Leisure v. StateLeisure v. State
In this criminal appeal we resume jurisdiction to determine whether appellant‘s judgment and sentence for burglary and grand theft should be reversed because of an alleged error committed by the trial court in denying appellant‘s motion to suppress certain tangible evidence seized by the police. When we first considered this appeal, we rejected the State‘s contention that appellant had waived his right to appeal the suppression issue and relinquished jurisdiction to the trial court with directions to hold a hearing to determine whether the ruling on the motion to suppress was dispositive of the case and whether appellant had a reasonable expectation of privacy in the area searched. On remand, the trial court found, based on a stipulation entered into between appellant and the State, that the ruling on the motion to suppress was dispositive of the case and that appellant had a reasonable expectation of privacy in the area searched. With these findings now before us, we address the merits of the suppression issue.
The relevant facts are as follows. Appellant was arrested along with Anthony James and charged with committing a burglary which had occurred just moments before. Appellant stood silent, admitting no involvement in the burglary. James, on the other hand, confessed to his involvement in the burglary and also provided information implicating appellant in another burglary.
On appeal, appellant contends that the police lacked probable cause to search his apartment because the information provided by James, which was the basis for the search, failed to meet the two-pronged Aguilar-Spinelli test of reliability. Appellant further asserts that even if probable cause existed, the search was still unlawful because the facts did not present exigent circumstances justifying the warrantless seizure.
Addressing first the probable cause issue, we note that the United States Supreme Court in Illinois v. Gates, ___ U.S. ___, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), abandoned the two-pronged Aguilar-Spinelli test for determining the existence of probable cause based on an informant‘s tip. In its stead, the Supreme Court adopted a totality of the circumstances analysis. In reaching this decision, the court noted that:
The “two-pronged test” directs analysis into two largely independent channels — the informant‘s “veracity” or “reliability” and his “basis of knowledge.” [footnotes omitted] There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. [citations omitted]
Id. at ___, 103 S.Ct. at 2329.
In the present case, the seizure by the police of appellant‘s apartment was based on the firsthand observations of James, the informant. Moreover, James’ information was detailed, specifying the kind of evidence that was inside appellant‘s apartment and where inside the apartment the evidence was located. Although James’ veracity and reliability as an informant may not have been sufficiently established to meet the rigid two-pronged test established in Aguilar and Spinelli [Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)] we believe that under the totality of the circumstances, the police had probable cause to believe evidence of criminal activity could be found inside appellant‘s apartment. As the Supreme Court noted in Gates, supra, “even if we entertain some doubt as to an informant‘s motives, his explicit detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” Id. at ___, 103 S.Ct. at 2329-30.
We now turn to the question of whether the police were excused from obtaining a warrant before seizing appellant‘s apartment based on the existence of exigent circumstances. In Ferrara v. State, 319 So.2d 629 (Fla. 1st DCA 1975), this court was presented with the question of whether the police were justified in conducting a search without a warrant following the arrest of the defendant on a drug charge, where the police had information indicating that more drugs could be found inside of his apartment. The State attempted
There is no evidence that anyone other than Ferrara had access to Ferrara‘s apartment, no evidence that his companions in the car ... knew of or had the slightest inclination to destroy or secrete the cocaine, and no evidence that any justifiable fears the police may have entertained could not have been allayed by surveilling the apartment while other officers obtained a search warrant.
Id. at 630. The facts of this case are diametrically opposite to the facts in Ferrara. Here, the fears of the police that the evidence might be destroyed before a warrant could be obtained were not based on groundless speculation. Appellant‘s accomplice, James, advised the police that appellant and his girlfriend had a prearranged plan to destroy the evidence held in his apartment if appellant did not immediately return after completing his criminal activity. Moreover, the police could not have allayed their fears by surveilling appellant‘s apartment because appellant‘s girlfriend was already inside the apartment and could have easily flushed some of the evidence (the jewelry and gold pieces) down the toilet and destroyed the other evidence by damaging it beyond recognition. Based on these facts, we believe that the warrantless seizure of appellant‘s apartment was justified pursuant to the exigent circumstance exception to the warrant requirement.
AFFIRMED.
WENTWORTH and JOANOS, JJ., concur.