State v. Oliver, 78-639

CourtCourt of Appeal of Florida (US)
Writing for the CourtHUBBART
Citation368 So.2d 1331
PartiesThe STATE of Florida, Appellant, v. Timothy OLIVER, Appellee.
Docket NumberNo. 78-639,78-639
Decision Date13 March 1979

Page 1331

368 So.2d 1331
The STATE of Florida, Appellant,
v.
Timothy OLIVER, Appellee.
No. 78-639.
District Court of Appeal of Florida, Third District.
March 13, 1979.
Rehearing Denied April 18, 1979.

Page 1333

Janet Reno, State's Atty., and Ira N. Loewy, Asst. State's Atty., for appellant.

Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.

Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., JR., (Ret.), Associate Judge.

HUBBART, Judge.

This is a criminal prosecution for unlawful possession of marijuana in which the trial court granted the defendant's motion to suppress the subject marijuana on unreasonable search and seizure grounds. The state takes an appeal therefrom, which appeal we have jurisdiction to entertain. § 924.071(1), Fla.Stat. (1977).

The central question presented for review is whether the police retrieval of evidence discarded in the public streets by a defendant (a) after being illegally ordered to stop by the police but (b) before the police have begun a physical search of the defendant's person or property, constitutes a search of the defendant's person within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. We hold that such evidence has been voluntarily abandoned by the defendant in an area where he has no reasonable expectation of privacy for the purpose of avoiding a police search and for that reason the police retrieval of such evidence from the public streets does not constitute a search of the defendant's person within the meaning of the above constitutional provisions. Accordingly, we reverse the order under review.

A

The facts surrounding the seizure of the subject marijuana are undisputed. On December 7, 1977, at approximately 11:45 a.m., Officer Michael Liotti and Detective Wasserman

Page 1334

of the City of Miami Police Department were on patrol in an unmarked police car in the vicinity of Miami Avenue between 65th Street and 70th Street in Miami, Florida. They were investigating residential burglaries in that area and had received reports that some such burglaries may have been committed by young black teenagers on bicycles. The police officers observed the defendant Timothy Oliver and his brother Jerry, both black teenagers, riding bicycles on a pleasant Miami day. The officers had never seen these young men in the area and decided to follow them on the hunch that they might have something to do with the residential burglaries the police were investigating. The officers followed at a safe distance for a few blocks, waited while the pair pulled into a nearby gas station for a soft drink, and then continued to follow them for several more blocks. During the entire time the officers conducted this surveillance, nothing untoward or suspicious occurred other than the two teenagers riding slowly, leisurely looking around the neighborhood.

In the 5600 block of Miami Avenue, the police pulled along side the two teenagers, identified themselves as police officers, and told the two to pull over. Officer Liotti testified that their purpose in doing so was to temporarily detain and question the defendant and his companion concerning the residential burglaries in the area; the officers had no intention of arresting the two young men had they proved cooperative. After being ordered to stop, the defendant and his brother continued riding their bicycles while the defendant was seen to throw a paper bag to the ground on the public street. Detective Wasserman caught up to and detained the defendant and his brother while Officer Liotti retrieved the bag discarded by the defendant. An examination of the bag's contents revealed a substance which appeared to be marijuana. The defendant was thereupon arrested for unlawful possession of marijuana.

The state charged the defendant by information with unlawful possession of more than five grams of marijuana (§§ 893.03(1)(c), 893.13(1)(e), (f), Fla.Stat. (1977)) before the Circuit Court of the Eleventh Judicial Circuit of Florida. The defendant entered a plea of not guilty and filed a pre-trial motion to suppress the subject marijuana on unreasonable search and seizure grounds. The trial court took testimony on the motion wherein the above facts were established and thereafter entered an order granting the defendant's motion to suppress. The state appeals.

B

The Fourth Amendment to the United States Constitution and Article I, Section 12, of the Florida Constitution guarantees to the people, among other things, the right "to be secure in their persons . . . against unreasonable searches and seizures." Central to invoking this constitutional guarantee is a threshold showing that a government officer has seized and searched a person. In the instant case, there is no question that the police seized the defendant's person in the constitutional sense when they ordered the defendant to stop for the purpose of temporary questioning; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), nor is there any doubt that this seizure was unreasonable as it was based on a bare suspicion. Mullins v. State, 366...

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68 practice notes
  • State v. Oquendo, No. 14215
    • United States
    • Supreme Court of Connecticut
    • August 25, 1992
    ...380-81, 568 A.2d 48 (1990) (drugs discarded by defendant fleeing police after illegal seizure inadmissible); but see State v. Oliver, 368 So.2d 1331, 1335-36 (Fla.App.1979), cert. dismissed, 383 So.2d 1200 (Fla.1980) ("a person's otherwise voluntary abandonment of property cannot be tainted......
  • Morales v. State, Nos. 80-248
    • United States
    • Florida District Court of Appeals
    • December 15, 1981
    ...507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Elson v. State, 337 So.2d 959, 963 (Fla.1976); State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980). Second, the search and seizure in question, must be "unreasonable," as ......
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • June 24, 1993
    ...was admissible in evidence because it had been abandoned prior to any search. The court relied on its prior decision in State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980), in which it had held that "a person's otherwise voluntary abandonment of pr......
  • State v. Maya, No. 86-2234
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 1988
    ...v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see State v. Terzado, 513 So.2d 741 (Fla. 3d DCA 1987); State v. Oliver, 368 So.2d 1331 (Fla. 3d Page 1288 DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980); see also California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 10......
  • Request a trial to view additional results
68 cases
  • State v. Oquendo, No. 14215
    • United States
    • Supreme Court of Connecticut
    • August 25, 1992
    ...380-81, 568 A.2d 48 (1990) (drugs discarded by defendant fleeing police after illegal seizure inadmissible); but see State v. Oliver, 368 So.2d 1331, 1335-36 (Fla.App.1979), cert. dismissed, 383 So.2d 1200 (Fla.1980) ("a person's otherwise voluntary abandonment of property cannot be tainted......
  • Morales v. State, Nos. 80-248
    • United States
    • Florida District Court of Appeals
    • December 15, 1981
    ...507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Elson v. State, 337 So.2d 959, 963 (Fla.1976); State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980). Second, the search and seizure in question, must be "unreasonable," as ......
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • June 24, 1993
    ...was admissible in evidence because it had been abandoned prior to any search. The court relied on its prior decision in State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980), in which it had held that "a person's otherwise voluntary abandonment of pr......
  • State v. Maya, No. 86-2234
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 1988
    ...v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see State v. Terzado, 513 So.2d 741 (Fla. 3d DCA 1987); State v. Oliver, 368 So.2d 1331 (Fla. 3d Page 1288 DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980); see also California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 10......
  • Request a trial to view additional results

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