Trivette v. State, 70-716

Decision Date17 February 1971
Docket NumberNo. 70-716,70-716
Citation244 So.2d 173
PartiesCharles Lavelle TRIVETTE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Leonard L. Stafford, Public Defender, and Michael H. Gora, Asst. Public Defender, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and James M. Adams, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, JAMES C., Associate Judge.

This is an appeal from a judgment and sentence of the Court of Record of Broward County sentencing appellant to two and one-half years probation as the result of his plea of nolo contendere to an information charging him with possession of marijuana.

It appears that defendant-appellant, age 21, and another young man were walking south on the west side of U.S. Highway #1 in the City of Hollywood, Florida at approximately 1:30 a. m. The area was otherwise deserted. A police officer on routine patrol proceeding north on said highway passed the two boys and as he did so he observed that '* * * they took special notice of me. They both turned and looked at me, and the defendant * * * appeared to be putting something in his right pocket, turning away * * *.' The officer turned his police car around, stopped defendant and his companion and asked for their identification. Defendant furnished his but the companion had none. The officer interrogated them as to their destination and other general matters, though he could not remember the questions verbatim. He testified that defendant 'appeared to be drowsy, sleepy. He didn't answer the questions as if he were in a clear mind. I was shining the flashlight in his eyes and his eyes were dilated. When I asked him questions his mind appeared to wander to other things'. The officer concluded that the defendant was intoxicated and arrested him for public intoxication. On cross-examination the officer testified that defendant was cooperative, showed him his identification, didn't cause any trouble, and nothing was smelled on his breath. Further, on cross-examination it was called to the officer's attention that he didn't mention the fact that defendant and his companion had long hair and wore bell bottoms, and he was asked if that added something to his reason for stopping them. He answered: 'Yes sir. I will tell you something sir: Anyone out at that time of the day, I would stop'. After placing the defendant under arrest for public intoxication, the officer searched him and found what appeared to be marijuana, whereupon he arrested him for possession thereof.

Defendant pled not guilty at his arraignment and filed a motion to suppress the evidence found on his person on the ground that the search was made pursuant to an unlawful arrest. The trial court heard testimony in support of the motion and denied it. Thereafter, defendant changed his plea from not guilty to nolo contendere, specifically noting it was being done in view of the court's previous ruling denying his motion to suppress. It is conceded by appellee that the plea of nolo contendere did not waive the claimed error in denying the motion to suppress when the ultimate plea was entered due to the court's ruling on said motion. Ashby v. State, Fla.App.1969, 228 So.2d 400.

The thrust of defendant's assignments of error is that the trial court erred in failing to sustain the motion to suppress because the arrest was unlawful, as probable cause did not exist so as to allow the arrest without a warrant.

Since the crime for which the defendant was initially arrested, and as a result of which the search was made, was a misdemeanor and the arrest having been made without a warrant, the decision here must of course turn upon a finding vel non that the officer had probable cause to arrest the defendant for public intoxication. Thus, the elements of the crime of public intoxication become vital. Is the required degree of intoxication so extreme as to meet the standard related in People v. Williams, City Ct.1961, 215 N.Y.S.2d 841, that a man is intoxicated 'when he falls flat on his face and hangs on to the grass to keep from falling off the earth', or 'not drunk is he who from the floor can rise again and drink once more, but drunk is he who prostrate lies and can neither drink nor rise'? Or is the more enlightened rule that arrived at in the Williams case, supra, that a person is intoxicated when there is an impairment of his capacity to think and/or act correctly and/or when he has lost, even in part, the control of his physical and mental faculties? We think that fairly states the rule. In...

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12 cases
  • Ackles v. State
    • United States
    • Florida District Court of Appeals
    • December 12, 1972
    ...the defendant's right to challenge such order on appeal following a plea of nolo contendere. State v. Ashby, supra, and Trivette v. State, Fla.App.1971, 244 So.2d 173. The pertinent facts are as follows: At 3:00 A.M., a police officer of the City of Fort Lauderdale found Ackles asleep in a ......
  • Owaki v. City of Miami
    • United States
    • U.S. District Court — Southern District of Florida
    • June 21, 2007
    ...in determining the validity of the arrest itself." Marx v. Gumbinner, 905 F.2d 1503, 1507 (11th Cir.1990); see also Trivette v. State, 244 So.2d 173, 175 (Fla. DCA 1971); Brown v. State, 91 So.2d 175, 177 (Fla.1956). The arrest of Plaintiff under these circumstances was clearly valid, rende......
  • Marx v. Gumbinner
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 13, 1990
    ...charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself. See Trivette v. State, 244 So.2d 173, 175 (Fla.App.1971); Brown v. State, 91 So.2d 175, 177 (Fla.1956); see also Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.E......
  • State v. Knapp
    • United States
    • Florida District Court of Appeals
    • May 1, 1974
    ...by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. Trivette v. State, Fla.App.3rd, 1971, 244 So.2d 173. The officer need not actually see the law being violated nor must he satisfy himself beyond any question that a felony has......
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