which stated:

Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.

378 U.S. at 109, 84 S.Ct. at 1511. The Court found the affidavit inadequate, reasoning:

The vice in the present affidavit is at least as great as in Nathanson 2 and Giordenello. 3 Here the "mere conclusion" that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein," it does not even contain an "affirmative allegation" that the affiant's Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, ... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, ... was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," ... or, as in this case, by an unidentified informant.

                unidentified source "spoke with personal knowledge."   For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession.  The magistrate here certainly could not "judge for himself the persuasiveness of the facts relied on ... to show probable cause."   He necessarily accepted "without question" the informant's "suspicion," "belief" or "mere conclusion."
                

Id. at 113-15, 84 S.Ct. at 1513-14 (footnotes & citations omitted). This last quoted paragraph contains what became known as "Aguilar's two-pronged test." 4

Under the first or "basis of knowledge" prong of the Aguilar analysis, facts must be disclosed demonstrating the basis of a police informant's knowledge that evidence of crime would be found. Under the second, "veracity" prong, facts must be revealed which indicate either the credibility of the informant or the reliability of his information on the particular occasion. Thus, the second or veracity prong was said to have a "credibility spur" and a "reliability spur." 1 Wayne R. Lafave, Search and Seizure Sec. 3.3(a), at 613 (2d ed.1987). Both prongs of the Aguilar test needed to be satisfied for a finding of probable cause.

THE INFORMANT'S VERACITY

The "veracity" prong of the Aguilar test was usually established by the prior record of the informant in providing reliable tips that proved accurate. See, e.g., McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (officer testified that he had been acquainted with informant for about a year and that during this period informant had supplied him with information 15 or 16 times which resulted in numerous arrests and convictions; another officer also testified that he had used the same informant 20 to 25 times which led to many convictions). Only if the informant's credibility could not be established was it necessary to consider the alternative reliability spur of the veracity prong of Aguilar. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (holding that declaration against interest meets reliability spur).

BASIS OF KNOWLEDGE

The most direct way of establishing the basis of knowledge prong of the Aguilar test was by explicitly setting out how the informant claimed to have come by the information he gave to the officer. Lafave, supra, at 615; see Spinelli, 393 U.S. at 425, 89 S.Ct. at 593 (White, J., concurring). However, the Spinelli Court also held that the absence of a direct showing as to the informant's knowledge was not necessarily fatal, if a basis of knowledge could be established from the wealth of detail provided in the tip:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.

The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark. While Hereford, the Government's informer in that case, did 393 U.S. at 416-17, 89 S.Ct. at 589-90 (footnote omitted). 5

not state the way in which he had obtained his information, he reported that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings....

To continue reading

Request your trial
67 cases
  • Harris v. State
    • United States
    • Florida Supreme Court
    • September 22, 2011
    ...has proven to be accurate and true.’ Generally, this level of previous contact is sufficient to establish veracity.”); State v. Butler, 655 So.2d 1123, 1130 (Fla.1995) (“In this case, we have an informant whose veracity (i.e., credibility and reliability) is unquestioned. Officer Putnam had......
  • Jenkins v. State
    • United States
    • Florida Supreme Court
    • March 6, 2008
    ...criteria to determine whether a tip from a confidential informant was sufficient to establish probable cause. In State v. Butler, 655 So.2d 1123 (Fla.1995), this Court considered the following [A]t about 11:30 p.m. on April 25, 1992, Officer Putnam was contacted by a known confidential poli......
  • State v. Tuttle
    • United States
    • Tennessee Supreme Court
    • April 5, 2017
    ...State v. Barton , 219 Conn. 529, 594 A.2d 917, 926–27 (1991) ; Gardner v. State , 567 A.2d 404, 409 (Del. 1989) ; State v. Butler , 655 So.2d 1123, 1125 (Fla. 1995) ; State v. Stephens , 252 Ga. 181, 311 S.E.2d 823, 826 (1984) ; State v. Lang , 105 Idaho 683, 672 P.2d 561, 562 (1983) ; Peop......
  • Crain v. State
    • United States
    • Florida Supreme Court
    • November 18, 2005
    ...rule and to allow adherence by the Florida courts to the good faith exception adopted by the federal courts. See State v. Butler, 655 So.2d 1123, 1125 (Fla.1995) ("This Court is bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whet......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT