State v. Padilla, 69--891

• Citation: 235 So.2d 309
• Decision Date: 12 May 1970
• Docket Number: No. 69--891,69--891
• Parties: STATE of Florida, Appellant, v. Armando Angel PADILLA, Alberto Louis Hernandez and Guido Jose Rivas, Appellees.
• Court: Court of Appeal of Florida (US)

Page 309

235 So.2d 309

STATE of Florida, Appellant, v. Armando Angel PADILLA, Alberto Louis Hernandez and Guido Jose Rivas, Appellees.

No. 69--891.

District Court of Appeal of Florida, Third District.

May 12, 1970.

Rehearing Denied June 10, 1970.

Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., Richard E. Gerstein, State's Atty., and Alan M. Medof, Asst. State's Atty., for appellant.

Palermo & Connelly and Thomas B. Duff, Miami, for appellees.

Before BARKDULL, HENDRY and SWANN, JJ.

PER CURIAM.

The State of Florida appeals from a trial court order which granted the motion of the appellees (defendants) to suppress certain evidence.

The basic question involved is whether the arresting officer had probable cause to place these defendants under arrest.

The record reflects that on December 5, 1968, two police officers were sitting in an unmarked police car, at night, at a well lit intersection in Miami Beach, Florida.

A car stopped for a red light at this intersection and the occupants were observed by the officers from about 20 feet away, to be passing and smoking a lighted cigarette from the driver to the passenger in the front seat and from there to the passenger in the back seat in a continuous manner. The occupants held the small cigarette in an unusual manner. They made a right turn at the light and continued to pass around the cigarette. The officers observed this type of conduct for approximately six blocks and then stopped the car. One officer testified that the only thing done to stop this car was by turning the ordinary spot light on their car into the car in question and it pulled to the curb without anything else being said or done.

The other officer testified that the spot light was flashed on the car and that a badge was flashed at the occupants and they were requested to pull the car over and that they complied. As the car stopped the defendant Hernandez, sitting on the front passenger seat, threw a white bag into the street beside the car. Officer Tootle walked directly to the bag on the street, picked it up, smelled it and identified the contents as bulk marijuana. Officer Tootle then walked to where Officer Izzo was standing with the defendants, showed them the contents of the bag, and told them that they were under arrest for possession of marijuana. Officer Izzo warned the defendants of their constitutional rights. Thereupon, Officer Tootle searched the car and seized therefrom three packages of cigarette papers, incense, marijuana seeds which were scattered throughout the car, and a second bag of bulk marijuana.

We do not believe that this record demonstrates that the officers had communicated their intention or purpose to make or effect an arrest or that the occupants understood that it was the intention of the officers to make an arrest at the time their automobile was originally stopped. Melton v. State, Fla.1954, 75 So.2d 291. These parties were at that time not in custody of the officers but were merely detained. Cf. Giblin v. City of Coral Gables, Fla.1963, 149 So.2d 561.

In People v. Davis, 260 Cal.App.2d 186, 67 Cal.Rptr. 54 (1968), the court said:

'It is well established that a police officer in the discharge of his duties may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of his duties. * * * Most such occurrences involve persons outdoors at night at times and in areas where one would not reasonably expect to see them and whose behavior on the surface suggests some extraordinary activity.' (citations omitted). At 55.

In Brown...