State v. Miller

• Decision Date: 26 September 1972
• Docket Number: No. 71--991,71--991
• Citation: 267 So.2d 352
• Parties: STATE of Florida, Appellant, v. Danny Ray MILLER et al., Appellees.
• Court: Florida District Court of Appeals

Page 352

267 So.2d 352

STATE of Florida, Appellant, v. Danny Ray MILLER et al., Appellees.

No. 71--991.

District Court of Appeal of Florida, Fourth District.

Sept. 26, 1972.

Rehearing Denied Nov. 3, 1972.

Rom W. Powell, County Sol. and John H. King, Asst. County Sol., Orange County, Orlando, for appellant.

James C. Dauksch, Jr., Orlando, for appellee, Robert E. Collier.

Warren H. Horton, Asst. Pub. Defender, Orlando, for appellee, Jack P. Moorehead.

Peter M. De Manio, Orlando, for appellee, Danny Ray Miller.

MAGER, Judge.

It is our opinion that under the circumstances of this case there was probable cause to stop, detain, search and arrest; the evidence thus obtained was legally obtained and should not have been suppressed.

In a well reasoned opinion involving the search of automobiles, Judge Mann very aptly observed:

'The Constitution forbids Unreasonable searches and seizures. It forbids harassment and prejudicial enforcement of the law. But the Constitution does not forbid the application of common sense in the detection of crime and the apprehension of criminals.' State v. Holmes, Fla.App.1971, 256 So.2d 32, 37.

It is very often the case that the search of a motor vehicle is made without a warrant. These situations are created by the high degree of mobility of the automobile which makes it impractical to secure a search warrant; to require a warrant under such circumstances might prevent the apprehension of persons carrying illegally obtained goods. Collins v. State, Fla.1953, 65 So.2d 61.

A search without a warrant is, nonetheless, valid in certain instances. In Church v. State, Fla.App.1970, 244 So.2d 506, at p. 508, it was held:

'The search of the automobile may be justified Either because of the existence of probable cause or as an incident to the lawful arrest. The search of a moving vehicle, or one capable of being instantly put into motion, is on a different legal plane than the search of a place such as an office or a shop or a store or even a home. Ever since the Carroll case in 1925, decided by the United States Supreme Court (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543), the legal distinction between search of a moving automobile and other species of searches has been clearly demarcated.' (Emphasis added.)

This distinction is further illustrated in Cameron v. State, Fla.App.1959, 112 So.2d 864, at 873:

'As a necessary and proper evolution of the living law to meet the changing needs of society, the modern trend of authority is to narrow the concept of immunity against searches and seizures when it involves a motor vehicle used as an aid to the commission of crimes, whether in transporting the criminal or the fruit of the crime. This trend is reflected by the acceptance of less compelling facts and circumstances than formerly required to constitute 'probable cause' for an arrest of the driver or occupant, or for search of the vehicle and seizure of property found therein without supporting warrants.'

In Draper v. United States, 1959, 358 U.S. 307, at page 313, 79 S.Ct. 329, at page 333, 3 L.Ed.2d 327, the Supreme Court of the United States in discussing 'probable cause' commented:

'In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical, they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'

A review of the facts leads us to the conclusion that in the case sub judice the search was based upon sufficient probable cause. The record reflects that on the night in question, at approximately 9:30 P.M., two Florida highway patrolmen were parked in their partrol cars near an intersection in a business district. The troopers were engaged in conversation when they observed a red truck pass in front of their patrol cars. One of the troopers remarked that the vehicle looked very similar to a local fire rescue truck. As they continued their conversation the same vehicle again passed in front of them going in the opposite direction. The troopers continued their conversation for another 20 or 30 minutes. Then, one of the troopers noticed the truck entering a nearby construction site where a motel was then under construction. The vehicle was observed disappearing behind the motel; it reappeared approximately 2 or 3 minutes later Within the construction area. The truck then left the site and entered one of the main thoroughfares.

