Fortney v. State

510 So. 2d 967 | Fla. Dist. Ct. App. | 1987

Lead Opinion

SHARP, Judge.

Fortney pled no contest to possession of a controlled substance, i.e., cocaine, expressly reserving his right to appeal the trial court’s denial of his motion to suppress.¹ We affirm because the claimed unlawful search of Fortney’s person (a deputy told him to unclench his fist, thereby disclosing the presence of cocaine) was undertaken under circumstances which would have given the deputy probable cause to arrest, and therefore was incidental to a lawful arrest.

The record established that at approximately 3:30 in the morning the manager of the “House of Babes” nightclub called the sheriff's department to complain that someone at the club was attempting to distribute cocaine to two of his employees. Officer Debra Jacobs and another officer were dispatched to investigate the complaint. Upon their arrival at the nightclub they were met by the manager outside, and he repeated his story. The manager then took the officers into the club and pointed out Fortney as the person prompting his call.

Accompanied by the manager and the other deputy, Jacobs approached Fortney and asked him to step outside. While walking outside, Jacobs observed Fortney “fidgeting with his hands around his waistline, belt [and] pocket area.” Outside, Fort-ney’s hand remained clenched. Jacobs requested Fortney to unclench his fist. Fort-ney did so, revealing a glassine bag containing cocaine. At this point, Fortney was formally arrested.

It is undisputed by the parties that a detention and search took place. The trial court denied the motion to suppress on the basis that Jacobs’ request of Fortney to open his hand was a valid exercise of Florida's Stop and Frisk Law, section 901.151, Florida Statutes (1985). We disagree since testimony clearly shows that Jacobs did not believe Fortney’s fist contained a weapon, nor did she fear for her safety because of the presence of the other deputy and the manager.

However, we do think, under the facts here, that Officer Jacobs had probable cause to arrest Fortney before she requested him to open his fist.² The manager’s actions and statements³ that Fortney was trying to distribute cocaine to two of his employees, combined with Jacobs’ observations of Fortney’s attempt to conceal something in his hand, established a reasonable basis to believe that Fortney had committed or was committing a felony or misdemeanor in the presence of the officers. Jones v. State, 498 So.2d 1359 (Fla. 2d DCA 1986); State v. Gennari, 451 So.2d 1063 (Fla. 5th DCA 1984); § 901.15, Fla. Stat. (1985). The timing of the discovery of the cocaine — before making the actual arrest — is not, under these circumstances, a defect requiring suppression of the evidence.⁴ Therefore the conviction is

AFFIRMED.

UPCHURCH, C.J., concurs. DAUKSCH, J„ dissents with opinion.

1 . State v. Carr, 438 So.2d 826 (Fla.1983).

2 . It is our duty to affirm a trial court’s decision, though erroneous, if there is some reason or basis in the record to support it. Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984), In re Yohn’s Estate, 238 So.2d 290 (FIa.1970).

3 . The reliability of the manager's statements was supported by his actions of 1) reporting the complaint and 2) repeating his story when he met the officers at the club and 3) pointing out Fortney, and then accompanying the officers. That he did not actually see the cocaine himself is irrelevant.

4 .A valid search may precede an arrest where probable cause exists before the search is made. See State v. King, 405 So.2d 770 (Fla. 5th DCA 1981) and cases cited therein.

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Dissenting Opinion

DAUKSCH, Judge,

dissenting.

I respectfully dissent.

I have never heard of and dispute the theory that a search is lawful if it “was undertaken under circumstances which would have given the deputy probable cause to arrest and therefore was incidental to a lawful arrest.” Even if there is such a theory the facts here do not indicate probable cause to arrest. The only witness to testify at the motion hearing was a female deputy sheriff. She testified that after she was dispatched to the nightclub, she was told by the manager that “there was a subject inside who was attempting to distribute cocaine to two of his girls.” This hearsay upon hearsay statement that appellant was attempting to distribute cocaine coupled with the appellant’s closed fist evidenced nothing more than a mere suspicion that appellant was in present possession of cocaine. Also critically missing from this case is the manager’s testimony that he or anyone else actually saw the cocaine.

Under the foregoing facts, the deputy had every right to inquire or effect a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Standing alone, however, the facts giving rise to the suspicion that appellant was “attempting to distribute cocaine” do not rise to the level of probable cause required under the Fourth Amendment to effect a search and seizure. The deputy did not have the lawful authority to search until she had probable cause to believe appellant was committing or had committed a crime or was armed and dangerous.

The majority cites Jones v. State, 498 So.2d 1359 (Fla. 2d DCA 1986) and State v. Gennari, 451 So.2d 1063 (Fla. 5th DCA 1984), neither of which support its position. In Jones, the officer relied upon the information of a known reliable informant who had obviously seen and described the location of the cocaine on the appellant’s person. As previously discussed, that critical observation and information is missing in the case presently under review.

Likewise, in Gennari, also curiously relied upon by the majority as support for this warrantless search, the informant actually saw the marijuana. As in Jones, the fact that the informant actually saw the illegal drug provided the probable cause necessary to effect a search and seizure. In the present case, however, the statements of an unknown manager that two unidentified girls told him that appellant had attempted to sell them cocaine is an insufficient basis upon which to establish probable cause.

I would reverse.