THE STATE OF FLORIDA, APPELLANT,
v.
PHILIP ANTHONY ROKER, APPELLEE
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Florida appealed a trial court's suppression of evidence in a drug possession case. The appellate court reversed, holding that the officer's observation of drug containers in plain view inside a parked car, aided by a flashlight, constituted a lawful search and seizure without Fourth Amendment violation.
The court held that no unlawful search occurred. The items were in plain view, the officer was lawfully present, and the use of a flashlight to better examine articles already observed in the car was constitutionally permissible and analogous to using field glasses.
[1] Contraband observed in plain view by a police officer lawfully present is not subject to suppression as the fruit of an unlawful search.
[2] A police officer is entitled to approach a parked vehicle to investigate suspicious circumstances, such as occupants attempting to avoid observation.
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Join FLexlaw to unlock all legal intelligence“There was no search. The items seized were in plain view.”
Establishes the court's application of the plain view doctrine to reject the suppression claim.
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Join FLexlaw to unlock all legal intelligencePolice observed a car in an apartment complex parking lot at 3:00 A.M. with occupants crouched down. The officer approached and saw boxes and bottles …
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CARROLL, Judge.
The appellee, who was the defendant below, was charged by information in three counts with unlawful possession of named drugs, in a fourth count with possession of implements for drug usage and in a fifth count with possession of cannabis. The drugs and drug use implements had been seized by a police officer when said items were observed in the possession of the defendant. A motion to suppress the evidence was filed by the defendant, on the ground it had been obtained on an unlawful search. Following an evidentiary hearing thereon, the trial court granted the motion to suppress, and the state appealed. We hold the appeal is meritorious.
Testimony was given by the defendant and the arresting officer. The latter testified that while on routine automobile patrol he drove into the parking lot of a large apartment complex, at approximately 3:00 A.M.; that in one of the automobiles parked in the lot he observed two occupants, crouched down so that only their heads, from the nose up, were visible; that he stopped his car, got out and approached the occupied vehicle; that as he did so the two visible occupants sat up, as did a third, in the rear seat, who had not been visible; that there was some light from the street lights of an adjacent avenue, and that when he looked into the car he saw a number of boxes and bottles on the front seat; that using his flashlight he saw that said items were labeled narcotics; that he informed the men they were under arrest and ordered them out of the automobile. The contraband was taken into possession by the police, and subsequently the defendant was charged as above indicated-.
The testimony of the defendant did not present material conflicts. He stated the reason for presence of the men in the parking lot at that hour was that they had intended to obtain from an apartment in the building a key to a certain restaurant at which they were going to do some painting the following day. The officer testified the defendant did not give any explanation as to the presence of said parties in the lot. The defendant testified he had exited from the car before the officer approached it. Later he testified that he was in the process of alighting from the car as the officer approached. The officer testified the defendant and the others were in the car whqp he approached it, and that they remained therein until informed that they were under arrest and were ordered to get out.
The appellee argues the trial court correctly held, on those facts, that the contraband was obtained by the officer as a result of an unlawful search. We cannot agree. There was no search. The items seized were in plain view. State v. Ashby, Fla.1971, 245 So. 2d 225. The officer was present there in the lawful performance of his duties. When he observed persons occupying a parked automobile in the lot who appeared to be attempting to avoid observation, the officer was entitled to approach the car for the purpose of investigation. That seems obvious in the circumstances which prevailed. Likewise, when the officer saw a number of boxes and bottles on the seat he was entitled to take a better look to see what they were. Testimony of the officer that the items were similar to those displayed in drug stores was excluded as being irrelevant.
The use by the officer of a flashlight to give him better vision of the articles observed in the car was an act that was not constitutionally inhibited. Donar v. State, Fla.App.1970, 236 So. 2d 145; State v. Bass, Fla.App.1970, 240 So. 2d 90. In comparative circumstances the use of artificial light to increase visual ability has been approved, being likened to the use of field glasses. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; 79 C.J.S. Searches and Seizures § 31.
The order appealed from is reversed.
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Citator
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State v. Melendez, 392 So. 2d 587 (Fla. 4th DCA 1981)…le v. State, 305 So. 2d 794 (Fla. 4th DCA 1974) aff'd 330 So. 2d 10 (Fla.1976); Contraband; Smith v. State, 363 So. 2d 21 (Fla. 3d DCA 1978); State v. Flores, 305 So. 2d 292 (Fla. 2d DCA 1974) cert. denied, 315 So. 2d 189 (Fla.1975); State v. Roker, 290 So. 2d 525 (Fla. 3rd DCA 1974). . Coolidge v. New Hampshire, supra; State v. Hall, 376 So. 2d 276 (Fla. 3rd DCA 1979) cert. [*590] denied, 386 So. 2d 637 (Fla.1980); also see, United States v. Schire, 586 F. 2d 15, 17-18 (7th Cir. 1978), United States v. Diaz…
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Cobb v. State, 378 So. 2d 82 (Fla. 3d DCA 1979)…te, 348 So. 2d 641 (Fla.2d DCA 1977), our holding that the plain view doctrine applies amounts to a determination that no Fourth Amendment “search,” as such, occurred at all. Hornblower v. State, 351 So. 2d 716, 718, n. 1 (Fla.1977); State v. Roker, 290 So. 2d 525 (Fla.3d DCA 1974). . The opening of the briefcase may not be justified, and the state does not try to do so, on the ground that it was incident to Cobb’s arrest. See Haugland v. State, supra, at 374 So. 2d 1031.…
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State v. Garcia, 374 So. 2d 601 (Fla. 3d DCA 1979)…uires that an officer enter upon private property to make a general inquiry, such an entry is justifiable. United States v. Knight, 451 F. 2d 275, 278 (5th Cir. 1971) and Cf. State v. Belcher, 317 So. 2d 842, 846 (Fla. 2nd DCA 1975); State v. Roker, 290 So. 2d 525 (Fla. 3d DCA 1974). In the instant case, the original call over the police radio with regards to a large type van being backed up to a residence (the occupants being away) and the sighting from the street of such a van in close proximity to the give…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. LEE, 274 U.S. 559 (U.S. 1927)
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Cleveland John Donar v. State, 236 So. 2d 145 (Fla. 1st DCA 1970)
- State v. Quinton Bederead Bass, 240 So. 2d 90 (Fla. 1st DCA 1970)