Walker v. State, 66--277

• Decision Date: 28 February 1967
• Docket Number: No. 66--277,66--277
• Citation: 196 So.2d 8
• Parties: Thomas WALKER, Jr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 8

196 So.2d 8

Thomas WALKER, Jr., Appellant, v. The STATE of Florida, Appellee.

No. 66--277.

District Court of Appeal of Florida, Third District.

Feb. 28, 1967.

Robert L. Koeppel, Public Defender, and Phillip A. Hubbart, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., Barry N. Semet and Arden M. Siegendorf, Asst. Attys. Gen., for appellee.

Before PEARSON and SWANN, JJ., and WILLIAMS, GENE, Associate Judge.

PER CURIAM.

Defendant, Thomas Walker, Jr., appeals from a judgment of conviction and sentence for the crime of possession of marijuana. He claims reversible error was committed by the denial of his motion to suppress evidence (marijuana) found on his person subsequent to the arrest.

On December 6, 1965, at 4:30 P.M., Officer Nicholas Navarro of the Dade Sheriff's Office, received a telephone call. The caller identified himself as one Grisby and said that a man had been trying to sell, or give, him marijuana for him to sell; that this man had just left the bar from where the call was being made; that he was carrying a package of marijuana in his left rear pants pocket, and that he, Grisby, would point the man out to the police.

Officer Navarro and a federal agent, Klick, immediately proceeded to the bar where they met Grisby, who told them that the defendant had just left the bar and was walking north. Officer Navarro arranged with Grisby to catch up with the suspect and to give a pre-arranged signal when he could verify that the suspect still had the marijuana.

Navarro and Grisby then proceeded north on opposite sides of the street. As they arrived at the next intersection, the defendant walked across the street to talk to Grisby. They engaged in a brief conversation, during which Grisby raised his hand. Officer Navarro crossed the street, placed the defendant under arrest for violation of the Florida Narcotics Laws, and ordered him to surrender the contends of his left rear pocket. The defendant's pocket contained a quantity of marijuana which Officer Navarro seized.

The arrest and search of the defendant took place within approximately fifteen minutes after the initial telephone call from Grisby. Navarro testified that he had never spoken to Grisby prior to the telephone call, and that he had never met the defendant prior to the defendant's arrest. Grisby appeared at the trial and testified as to these events.

At the trial, the defendant made an oral motion to suppress the evidence seized from him on the ground that the search was incident to an unlawful arrest of the defendant, since the arrest was based entirely on the uncorroborated hearsay accusation of Grisby, an informer who was unknown to the police. The trial court denied the motion to suppress and admitted into evidence, over objection, the marijuana seized from the defendant by the police. Defendant was convicted and now appeals.

The State argues that the real point involved on appeal is 'whether probable cause to make an arrest without a warrant exists when an individual advises the police that a man has attempted to sell narcotics to him, that said man has narcotics in his possession and said individual, upon conversing with the man within minutes after notifying the police and under their observation, signifies to them that the man has narcotics in his possession.'

As authority for reversal appellant relies upon Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). There, an arrest without a warrant was made solely on the basis of information given to an officer, two days prior to the actual arrest, by a person described as a 'reliable paid informer.' The search subsequent to the arrest revealed narcotics; the person giving the information died prior to the hearing on the defendant's motion to suppress the evidence, and the motion was denied. The Supreme Court held that the arrest without a warrant was legal, since the officer had probable cause to believe that the person to be arrested had committed a violation of the Narcotics Act, and that the agent could rely on hearsay evidence from a reliable informer.

Appellant suggests that the law therefore is that a police officer may make a lawful arrest based on hearsay from a reliable informant so long as the hearsay has been reasonably corroborated by independent facts within the arresting officer's knowledge, and that such was not the case here.

Section 901.15, Florida Statutes, F.S.A., provides that a peace officer may arrest without a warrant when he has reasonable ground to believe that A felony has been or Is being committed and Reasonable ground to believe that the person to be arrested has committed or Is committing it.

Section 398.03, Florida Statutes, F.S.A., makes it unlawful for any person to have under his control, or to sell any narcotic drug with certain exceptions. A violation of any of the provisions of this law constitutes a felony under Section 398.22, Florida Statutes, F.S.A., and an attempted sale of narcotics is also a felony. Section 776.04(2), Florida Statutes, F.S.A.

When police officers receive a voluntary telephone call from a citizen who identifies himself but has no previous record as an informant, about an attempted sale of...