DONNA K. KINZER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1979-01-31
No. 77-1618
MOORE, J., concurs., LETTS, J., concurring specially with opinion.
366 So. 2d 874 Florida District Court of Appeal, Fourth District (1979) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this probation revocation appeal, Donna Kinzer challenges the admission of marijuana found during an unlawful search of her vehicle. The court held that while the initial stop and search were improper, illegally obtained evidence is nonetheless admissible in administrative probation revocation proceedings because the exclusionary rule does not apply to such hearings.


Holding

While the initial stop by Officer Purcell lacked sufficient justification and the inventory search was pretextual and improper, the illegally obtained marijuana evidence was admissible in the probation revocation proceeding because the exclusionary rule does not apply to administrative probation revocation hearings. Evidence obtained through unlawful search and seizure is not admissible to support a new criminal charge but is admissible in probation revocation proceedings.


Headnotes

[1] An initial stop of an individual is unlawful if the officer's observations do not provide a well-founded suspicion that criminal activity is afoot.

[2] An inventory search of a vehicle is improper if it is pretextual and none of the suggested alternatives to protect the vehicle or its contents are followed.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“evidence obtained by the unlawful search and seizure of a probationer is not admissible to support a new criminal charge, but the evidence is admissible in a revocation of probation hearing”

Establishes the controlling rule that illegally obtained evidence may be admitted in probation revocation proceedings even though inadmissible in criminal trials

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Officer Purcell, on routine patrol in plain clothes, observed Kinzer exiting a parked vehicle in a field and walking with a black male toward an adjac…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
DOWNEY, Chief Judge.

DOWNEY, Chief Judge.

Appellant contends the trial court erred in admitting illegally obtained evidence during her probation revocation hearing.

It appears that Officer Purcell, while on routine patrol in plain clothes, observed appellant, a female, exit a vehicle which was parked in a field, saw a black male approach her, saw appellant assume a crouching position and saw appellant and the black male walk toward an adjacent street. On the basis of this observation Officer Purcell stopped and detained appellant and her male companion in order to run a routine identification and records check on them.

The records check on appellant revealed there was an outstanding warrant for her arrest for grand larceny. Appellant was thereupon arrested. Next, Purcell conducted an inventory search of appellant’s car, even though the car was not obstructing traffic, was locked and appellant testified the car belonged to her mother and she requested her mother be allowed to come and get the car. . This search produced a bag of marijuana located behind the driver’s seat.

Appellant was on probation and the above described occurrence gave rise to the probation revocation proceeding in question. Appellant moved to suppress the marijuana found in the car, but the court denied said motion and admitted it in evidence at the revocation hearing. On appeal appellant contends that the initial stop by Officer Purcell and the ensuing search of the car were improper and thus the marijuana should have been suppressed.

In our opinion Officer Purcell did not have a right to stop appellant because the observations recounted were not sufficient to give the officer a “well founded suspicion” that criminal activity was afoot.1 In addition, we believe the inventory search was pretextual. None of the alternatives suggested in Jenkins v. State, 319 So. 2d 91 (Fla. 4th DCA 1975), and Chuze v. State, 330 So. 2d 166 (Fla. 4th DCA 1976) were followed. There were no circumstances shown which necessitated the inventory search. Nonetheless, the evidence was admissible in the probation revocation proceeding, which is administrative in nature,2 because the exclusionary rule may not be invoked in probation proceedings.3

In Croteau v. State, 334 So. 2d 577 (Fla.1976), the Supreme Court of Florida made it quite clear that evidence obtained by the unlawful search and seizure of a probationer is not admissible to support a new criminal charge, but the evidence is admissible in a revocation of probation hearing. Accordingly, the illegally obtained evidence was admissible against appellant in the proceeding to revoke her probation. We have considered appellant’s other points and find them to be without merit.

The judgment appealed from is affirmed.

MOORE, J., concurs.

LETTS, J., concurring specially with opinion.

. That this is the appropriate test was recently reaffirmed in Mullins v. State, 366 So. 2d 1162 (Fla.1978).

. Croteau v. State, 334 So. 2d 577 (Fla.1976).

. Id.; accord, United States v. Hill, 447 F. 2d 817 (7th Cir. 1971); U. S. ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970); People v. Dowery, 20 Ill.App.3d 738, 312 N.E. 2d 682 (1st Dist.Ill.1974).

Concurrence
LETTS, Judge,

LETTS, Judge,

concurring specially:

In State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978), Justice Alderman set forth several criteria to be considered when the legality of an initial stop is considered. In the case at bar, we have a single female late at night, in a high crime neighborhood. The car was parked in a field which is not the normal place to park one. This late-night rendezvous was observed by police, it was of short duration, and included a crouching down of the defendant. Thereafter, the two separated and walked off in opposite directions. Any officer would have his or her suspicions aroused by such a chain of unusual circumstances and in my view it would be “founded.” Section 901.-151, Florida Statute (1977) does not require probable cause, it speaks of circumstances which reasonably indicate a present or impending violation of the criminal laws. It is my view, therefore, that the initial stop was lawful.

Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Gibson v. State, 368 So. 2d 667 (Fla. 3d DCA 1979)
    …h and seizures to have been justified we need not discuss whether evidence which has been unconstitutionally secured may nevertheless be employed in a probation revocation proceeding. See Croteau v. State, 334 So. 2d 577 (Fla.1976); Kinzer v. State, 366 So. 2d 874 (Fla. 4th DCA 1979). Nor need we decide whether, if it may be so employed, the conviction of the substantive offense would be properly reviewable at all since the sentence imposed was only concurrent to that involved in the case in which Gibson’s pr…
  • RAY v. State, 387 So. 2d 995 (Fla. 4th DCA 1980)
    …l court ruled that the exclusionary rule, by which illegally seized evidence is deemed inadmissible in criminal proceedings, did not apply to probation revocation proceedings. This court has previously reached the same conclusion in Kinzer v. State, 366 So. 2d 874 (Fla. 4th DCA 1979). At issue now is whether the subsequent decision rendered in Grubbs v. State, 373 So. 2d 905 (Fla.1979) requires a different result. The actual ruling in Croteau, supra, was that illegally seized evidence was not admissible in a…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw