ALVIN E. SMALLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida appellate court reversed Alvin Smalls' cocaine possession conviction, holding that the warrantless search of his pocket violated the Fourth Amendment because police lacked probable cause to search him individually, even though they had a valid warrant to search the premises for drug activity.
The search of Smalls' pocket was unlawful because police lacked probable cause or reasonable suspicion to search him individually. The valid search warrant authorizing searches of persons connected to criminal activity did not eliminate the requirement that police establish probable cause before searching any particular person, and Smalls' mere presence as a patron was insufficient to establish such connection.
[1] A search of a suspect's pocket is unlawful if the suspicion of contraband arises from rattling a matchbox, which constitutes an impermissible search, rather than from a l…
[2] The existence of a search warrant for a premises does not eliminate the necessity for officers to possess probable cause to search individuals found on the premises.
Previewing 2 of 5 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“The officer did not testify that before he removed the box he believed it contained cocaine. In view of the constitutional proscription against unlawful searches, we are constrained from speculating from the officer's testimony that he had had such a belief.”
Establishes that the court will not infer probable cause from ambiguous testimony and requires explicit evidence of probable cause before a search.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice executed a search warrant at a pool hall based on suspected drug transactions by the owner. Officers ordered approximately 20-35 patrons, inclu…
The full statement of facts, procedural history, and disposition for this case are member content.
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LEHAN, Acting Chief Judge.
We reverse defendant’s conviction for possession of cocaine and the denial of his motion to suppress cocaine found in a matchbox during a search of his pocket.
Defendant was a patron at a pool hall for which a warrant had been issued to search for cocaine and certain currency, the warrant having been based upon information that the pool hall owner had been involved in drug transactions from his residence which was attached to the pool hall. Upon executing the warrant, the officers ordered the twenty to thirty-five persons present, including defendant, onto the floor face down and handcuffed them, except for the owner and a woman sitting with the owner. Upon feeling a small matchbox in defendant’s pocket during a patdown of him and apparently rattling the box while it was in the pocket, an officer searched defendant, removed the box, and discovered crack cocaine in it. The officer testified,
again looking toward officer safety, I noticed in his pants pocket, left front pants pocket, there was a box, which I rattled. And based on my experience in narcotics, this indicated to me that it was the type that is — I have seen -used before; a small matchbox in this case. Removed it from his pocket and it contained three rocks of what tested positive as crack cocaine.
The officer did not testify that before he removed the box he believed it contained cocaine. In view of the constitutional proscription against unlawful searches, we are constrained from speculating from the officer’s testimony that he had had such a belief. In any event, even if his testimony were to be construed as indicating that before removing the box from defendant’s pocket he suspected that it contained cocaine, that suspicion would have arisen not from the patdown but from rattling the box which was an impermissible search. See Henderson v. State, 535 So. 2d 659 (Fla. 3d DCA 1988). Nor did the officer testify that he suspected defendant was armed. Thus, since the search was unlawful because it was not shown to have been with probable cause, we need not decide whether the initial detention of defendant and the pat-down were justified. See Piediscalzo v. State, 549 So. 2d 255 (Fla. 2d DCA 1989); Meeks v. State, 356 So. 2d 45 (Fla. 2d DCA), cert. denied 364 So. 2d 892 (1978).
We recognize that the search warrant authorized a search of persons present on the premises upon a reasonable belief by the officers that those persons were connected with illegal drug activity. However, the only showing of any connection between defendant and the pool hall owner’s suspected illegal activity came from the search of defendant which was unlawful as explained above. Otherwise the record shows no more than defendant’s presence on the premises as a patron. The existence of the warrant did not remove the necessity for a showing of probable cause to search defendant.
If the magistrate issues a search warrant which does not authorize search of all persons in the described premises, but rather all persons therein who are found to be connected with the criminal activity, then quite obviously the magistrate has left to the executing officers the problem of selecting the persons to be searched on the basis of the information they then may have. This is even more obviously the case when the warrant permits search of all persons participating in the criminal activity without regard to their location. As one court has put it, such-provisions “are no more than a directive to the police to perform duties that they should perform in the absence of any command in the warrant to that effect.” Thus, the inclusion of such a command in a search warrant does not invalidate it, but any personal searches which are subsequently made cannot be upheld on the ground that they were based upon a prior probable cause determination by a magistrate. Rather, the question is whether the police themselves at the time of the search had the requisite probable cause.
2 W. LaFave, Search and Seizure § 4.5(e) (1987). See also Julian v. State, 528 So. 2d 427 (Fla. 2d DCA 1988).
Reversed and remanded for the direction to enter a judgment of acquittal.
PARKER and PATTERSON, JJ., concur.
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Howard v. State, 645 So. 2d 156 (Fla. 4th DCA 1994)…t a weapon and when they did not otherwise have probable cause to believe that the object was illegal contraband. See Hamilton v. State, 612 So. 2d 716 (Fla. 2d DCA 1993). The shaking of the canister was an impermissible search. See Smalls v. State, 581 So. 2d 1003 (Fla. 2d DCA 1991). Even if the officers were justified in shaking the film canister, the additional information obtained by hearing the sound of “pebbles” did not supply probable cause. Interpreting the officers’ testimony in the light most favora…
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Harris v. State, 790 So. 2d 1246 (Fla. 5th DCA 2001)…vity, for the property described in [the] warrant....” In other words, Harris could be searched if there was some reasonable connection between him and the illegal activity that had allegedly occurred at the property being searched. Smalls v. State, 581 So. 2d 1003, 1004 (Fla. 2d DCA 1991). The record before us contains no such evidence. To the contrary, the evidence suggests nothing more than Harris just happened to be there when the search warrant was executed. The mere presence of a visitor on premises auth…
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Alfonzo Allen v. State, 585 So. 2d 366 (Fla. 2d DCA 1991)…he premises, the patdown was constitutionally permissible, see State v. Crawford, 565 So. 2d 859 (Fla. 2d DCA 1990), as was the temporary detention of defendant, see Wilson v. State, 547 So. 2d 215, 216 (Fla. 4th DCA 1989). Compare Smalls v. State, 581 So. 2d 1003 (Fla. 2d DCA 1991) (a search warrant authorizing the search on particular premises of persons reasonably believed to be connected with the suspected illegal activity on the basis of which the warrant was issued did not justify the search of persons…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meeks v. State, 356 So. 2d 45 (Fla. 2d DCA 1978)
- Julian v. State, 528 So. 2d 427 (Fla. 2d DCA 1988)
- McLEOD v. State, 549 So. 2d 255 (Fla. 5th DCA 1989)
- Henderson v. State, 535 So. 2d 659 (Fla. 3d DCA 1988)