HENRY LEWIS PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the officers lacked probable cause to arrest the appellant for public intoxication, rendering the subsequent search unlawful and the evidence inadmissible.
[1] A search incident to an arrest is unlawful if the arrest itself was made without probable cause.
[2] Probable cause to arrest for a violation of a city ordinance, treated as a misdemeanor, must be based on the officers' own observations of illegal activity.
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Join FLexlaw to unlock all legal intelligenceAppellant was arrested for public intoxication based on officers observing him sitting with a container. The officers did not witness him consuming al…
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HALL, Judge.
The appellant, Henry Peterson, challenges his conviction for possession of cocaine. Though we find no merit in three of the issues he raises on this appeal, we find his motion to suppress the evidence against him should have been granted.
In April 1989, Peterson was arrested for public consumption of alcohol in violation of a Haines City ordinance. A search incident to that arrest revealed Peterson was also in possession of quantities of cocaine and cannabis in violation of section 893.13, Florida Statutes (1989), as well as certain drug paraphernalia in violation of section 893.147, Florida Statutes (1989). Though Peterson was charged by information on all counts, he was tried and convicted by jury only on the cocaine charge.
Peterson contends the officers involved lacked probable cause to arrest him, claiming his arrest was illegal and that all evidence seized as a result should have been found to be inasmissible at trial. We agree.
Since violation of a city ordinance is treated as a misdemeanor, only the officers’ own observations will be considered in determining probable cause to arrest. § 901.15(1), Fla.Stat. (1989); Heller v. City of Ocala, 564 So. 2d 630 (Fla. 5th DCA 1990); Towne v. State, 495 So. 2d 895 (Fla. 1st DCA 1986).
In the instant case, the record shows the officers observed Peterson sitting on a bench outside a bar with a plastic container beside him. The officers testified they neither saw Peterson holding the cup, nor otherwise consuming its contents, at the time they approached him. Since the officers did not observe Peterson engaging in illegal activity, his arrest and the subsequent search which ensued were unlawful. Consequently, the physical evidence derived from that search should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Accordingly, we reverse the trial court’s order denying Peterson’s motion to suppress and vacate his conviction and sentence. We therefore remand the cause with directions consistent herewith.
FRANK, A.C.J., and PATTERSON, J., concur.
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Citator
Cited By
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Cornell Horsley v. State, 734 So. 2d 525 (Fla. 2d DCA 1999)…strued the “presence of the officer” language, requiring that the arresting officer actually see or otherwise detect by his senses that the person has violated the ordinance. See Malone v. Howell, 140 Fla. 693, 192 So. 224 (1939); Peterson v. State, 578 So. 2d 749 (Fla. 2d DCA 1991); Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997). In this case, however, the State has urged that the observations of Sergeant Lightfield may be imputed to Officer Her-ron under the “fellow officer” rule, which “allows an ar…
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Nesmith v. State, 608 So. 2d 96 (Fla. 2d DCA 1992)…5), reserving the right to appeal the denial of her motion to suppress. A law enforcement officer may only effect a warrantless arrest for a misdemean- or when it has been committed in his presence. § 901.15(1), Fla.Stat. (1985); Peterson v. State, 578 So. 2d 749 (Fla. 2d DCA 1991). Although the female officer testified that she was summoned to assist in the arrest, there was no testimony from any officer who actually witnessed the violation. In the absence of such evidence, the state failed to prove that t…
Authorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Towne v. State, 495 So. 2d 895 (Fla. 1st DCA 1986)
- M.G. v. State, 564 So. 2d 630 (Fla. 5th DCA 1990)