State v. Redding, 78-437
| Decision Date | 13 September 1978 |
| Docket Number | No. 78-437,78-437 |
| Court | Florida District Court of Appeals |
| Parties | STATE of Florida, Appellant, v. Robert REDDING, Appellee. |
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
Jack O. Johnson, Public Defender, and Daphne W. Boswell, Asst. Public Defender, Bartow, for appellee.
The state appeals an order suppressing some packets of a controlled substance seized from the defendant.
At 11:15 p. m. on November 26, 1977, two officers of the St. Petersburg Police Department investigated a citizen's complaint that a nude male was running around a car parked on the street. When the officers arrived at the scene, they discovered the defendant lying on the front seat of a car. He was fully exposed by virtue of being clad only in an unfastened bathrobe. The defendant's clothes, including his shoes and jewelry, were neatly folded and placed on the back seat of the car. At this point, Brubaker believed that he had probable cause to arrest the defendant for indecent exposure, and he ordered him out of the car.
When the interior light came on as the defendant exited the car, Brubaker could see several small, flat, inch-by-one-quarter-inch tinfoil packets inside the defendant's shoes. Based upon his long experience with drug arrests as an undercover officer in narcotics, Brubaker believed the packets contained either heroin or cocaine. Brubaker instructed his fellow officer to arrest defendant for indecent exposure and to place him in the back seat of the patrol car. Brubaker then removed the tinfoil packets from the defendant's shoes on the back seat. The packets contained phencyclidine.
We believe the packets were properly seized under the "plain view" doctrine. Under this doctrine, an officer who has a prior justification for an intrusion can seize contraband or incriminating evidence which is in plain view. Hornblower v. State, 351 So.2d 716 (Fla.1977). 1 When contraband is spotted under circumstances falling within the purview of the plain view doctrine, it may be immediately seized because of its nature. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978). However, if the items in question are innocent by themselves, they may only be seized if the officer has probable cause to believe that what he sees in plain view is incriminating evidence. State v. O'Steen, 238 So.2d 434 (Fla. 1st DCA 1970). 2
When Officer Brubaker saw the packets, he was in a location where he had a right to be. He knew from his experience in the investigation of drug offenses that narcotics are customarily wrapped in small tinfoil packets. 3 He was aware of the defendant's bizarre conduct, and he saw the peculiar location of the packets. At the very least, Brubaker had probable cause to believe that the packets contained contraband. This was enough to entitle him to make the seizure.
In upholding the seizure we do not reverse the trial court on a finding of fact. The judge had concluded that the officer did have "reasonable cause" to believe that the packets contained illicit contraband, and he only granted the motion to suppress because he believed the case was controlled by our recent opinion in Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). In Carr we held that an officer who observed handrolled cigarettes with the ends twisted shut on the dashboard of an automobile could not seize the cigarettes even though he testified that he "knew" they contained marijuana. Our decision in that case was premised on the fact that even today many smokers prefer to "roll their own" rather than to pay the higher price for manufactured cigarettes. Therefore, in the absence of other circumstances to fortify the...
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...599 (Fla. 2d DCA 1984); Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 754 (Fla.1980); State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978). The right to search in this case is even further reinforced by the fact that the vehicle was about to be removed by the tow ......
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