Wright v. State, AI-362

• Decision Date: 05 August 1982
• Docket Number: No. AI-362,AI-362
• Citation: 418 So.2d 1087
• Parties: Russell Leon WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1087

418 So.2d 1087

Russell Leon WRIGHT, Appellant, v. STATE of Florida, Appellee.

No. AI-362.

District Court of Appeal of Florida,

First District.

Aug. 5, 1982.

Rehearing Denied Sept. 20, 1982.

Michael E. Allen, Public Defender and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.

ERVIN, Judge.

In affirming the denial of appellant's motion to suppress evidence of a crime, we follow federal precedent, as we believe that the facts here involved require the application of the same test for the existence of probable cause under the Florida Constitution as is the test under the United States Constitution.

On the afternoon of May 5, 1981, Duval County Sheriff's Office Detective Harold Lee received an anonymous tip that a tall, dark-skinned black male was selling heroin and/or cocaine on the corner of Fourth and Davis streets in Jacksonville. Lee, a vice squad detective, was well acquainted with this area of town, since he had previously made a number of arrests for drugs in the neighborhood. Dressed in plain clothes and driving an unmarked car, he went to the intersection and placed it under surveillance.

The tipster's broad, non-descript explanation of the drug pusher's physical features was instantly satisfied by a number of individuals on the corner, but Lee's attention was immediately drawn to appellant, who, admittedly, did not fit the description. The appellant was surveilled for ten to fifteen minutes during which time he repeated the following suspicious pantomime no less than four times: Upon an individual's approach to the appellant, the latter would turn his back from the intersection and toward a building. Turning back around toward the intersection, appellant would engage in some form of hand contact, as if to pass something, although Lee candidly stated that he was unable to ascertain whether anything was passed. After a brief encounter, the approaching individual would then depart.

The detective's past experience with drug surveillance suggested to him that drug sales were being consummated. This was confirmed in his mind when he observed a known drug addict engage in this process with appellant. Lee decided to contact appellant. He summoned a marked patrol unit for assistance, rode closer to the intersection, and, as he got out of the car, observed appellant walking away. Simultaneously, Lee shouted, ordering appellant to stop, but the latter continued his withdrawal. Lee repeated his demand, identifying himself as the "police." When he heard Lee's voice after the second summons, appellant stopped and turned. Since there were a number of people on the corner, appellant later testified that he was not really sure who was being hailed.

At that point, Detective Lee grabbed at an object concealed in the crotch area of appellant's trousers, and extracted from it a container similar to the type customarily used for carrying film. Lee opened its top and spied within a number of small wrapped tin foil packets. Based upon his experience in the narcotics field, he was sure that the packets contained heroin. Appellant was immediately arrested. Upon returning to his office, Lee opened the packets and found small quantities of a substance later determined in fact to be heroin.

On appeal, the initial stop and the opening of the film canister are contested. Appellant expressly concedes that the effort at extricating what Detective Lee believed to be a weapon was permissible, assuming the initial stop to be proper. See Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982); Phillips v. State, 360 So.2d 1310 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1372 (Fla.1979).

With regard to the initial stop, we note that there are three-tiers of police-citizen encounters, including: (1) "communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment," ¹ (2) "brief 'seizures' that must be supported by reasonable suspicion," and (3) "full-scale arrests that must be supported by probable cause." United States v. Berry, 670 F.2d 583, 591 (5th Cir. 1982). ² Arguably the facts before us suggest that the activity involved in hailing appellant constituted no more than an activity falling within the gamut of the first-tier as noted in Berry. This is an issue we need not confront because in light of the officer's training and experience, the facts clearly demonstrate at the minimum a reasonable suspicion to stop appellant, which is all that is required. Codie v. State, 406 So.2d 117, 119 (Fla. 2d DCA 1981).

The appellant has suggested that a founded or reasonable suspicion to stop can neither be based on the tipster's anonymous call to Detective Lee, nor on the street surveillance that Lee conducted. Although the information provided in the tip fails to carry the indicia of reliability or specificity required by State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), affm'd., 387 So.2d 963 (Fla.1980), when it is combined with the observations made by Detective Lee, all the circumstances before him unquestionably furnished him a founded suspicion to stop. Those additional factors include time, location, physical appearance of the suspect, his behavior, and anything incongruous or unusual in the situation suggesting an illegal activity. Cf. Codie, supra, at 117; State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). More specifically, the consideration of Lee's heightened awareness stemming from the tip, his experience in drug arrests, the location of the intersection as being in an area wherein he has made a number of previous drug-related arrests, ³ the appellant's behavior and the unusual nature of Lee's observations, all demonstrate a reasonable suspicion to stop. While we have no difficulty in affirming the lower court's determination that the stop was reasonable, the question of whether we should approve the canister search is a far more complicated one to resolve.

Appellant argues that once the object had been removed and determined to be a film canister, it was then obvious to Officer Lee that the canister could not have contained a weapon; hence there was no further right to search. This is so, appellant states, because a full-scale search cannot be conducted incident to a brief seizure or stop without probable cause. Berry, supra, at 591.

Probable cause, of course, includes the knowledge of such facts and circumstances that rise to a level which would warrant an individual of reasonable caution in believing that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). "The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based." Shriner v. State, 386 So.2d 525, 528 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). Moreover, probable cause must be determined in light of an officer's practical experience. State v. Lynch, 378 So.2d 829 (Fla. 2d DCA 1979).

Our research has failed to uncover any decision from an appellate tribunal in Florida that is dispositive of the case at bar as to the presence or lack of probable cause or of an applicable exception to the warrant requirement. However, case law from the United States Court of Appeals for the Eleventh Circuit, within which Florida is located, persuades us that affirmance of the lower court's denial of appellant's motion to suppress is required.

In United States v. Elsoffer, 671 F.2d 1294 (11th Cir. 1982), the court was confronted with a case in which Elsoffer was detained by two federal agents after debarking from a plane at the Atlanta airport. Elsoffer had long hair and full beard and was dressed in faded dungarees. The officers observed also a bulge in the shape of a large sized softbound book in the front of his pants from waistline to crotch. After he was stopped, he gave the agents a false name, presented them with an airline ticket with a false name on it, and acted somewhat evasively and nervously. He carried little luggage but claimed to have been on a visit to a friend for three weeks, which the agent found "odd." Id. at 1295-1296.

The agent asked Elsoffer to consent to a search of his luggage in a nearby lounge which resulted in one of the agents searching Elsoffer and removing the bulge which consisted of a packet of cocaine. The Elsoffer court did not ground its decision upon the theory of consent, but instead determined that this warrantless search was permissible as a search incident to arrest and that Elsoffer was effectively under arrest at the time that he was taken to the lounge.

In deciding whether there was probable cause to arrest, the court stated:

The magistrate and the government listed several characteristics, most of which were entirely innocuous, that they thought would provide probable cause. We need not consider those factors. In this case the unusual size and shape of the bulge and, given its unusual size and shape, its abnormal position on Elsoffer's person alone provided not only reasonable suspicion but probable cause for Elsoffer's arrest.

Elsoffer, supra, at 1298-1299 (footnotes omitted) (e.s.). Consequently, probable cause was based only on the size, shape, and location of the bulge. Id. at 1299 n. 10. Given the overwhelming similarities of Elsoffer to the case at bar and the suspicious activities observed by Lee prior to the initial stop of appellant, we feel that Elsoffer furnishes strong precedent requiring our affirmance.

Three points are worth noting in this case. First, it was not the discovery of the heroin after the search of the canister which furnished probable cause to arrest. It was, as pointed out above, rather both the size, shape and position of the "baseball-like" bulge within appellant's trousers, as...