State v. Heiser, 90-1697

Decision Date24 July 1991
Docket NumberNo. 90-1697,90-1697
Citation583 So.2d 389
PartiesSTATE of Florida, Appellant, v. Carl HEISER, Appellee. 583 So.2d 389, 16 Fla. L. Week. D1905
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellant.

Kevin J. Kulik of Kay, Bogenschutz and Dutko, P.A., Fort Lauderdale, for appellee.

GARRETT, Judge.

The state appeals the trial court's granting of appellee's motion to suppress physical evidence. We reverse.

Appellee made a telephone call to get help because he had been shot. Members of the Pompano Beach Police Department found him lying on the living room floor of his apartment. Appellee was transported to the hospital for treatment of his critical wounds. Detective Fowler, a 20 year police veteran, entered the apartment to investigate the shooting. Fowler learned that appellee told the police he had been shot by two unknown males. Fowler saw a bullet hole in living room wall and an "enforcer" (.30 caliber rifle with a pistol grip) on the floor. He also saw a .30 caliber spent cartridge and two 9 millimeter cartridges. There was blood on the telephone and trails of blood throughout the apartment. Inside one of the bedrooms, there was a locked strongbox on the bed, white powder on a dresser and a scale in the dresser drawer. Inside the other bedroom, Fowler found a locked safe and several rifles. White powder that Fowler suspected to be cocaine was on a toilet seat in a bathroom. Based on his observations and his past investigative experience, Fowler concluded that appellee had been the victim of a "drug rip-off" and took the strongbox, safe, rifles and cartridges into his custody for use as evidence to prove who shot appellee and the motive. Fowler decided to take the evidence to the police station rather than posting an officer to guard the [T]he State, having chosen to rely upon voluntary consent as the basis for the instant search, has failed to prove by a preponderance of the evidence, or by any standard, that [appellee] did voluntarily consent to the seizure of the closed containers in his apartment.

                unoccupied apartment around-the-clock.   At the police station, cobalt testing of the dial on the safe revealed the presence of cocaine.   White powder that had inadvertently fallen out of the strongbox when handled at the police station also tested positive for cocaine.   The next day Fowler obtained a search warrant to open the safe and strongbox and found that both contained a large quantity of cocaine.   Appellee moved to suppress the contents and the trial judge found that
                

The trial judge granted the motion and held:

[T]he officers were justified in seizing any evidence or contraband within their 'plain view', but they were not justified in searching and/or seizing closed containers or concealed areas within the apartment.

THE SEIZURE

We believe that the trial judge misunderstood the consent issue. The state argued that appellee's call for help constituted his consent for the officers to enter the apartment. That argument appears to have been successful as the trial judge upheld the seizure...

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3 cases
  • Black v. State
    • United States
    • Florida District Court of Appeals
    • December 17, 1993
    ...stolen property or useful as evidence of a crime...." 460 U.S. at 741-42, 103 S.Ct. at 1543, 75 L.Ed.2d at 508. Accord, State v. Heiser, 583 So.2d 389 (Fla. 4th DCA 1991), rev. denied, 593 So.2d 1052 The determination of a trial court in ruling on a motion to suppress comes to an appellate ......
  • State v. Carley, 92-02769
    • United States
    • Florida District Court of Appeals
    • March 11, 1994
    ...(1983); State v. Ecker, 550 So.2d 545 (Fla. 2d DCA 1989). It merely enhanced the officer's "plain view" of the gun. See State v. Heiser, 583 So.2d 389 (Fla. 4th DCA), review denied, 593 So.2d 1052 (Fla.1991). Once the gun was found, the officers were entitled to search the appellee incident......
  • Heiser v. State
    • United States
    • Florida Supreme Court
    • December 18, 1991
    ...1052 593 So.2d 1052 Heiser (Carl) v. State NO. 78,673 593 So.2d 1052 Supreme Court of Florida. Dec 18, 1991 Appeal From: 4th DCA 583 So.2d 389 Rev. ...

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