No. 82-1055 | Fla. Dist. Ct. App. | Apr 13, 1983
Lead Opinion
The defendant was charged with two separate counts of possession of cannabis in excess of twenty grams. The State appeals the order granting defendant’s motion to suppress physical evidence, the court stating in its order that it found the facts and circumstances within the officer’s knowledge to be an insufficient basis to believe that an offense had been committed. We reverse.
During a stake-out, Officer Dykema saw defendant talking with a codefendant in front of the Green Seas Hotel. It was the first time Dykema had ever seen the code-fendant, although Officer Wagoner, who was with Dykema, knew the codefendant from prior investigations to be both a purchaser and a seller of narcotics. Officer Wagoner also testified to seeing the code-fendant enter a bar known for drug transactions, leave, and then go to the Green Seas Hotel, where he left his vehicle and began conversing with defendant. Both officers saw defendant walk around the north side of the hotel building and return a few minutes later carrying a brown grocery or shopping bag, which he then handed to the codefendant who opened the bag, looked into it, stuck his head in the bag as if to smell it, then placed it in his automobile.
After the codefendant placed the bag in his car behind the driver’s seat, the officers saw him hand defendant an undetermined amount of money. With the codefendant driving, the two suspects then drove away. Three blocks later the officers stopped the suspects’ car. Officer Wagoner pulled the bag out of the car and saw a leafy substance inside that appeared to be marijuana. Defendant was arrested after Officer Wagoner had observed the contents of the bag. Officer Dykema repeatedly testified that they immediately believed a narcotic transaction, probably involving marijuana, had taken place because what they saw comported with narcotics transactions that they had seen before. Both officers testified as to their extensive experience in narcotics investigations and arrests.
This case is not unlike Skelton v. State, 349 So. 2d 193" court="Fla. Dist. Ct. App." date_filed="1977-07-12" href="https://app.midpage.ai/document/skelton-v-state-1606379?utm_source=webapp" opinion_id="1606379">349 So.2d 193 (Fla. 3d DCA 1977), where the arresting officer was highly experienced and often involved in drug related arrests. He was well acquainted with the neighborhood in which the arrest took place. He testified that he saw a young man walk up to the defendant, and hand him a stack of small brown packets, each being 2" by 3" in size. The defendant placed the packets into his jacket. The officer exited his patrol car, retrieved the packets and arrested the defendant. The officer testified that cannabis is often distributed in packets similar to those he had taken from the defendant and he believed a drug sale was in process. The court found
Reversed and remanded for further proceedings.
Dissenting Opinion
dissenting:
In my view the police officer who stopped and searched appellee as much as admitted the lack of probable cause to search when he responded as follows to a query by the prosecutor as to why he did not arrest ap-pellee and his companion: “What were we going to place them under arrest for?” Subsequently, the officer explained that before arresting appellee: “We had to investigate was it, in fact, a narcotics transaction.” In essence the officer conceded that it wasn’t until after the search that he possessed probable cause to arrest. The trial court heard this testimony live and, based upon a consideration of all the evidence, including the credibility of the police officer’s testimony, determined that the officers did not have probable cause to search, which is, of course, the same probable cause that is required to arrest. We cannot substitute our judgment for that of the trial court when such judgment may be predicated in part upon credibility. In fact, the prosecutor stated his position to the trial court in these terms:
MR. COHEN: The State’s position is that the Court can determine whether or not that you feel that these officers are telling the truth, whether or not there is discrepancy in their story. Both testified what the facts are; what the facts led them to believe. It’s their belief. They clearly had a real belief as to what transpired.
In addition, the majority, by predicating its decision upon the police officer’s vague and unsubstantiated assertions that he knew ap-pellee’s companion “to be both a purchaser and seller of narcotics” who entered “a bar known for drug transactions” is permitting rumor and suspicion to be substituted for probable cause.
I would affirm the trial court. If the officer lacked probable cause for arrest, he lacked probable cause to search. We would all like to see persons prosecuted whom we now know, on hindsight, possessed illegal drugs. Hindsight, however, is no substitute for the constitutionally mandated probable cause.