The officers followed the truck and signaled it to pull over to the side of the highway. The truck was stopped within a quarter on a mile of the construction area. The truck had a Missouri tag and was occupied by the defendants. One of the troopers looked into the right door of the truck to the rear and saw a large mass of carpet in the rear of the truck. Upon inquiry the defendants stated that the carpet belonged to them and that they had brought it from home. The defendants indicated that the reason for being in the area was that they were 'just riding around'. While one trooper detained the occupants of the truck the other trooper opened the rear door of the truck to determine the color of the carpet and then proceeded to the motel area to see if any carpet was missing. It was discovered that carpet of the same color was missing from one of the rooms at the motel and upon his return the trooper advised the three men that they were under arrest. Defendants were later charged with breaking and entering with intent to commit a felony and grand larceny, the carpet in the truck being evidence of the grand larceny.

Defendants moved to suppress the evidence in question on the grounds that probable cause did not exist for the search of the truck and that the evidence was illegally seized without a warrant. The trial court granted defendants' motion to suppress from which order the state has appealed.

Applying the principles hereinabove set forth to the foregoing facts, it is our opinion that the 'search' of the truck was justified on the basis of the existence of probable cause; additionally, the search was justified on the basis of being 'incident to a lawful detention'. It is questionable whether there was, in fact or in law, the type of 'search' that would bring into play those principles customarily applicable to search and seizure situations. No 'search' was necessary to determine the presence of the carpet in the truck as it was in the plain view of the investigating officer. In State v. Ashby, Fla.1971, 245 So.2d 225, the Supreme Court of Florida held, at pp. 227, 228:

'It is not a search to observe, and to seize, what is so placed where it may be seen by an officer who is where he has a legal right to be. State v. Parnell, supra, (Fla., 221 So.2d 129); Victor v. State, 141 Fla. 508, 193 So. 762 (1940); Blake v. State, 112 So.2d 391 (Fla.App.3rd, 1959). In application of the 'open view' doctrine, it is not an unreasonable search without warrant for an officer to move to a position where he has a legal right to be, and look for things he may have reason to believe will be seen.'

Similarly, in Donar v. State, Fla.App.1970, 236 So.2d 145, 146, it was observed:

'. . . It is elementary that every search without a warrant, if seeing what is obvious by the beams of a flashlight can be termed a search, is not an unlawful or unreasonable search condemned by provisions of the State and Federal Constitutions. . . .'

See also Gaskins v. State, Fla.1956, 89 So.2d 867; State v. Smith, Fla.App.1966, 193 So.2d 23; Moore v. Wainwright, Fla.App.1971, 248 So.2d 262; State v. O'Steen, Fla.App.1970, 238 So.2d 434; and Boim v. State, Fla.App.1967, 194 So.2d 313.

The fact that the trooper opened the rear door of the truck to ascertain the Color of the carpet After initially observing the presence of the carpet does not, in our opinion, invalidate the 'search'. The entry into the truck was not made to determine what, if anything, the truck contained in the hope of finding something incriminating; instead, After having observed the presence of a large mass of carpet in the rear of the truck, the trooper opened the rear door of the truck to ascertain the color of the carpet. Thereafter the officer went to check the rooms at the motel under construction and found that the carpet missing from one of the motel rooms was the same color as the carpet in the back of the truck. Conceivably the trooper, after having observed the carpet in the rear of the truck, could then have proceeded to the motel room, ascertained the color of the carpet that was missing, returned to the truck and then opened the rear door of the truck to verify the color of the carpet therein; or, upon returning from the motel, placed the defendants under arrest and proceeded thereafter to conduct a search of the truck to ascertain the color of the carpet. The fact that this latter procedure was not followed does not vitiate the search.

It is, however, somewhat difficult to separate the determination of the existence of 'probable cause' from the determination of the lawfulness of the detention. In our view the determination of the probable cause for the search or the reasonableness of such search may well turn on the lawfulness of the detention. It is without dispute that there was No arrest Prior to the 'search' so that it cannot be said that the 'search' was an incident to a lawful arrest. However, it would seem that the search should nevertheless the justified as having been made 'incident to a Lawful detention'. A search, which in this case, was incident to a Lawful detention is as justifiable as a search incident to a Lawful arrest. Standing by itself, a warrantless search must be founded on probable cause. The probable cause requirement is either 'satisfied' or obviated when the warrantless search is incident to a Lawful arrest. Here, too, the probable cause requirement is seemingly satisfied when the search in question was made incident to a Lawful...