Thomas v. State
| Decision Date | 03 March 2010 |
| Docket Number | No. 4D08-2276.,4D08-2276. |
| Citation | 28 So.3d 240 |
| Parties | Stanley THOMAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
v.
STATE of Florida, Appellee.
[28 So.3d 241]
Mark S. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, C.J.
After a confidential informant purchased cocaine from a residence, a search warrant issued. On the premises when the police executed the warrant, the defendant in this case was arrested. During later proceedings, he sought disclosure of the identity of the confidential informant because it was relevant and helpful to his defense. The trial court refused to compel disclosure. We reverse for the circuit court to hold an in camera hearing to determine whether the informant has information germane to the defense in this case.
Stanley Thomas was serving a sentence of four years of probation for the crime of delivery of cocaine. He was charged with violating that probation by committing the new offenses of trafficking in cocaine and possession of drug paraphernalia. Although
he was acquitted of the new charges, the trial court found that Thomas had violated his probation.
Thomas's new charges arose from the execution of a search warrant at a residence. A confidential informant made a controlled buy at the residence from the occupant of the house. This purchase supplied part of the probable cause that supported the issuance of the warrant.
Prior to the violation of probation hearing, Thomas moved for an order requiring the state to disclose the confidential informant, contending the informant had information relevant to his defense. Thomas asserted that the house belonged to his uncle, he did not live there, and he was not involved with any of the contraband found during the search, even though he was at the house when the warrant was executed. The trial court denied the motion for disclosure.
At the violation of probation hearing, Thomas's defense was that he could not be found guilty of constructive possession of the drugs and paraphernalia, because he did not reside at the residence and the drugs were not in plain view.
A key state witness at the hearing was the lead detective. He said that he entered the residence after SWAT officers, who had secured Thomas face down on the floor. A 14 year old girl and a baby were also present. The detective said he found crack cocaine in plain view on the dining room table and 40 grams of crack cocaine and an ounce of cocaine in a knife drawer by the kitchen sink. The crack cocaine was freshly cooked, still warm and wet. The detective said that scales and packaging materials also were in plain view.
The detective testified that, when he asked Thomas if those items were all they would find, Thomas replied, "[N]o, that's all, there's nothing else in the house." After being read his Miranda rights, Thomas said he would speak with the detective, although he did not sign a waiver. A narcotics dog alerted at several places in the house. Additional crack was found in a bedroom closet in a coat pocket, along with almost a thousand dollars in cash. When the detective asked Thomas about the money, Thomas told him he was in school and not working and laughingly joked about how he acquired the money. The detective construed his response to mean that Thomas earned money by selling narcotics.
The detective identified an insurance bill addressed to Thomas that was seized during the search. It was placed into evidence. A file cabinet in a bedroom contained Thomas's personal records, but the detective did not collect those records.
During Thomas's cross-examination, the trial court sustained objections to questions dealing with the informant.
Supporting Thomas's defense, the probation officer testified that Thomas never listed the address where he was arrested as his residence and never tested positive for drugs.
When presenting his case, Thomas's attorney first called the girlfriend of Thomas's uncle. She testified that she and the uncle had been living in the residence at the time of the search. There was only one bedroom; the other room was used for storage. Her young daughter stayed there on and off.
The girlfriend said that Thomas frequented the apartment because he used the computer for school, typically staying about an hour. He did not have a key and did not keep his clothes there. Electric bills in the girlfriend's name were introduced into evidence. She said that Thomas did not keep personal items at the house, but she had no knowledge of what
might have been in the file cabinet. She also knew nothing about drugs in the apartment.
Thomas testified that he lived at a different location. He had a job, and he attended school to study game and simulation programming. This course of study required a computer and he did not own one. So, he used his uncle's computer to take online classes three or four days a week for an hour or two.
Thomas said he was disabled and pointed out that his job was not a high paying one; several members of his family helped him in different ways. He lived with his sister. His mother contributed to his probation costs and living expenses. His uncle paid his car insurance; therefore, the bill in Thomas's name was mailed to his uncle's address. He introduced a variety of mail sent to him at his other address.
Thomas pointed out that, since being placed on probation, he had gotten his GED and started college. Thomas explained that on the day of his arrest, he had been playing a video game while waiting for an email from a professor. Thomas received his Miranda rights but disagreed with the detective about the questions asked. He said he would not have been laughing and bragging after just having been arrested.
Thomas denied owning the drugs; had he known what was going on at the apartment, he would not have gone there. He denied that anything that belonged to him had been in the file cabinet. He denied that drugs and drug paraphernalia had been in plain view and said that the police had lied about the location of the drugs. He denied that the money in the coat belonged to him.
Thomas proffered what the detective had said in deposition—that the informant told the detective that he could buy drugs from someone named "Stan," and described a man with a different build and hair style than Thomas. However, at an earlier hearing, the state represented that the informant's description of the drug seller matched Thomas. Thomas wanted to question the informant, because he believed that the informant would testify...
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