State v. Nittolo
| Decision Date | 30 July 1975 |
| Docket Number | No. 46642,46642 |
| Citation | 317 So.2d 748 |
| Parties | STATE of Florida, Petitioner, v. Anthony Frank NITTOLO et al., Respondents. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., C. Marie Bernard, Asst. Atty. Gen., and John Scarola, Asst. State's Atty., for petitioner.
Donald P. Kohl and Richard W. Springer of Kohl, Springer, Springer and Vassallo, Charles W. Musgrove, West Palm Beach, Richard L. Jorandby, Public Defender, Bruce Zeidel and Maureen L. McGill, Asst. Public Defenders, for respondents.
This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, in State of Florida v. Nittolo, Hover and McKinnon, 303 So.2d 690 (Fla.App., 1974), which conflicts with State v. Gustafson, 258 So.2d 1 (Fla.1972), affirmed 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and State v. Jackson, 240 So.2d 88 (Fla.App. 3, 1970). We have jurisdiction pursuant to Article V, Section 3(b) (3), Florida Constitution (1973).
Respondents were charged by information with possession of marijuana in excess of five grams. They moved to suppress the evidence to be used in this prosecution on the grounds that the search resulting in discovery of the evidence was pretextual, that the defendants were stopped on the pretext of a traffic violation in order to permit a search for evidence of an unrelated offense, and that the search and seizure was not incidental to a valid arrest. The motion to suppress the quantity of marijuana found in a cellophane bag that the arresting officer had seen thrown out the passenger side of the vehicle in which defendants were occupants, was granted by the trial court based upon the trial court's determination that the fruit of the poisonous tree doctrine was applicable because of illegal activity by police prior to contraband being thrown out the window, and the District Court affirmed without opinion with Judge Mager dissenting with opinion.
The factual basis relative to the arrest, search and seizure is as follows. In the instant situation, a police officer received word from his dispatcher about five o'clock in the morning to be on the lookout for a vehicle which was suspected of containing illegal narcotics or drugs. Apparently, a description of the vehicle was furnished to the policy officer who was advised merely to observe the vehicle if located. Ultimately the policy officer in question saw a vehicle fitting the description and followed it for a few blocks until it made a right turn on red at an intersection marked 'No Right Turn on Red.' After turning on his floodlights to illuminate the vehicle and his flashing blue light and while the cars were still moving, the officer observed something thrown from the passenger side of defendant's vehicle. The police officer stopped his vehicle to retrieve the object which turned out to be a cellophane bag containing marijuana; in the meantime, a fellow officer stopped the defendant's vehicle. The police officer who was originally in pursuit arrested the defendants after retrieving the substance and determining the same to be marijuana.
We agree with petitioner that the District Court erred in affirming the trial court's order suppressing the marijuana as illegally obtained on a pretextual traffic stop and would adopt the able dissenting opinion of Judge Mager, as follows:
'The evidence suppressed was a quantity of marijuana found in a cellophane bag that the arresting officer had seen thrown out the passenger side of the vehicle in which defendants were occupants. The order of suppression was based upon the trial court's determination that the 'fruit of the poisonous tree doctrine' was applicable because of the 'illegal' activity by the police Prior to the contraband being thrown out the window.
'The courts have allowed the seizure of evidence 'voluntarily abandoned' where no improper or unlawful act was committed by the law enforcement officers prior to such abandonment. State v. Jackson, Fla.App.1970, 240 So.2d 88; Fletcher v. Wainwright, 399 F.2d 62 (5 Cir. 1968). For example, in Fletcher, officers (without an arrest warrant, search warrant, or probable cause to arrest) while investigating a jewel theft, kicked in a hotel door to gain admittance causing one of the occupants to throw stolen jewelry out the window during the incident. The Fifth Circuit in Fletcher held, in part, that 'since the initial entry was improper and the items were thrown out the window as a direct result of...
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Taylor v. State
...and the apprehension of criminals or require us to strain our Constitution through a filament of unrealistic exactitude, State v. Nittolo, 317 So.2d 748, 750 (Fla.1975), nonetheless we are compelled in close cases to decide in favor of the individual rights of the citizen as guaranteed by t......
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State v. Oliver
...(Fla.1st DCA 1958); State v. Jackson, 240 So.2d 88 (Fla.3d DCA 1970), or after such a stop has been attempted or completed, State v. Nittolo, 317 So.2d 748 (Fla.1975); State v. Padilla, 235 So.2d 309 (Fla.3d DCA 1970), or (c) in a hotel room or shack which has been vacated, Abel v. United S......
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State v. Mann
...the search warrant requirements imposed by the fourth amendment. United States v. Humphrey, 409 F.2d 1055 (10th Cir.1969); State v. Nittolo, 317 So.2d 748 (Fla.1975), cert. denied, Hover v. Florida, 423 U.S. 1036, 96 S.Ct. 572, 46 L.Ed.2d 411 (1975). See also State v. Cohen, 24 SBB 388 (Ct.......
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State v. Davis, 81-340
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