State v. Caballero, s. 80-969

• Decision Date: 21 April 1981
• Docket Number: 80-970,Nos. 80-969,s. 80-969
• Citation: 396 So.2d 1210
• Parties: The STATE of Florida, Appellant, v. Jorge CABALLERO, Appellee.
• Court: Florida District Court of Appeals

Page 1210

396 So.2d 1210

The STATE of Florida, Appellant, v. Jorge CABALLERO, Appellee.

Nos. 80-969, 80-970.

District Court of Appeal of Florida, Third District.

April 21, 1981.

Janet Reno, State Atty. and Stephen V. Rosin and Russell R. Killinger, Asst. State Attys., for appellant.

Irwin F. Kosdan, Miami, for appellee.

Before BARKDULL, NESBITT and BASKIN, JJ.

BASKIN, Judge.

In consolidated appeals, the State of Florida challenges an order of the trial court dismissing an information and an order suppressing physical evidence, photographic identification, and a confession. We reverse the order dismissing the information charging defendant with loitering and prowling (circuit court case number 80-2277); we reverse the suppression of the evidence, photographic identification and the confession in the robbery case (circuit court case number 80-2275). ¹

At approximately 1:00 a. m. Officer Leis, on routine patrol for the Dade County Public Safety Department, saw defendant's car parked with its motor running and its lights out at a gas station next to a Lums restaurant. Someone ran from the alleyway between the gas station and the closing restaurant and jumped into defendant Caballero's car. The car proceeded to the highway, its lights still out. The driver then made a U-turn, simultaneously turning on the lights. The officer followed the car and at a well-lit area ordered the occupants to stop. Upon request, defendant produced his driver's license and explained that he had gone to the gas station to make a U-turn. Since the explanation was inconsistent with the fact that someone had jumped into the car, Officer Leis asked the other occupant, Roy Thomas, to step out of the car for questioning. While arresting defendant Caballero for loitering and prowling, Officer Leis observed ammunition on the floor of the car, and in a subsequent search, found a .357 magnum under the front seat. Defendant was informed of his rights and taken to the police station where he was again advised of his constitutional rights.

At the police station, defendant noticed a twenty-dollar bill that had been taken from Thomas. He told Officer Leis the bill looked counterfeit and that he knew counterfeiting was a federal crime. When Officer Leis confirmed that counterfeiting was a federal crime, defendant related the circumstances preceding his arrest, despite his former disinclination to tell the officers what had occurred. He told the officers that he and Thomas had tried to "rob" Lums but had failed because the doors were locked. Detective Richardson, who had investigated an armed robbery at another Lums in North Dade, decided the description of the robbers matched the appearance of defendant Caballero and Roy Thomas. Detective Richardson asked defendant Caballero if he would like to make a statement concerning that robbery, and after again being advised of his rights, defendant Caballero confessed his role in the north Dade Lums' robbery.

Following a hearing, the trial court ruled that no probable cause existed to justify an arrest for loitering and prowling. Accordingly, the court suppressed as "fruit of the poisonous tree" the physical evidence and photo identification by the victims. During the hearing on his Motion to Suppress, defendant Caballero testified that he had confessed only because he was afraid that the counterfeit bill would implicate him in a federal crime. The court suppressed defendant's confession, finding that it was involuntary as well as the product of the illegal arrest.

First, we consider the state's contention that the physical evidence, photographic identification, and confession should not have been suppressed. It argues that Officer Leis had probable cause to believe defendant was loitering and prowling, Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977); State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970), justifying his arrest.

Section 856.021(1), Florida Statutes (1979) defines loitering and prowling:

It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

Defendant argues that even though someone had been observed running toward defendant's car, and the motor was running but the lights were out, no probable cause existed to believe criminal activity had occurred. He asserts that the officer's failure to detain the driver for driving without lights or for making a U-turn indicated that he did not suspect criminal activity had occurred. Furthermore, he contends, the officer did not ask the passenger to explain what he was doing outside the car.

Probable cause exists "where the facts and circumstances within the officer's knowledge ... are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been committed." Benefield v. State, 160 So.2d 706, 708 (Fla.1964); see Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). When surrounding circumstances suggest to a reasonable man threat or concern for public safety, law enforcement officials may act to avert a breach of the peace or a criminal threat. B. A. A. v. State, 356 So.2d 304 (Fla.1978); State v. Ecker, 311 So.2d 104 (Fla.1975). The officer must, however, afford a pre-arrest opportunity to the suspect to dispel alarm. Palmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980); S. F. v. State, 354 So.2d 474 (Fla. 3d DCA 1978). Defendant Caballero's explanation failed to dispel the officer's alarm, and the totality of circumstances justified the officer's conclusion that probable cause to believe criminal activity was taking place existed. Thus, neither the evidence nor the confession should have been suppressed.

Turning to the second ground for the trial court's suppression of defendant's confession, we address the premise for the court's decision, the court's finding that the confession resulted from an implied threat. The state cannot establish guilt through statements obtained as a result of psychological or physical coercion. Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Burch v. State, 343 So.2d 831 (Fla.1977); Coffee v. State, 25 Fla. 501, 6 So. 493 (1889). A coerced confession offends due process of law. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Brewer v. State, 386 So.2d 232 (Fla.1980). Although defendant argues that his confession was produced through fear of prosecution for the federal crime of counterfeiting, we cannot agree that under the circumstances suppression was required. Defendant was advised of his rights, Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Burch v. State, supra, both at the time of his arrest and at the police station where he executed the rights' waiver form. It was defendant Caballero who initiated the conversation concerning the twenty-dollar bill and who admitted that he already knew counterfeiting was a federal crime. Officer Leis told defendant Caballero that instead of speaking to him, defendant should speak to Sergeant Dickson. When Sergeant Dickson and Detective Richardson asked defendant Caballero if he wanted to make any statement concerning the Lums' robbery, defendant replied that he did, and he was again advised of his constitutional rights. He later testified that he was not threatened and was advised of his right to a lawyer but did not wish to be represented.

Although...