Wilson v. State, 78-1073

• Decision Date: 03 November 1978
• Docket Number: No. 78-1073,78-1073
• Citation: 363 So.2d 1146
• Parties: William H. WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1146

363 So.2d 1146

William H. WILSON, Appellant, v. STATE of Florida, Appellee.

No. 78-1073.

District Court of Appeal of Florida, Second District.

Nov. 3, 1978.

Jack O. Johnson, Public Defender and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

RYDER, Judge.

William Harrison Wilson appeals the denial of his motion to suppress the evidence against him, and his resulting conviction and sentence contending that the warrantless search of his home was improper. We agree and reverse.

On December 13, 1977, Charles Kanehl, an undercover police officer attempting to purchase cocaine, met with one David Noble. Pursuant to Noble's instructions, Kanehl drove to a specific address in Clearwater. This was a duplex apartment house. When they arrived at the address, Kanehl remained in his automobile and watched Noble go to the door of the first apartment of the duplex (appellant's apartment). Noble entered and thereafter exited from the apartment, returned to Kanehl's vehicle and delivered to him a packet of cocaine. Kanehl then paid Noble $75.00 which Noble took back to the same apartment and again returned to Kanehl's car. They then departed. The substance purchased by Kanehl (and that substance later purchased), was turned over to a laboratory whose analysis proved the substance to be cocaine.

On December 15, 1977 around 1:40 p. m., Kanehl, accompanied by a Detective Logan of the Pinellas Sheriff's Office, met Noble again who rode with them to the same Clearwater address. On this occasion, Noble followed the same routine. He exited Kanehl's vehicle, walked to the same apartment, entered and then returned to the car. This time, however, both Kanehl and Detective Logan bought the cocaine from Noble. After they had given Noble their money in exchange for the cocaine, Noble, as before, carried the money into the apartment and returned to the undercover police vehicle. The parties then drove from the area.

It is interesting to note Kanehl's testimony following the account of the second "buy". In response to a question relating to the officer's ability to enter appellant's apartment, Kanehl alluded to the fact that he and Noble had several brief conversations regarding Noble's source and that there was more cocaine to be purchased. There is also a telling statement that, "We couldn't get in that time", obviously indicating a desire on the part of the investigators to gain entrance into appellant's apartment. The reader should note that these conversations occurred sometime prior to Noble's eventual arrest and the search of appellant's apartment and they weaken the credibility of the State's eventual position that the police wanted to enter appellant's apartment only after Noble's arrest to prohibit possible destruction of the contraband therein.

Still later, on December 16, 1977 the scenario is repeated, but with major alterations. Kanehl was again accompanied by Detective Logan. This time, however, Noble was met at another location, and he followed the two officers to appellant's apartment in another vehicle. Once reaching appellant's apartment, the two automobiles were parked and Noble walked over to Kanehl's car. He told Kanehl he would have to check on the quantity his source had and, according to Kanehl, inquired as to whether Kanehl was still interested in purchasing some LSD. Obviously, this was a reference to some earlier conversation preceding the third meeting.

Having been assured by Kanehl that he and Logan had continued interest in the obtaining of LSD, Noble, according to Kanehl's testimony, "went in the same apartment, the same door, and came back out a few minutes later, got in the back of my car as he had done in the past, and he retrieved three packets of cocaine and a pack of 100 LSD tablets which he sold to myself and Detective Logan, and he was getting out after we had paid him to go back into the apartment, as he had done in the past, and we arrested him."

Unbeknownst to Noble, on this occasion, Kanehl was "wired for sound" he was equipped with a body microphone which transmitted sound to a remote police receiver. Also, unknown to Noble, were the existence of a number of backup units in the immediate vicinity. These were marked and unmarked police vehicles which carried, at least, a Sergeant Grass of the Pinellas County Sheriff's Office, a Captain Day, a Sergeant Peel and another unnamed officer of the Largo Police Department. Upon hearing of the arrest of Noble, all of these units immediately converged on Kanehl's vehicle and the scene of the arrest.

Obviously, the police had exercised more than a modicum of pre-planning to arrange for the "body mike", and for the presence of the backup units, not to mention coordinating the transaction with another, independent, police organization.

Thereafter, Detective Sergeant Grass went to appellant's apartment, knocked on his door and informed appellant that the police had reason to believe there were drugs on his premises and that they were going to search his apartment at that juncture, despite the fact they, admittedly, did not have a search warrant for such action. Appellant never consented to a search.

The officers then entered the apartment, searched and found LSD, a controlled substance. Grass testified that he entered the apartment because he felt the contraband inside would have been destroyed since Noble did not return to appellant's residence and that the arrest of Noble (and another individual parked outside appellant's apartment) occurred in an area which was observable from appellant's apartment.

After a hearing on appellant's motion to suppress, the trial court ruled that the search was proper since the arrest of Noble could have been and probably was viewed by the occupants of appellant's residence; that it would have been an unreasonable burden on the police to leave the premises and to secure a search warrant.

One must note, however, that this third meeting with Noble at the appellant's apartment began around 10:00 p. m. At least six hours prior to this meeting, however, the police had in their hands a laboratory report confirming the fact that the previously purchased drugs were cocaine. It was Sergeant Grass who testified before the trial judge that after the third drug buy went down, after Noble's arrest, and after all of the backup police units and additional policemen had swooped down upon the scene (a display of police force that would elevate the paranoia of even the most innocent of citizens), the police did not have time to obtain a search warrant for appellant's home as the hour was late and by the time a judge was located, they feared appellant would have destroyed the contraband the police suspected was in his home. This reasoning does not wash. What happened during the six hour period between receiving proof the police had been sold cocaine out of appellant's apartment on two previous occasions and the time of the third "buy"? The police had time to set up the third "buy". They had time to obtain and install a body mike on Kanehl. They had time to arrange for Logan to accompany Kanehl to meet Noble at a different location than as before. They had time to confer, coordinate and arrange with a sister law enforcement agency a number of backup units. But, they say, not enough time to obtain a search warrant from a judge. Our past service as a trial judge is not so remote as to dim the memory of many instances wherein we were presented with search warrants for our perusal at varying times of the day and night. Surely, during that six hour period between proof of the identity of the drugs and the meeting time that the police at their leisure also arranged, the police could have arranged a conference with one of the twenty-five circuit judges of the Sixth Judicial Circuit or one of the ten Pinellas County judges who would have quickly responded and reviewed their request for the issuance of a search warrant.

Beyond memory, but not beyond written record, was birthed the concept that one has a greater expectation of privacy in one's own home than elsewhere.

During the latter part of the 16th Century and early 17th Century, Sir Edward Coke (1552-1634) was in the service of Queen Elizabeth as Attorney General. For her he zealously prosecuted, among others, Essex, Southampton and Raleigh. However, when he became Lord Chief Justice of England, he experienced a change in philosophy. Through his decisions, he began defining the rights of the...