State v. McCormackState v. McCormack
The state appeals an order granting a motion to suppress cocaine obtained during a search incident to the arrest of Oliver McCormack for the offense of trespass. We reverse.
At the time of the arrest McCormack was on the property of an apartment complex which contained twelve apartment buildings. Each building bore a sign prohibiting trespassing or loitering. After complaints by the tenants about the increase in crimes committed in the neighborhood, the owner of the property gave written authorization and the manager gave oral authorization for the police to enter the premises and issue warnings to those persons who were on the premises without authorization. An individual was unauthorized if he was neither a resident, relative of a resident nor guest of a resident.
A week prior to the arrest, the defendant was observed on the property by a police officer and questioned as to his presence there. According to the arresting officer, the defendant did not reside at the complex and upon being questioned the defendant responded that he was either “hanging out” or “passing through.” The officer warned the defendant to leave and advised him that if he returned without authorization he would be arrested. A week later, the officer again observed the defendant on the premises. The officer testified that upon asking the defendant why he was there, the defendant gave essentially the same response as the week earlier. The defendant was then arrested and during the search incident thereto, the officer found cocaine. Asserting that the arrest was unlawful, the defendant moved to suppress the cocaine discovered during the search. The motion was granted, and this appeal followed.
The determinative issue on appeal is whether the police officer had probable cause to arrest the defendant for a violation of
When an arrest is made without a warrant, it must be based on probable cause that an offense has been committed. D‘Agostino v. State, 310 So.2d 12, 15 (Fla. 1975). Probable cause exists where the facts and circumstances known to the police officer at the time of the arrest are sufficient to warrant belief by a prudent person that an offense has been committed. Benefield v. State, 160 So.2d 706, 708 (Fla. 1964); Cross v. State, 432 So.2d 780, 782 (Fla. 3d DCA 1983). Those facts, however, need not meet the standard of proof required to convict. State v. Outten, 206 So.2d 392, 397 (Fla. 1968); State v. Varnedoe, 443 So.2d 201, 202 (Fla. 3d DCA 1983). Thus, “an arresting officer must have a substantial reason at the time of a warrantless misdemeanor arrest to believe from his observation and evidence at the point of arrest that the person was then and there committing a misdemeanor in his presence.” State v. Yunker, 402 So.2d 591, 593 (Fla. 5th DCA 1981).
In the present case, the police officer was authorized by the owner and manager to issue warnings to unauthorized individuals.
At the hearing on the motion to suppress, a witness testified that she had invited the defendant to visit with her at her apartment located within the complex to celebrate his birthday. The state concedes, and we agree, that if this testimony were accepted by the trier of fact, it clearly showed that the defendant was not in fact guilty of trespass after warning pursuant to
For these reasons, the order granting the motion to suppress is reversed with directions to deny the motion.