State v. Rebozo, 71--1414

• Decision Date: 22 August 1972
• Docket Number: No. 71--1414,71--1414
• Citation: 265 So.2d 706
• Parties: The STATE of Florida, Appellant, v. Michael Alan REBOZO, and Paul Vincent Gonzalez, Jr., Appellees.
• Court: Florida District Court of Appeals

Page 706

265 So.2d 706

The STATE of Florida, Appellant, v. Michael Alan REBOZO, and Paul Vincent Gonzalez, Jr., Appellees.

No. 71--1414.

District Court of Appeal of Florida, Third District.

Aug. 22, 1972.

Richard E. Gerstein, State's Atty., and Jack R. Blumenfeld and Joe Durant, Asst. State's Attys., for appellant.

Nathaniel L. Barone, Jr., Miami, for appellees.

Before CHARLES CARROLL and HAVERFIELD, JJ., and WADDELL, TOM, Jr., Associate Judge.

PER CURIAM.

This is an appeal by the state from an order of the criminal court of record of Dade County granting a motion of the appellees, defendants below, to suppress certain evidence.

The facts developed on the hearing on the motion to suppress were as follows. Officer Gardner, of the Dade County Public Safety Department, while on duty in a police vehicle on a certain date at 11:30 P.M., at a point on the west side of the Palmetto Expressway where there was an overpass for pedestrians and bicyclists, saw two men standing on the overpass. The location was one which was known by the officer to have been used for vandalism. He attempted to approach the men on foot. When he reached a point approximately sixty feet from them they picked up some belongings and fled from the overpass toward the east. As they did so, Gardner saw one of them drop something which, upon inspection he found to be a package containing what he concluded was marijuana. Gardner radioed a 'bolo,' that is, a notice to other officers to 'be on the lookout for' the two men, with a description thereof as to height, build and clothing (including a distinctive garment, a white sweater or shirt circled with dark stripes), and giving the location and announcing the marijuana possession. A fellow officer, Jackson, who was in a vehicle some ten blocks to the west, upon receiving the radioed information, proceeded into the area indicated. He saw two men at an outdoor telephone booth who appeared to him to fit the description given in the bolo. As Jackson was making a U-turn to get to where the men were he saw them enter a red Volkswagen and drive westerly and onto the Bird Road northbound entrance ramp of the Palmetto Exprssway. Jackson followed and 'pulled them over' on the shoulder of the expressway a short distance beyond the ramp entrance. Meanwhile, Jackson had radioed his observance of the men and that he was proceeding after their car, and upon stopping them radioed for backup police support.

The driver of the Volkswagen, Rebozo, got out of the car, and in response to request from Officer Jackson furnished identification. At that time Jackson saw a brown vial with a white top protruding three quarters of an inch or an inch from the left front pocket of Rebozo's blue jeans. Jackson told Rebozo to stay there, and went first to the driver's side of the Volkswagen, in which Gonzalez was seated, and then around to the passenger side. Gonzalez opened the door as if to get out, but was told to remain therein. With the door open, Jackson saw, on the floor of the car protruding from under the front seat near Gonzalez' feet, an open brown pouch in which were exposed several transparent bags containing white material which the officers concluded (correctly as it turned out) was a narcotic. Jackson returned to Rebozo and noticed the vial no longer was exposed in his pocket. With his flashlight the officer found such a vial on the ground, nearby Rebozo, in a condition which he described as broken into several pieces as if stepped on. Jackson observed that the contents of the vial, some of which remained in the broken parts thereof, were a white substance he stated appeared to be a narcotic. By that time Officer Gardner and a back-up officer were present. Jackson then informed the men they were under arrest for possession of narcotic drugs.

In court at the hearing on motion to suppress were five boxes containing white powder, which had been transferred thereto from the several containers thereof found in the Volkswagen, and one of which contained material which...