DAVID M. DACUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Dacus challenges his conviction for felony marijuana possession and possession of narcotics paraphernalia, arguing the evidence was obtained through an illegal warrantless search and that his concurrent sentences were improper. The Florida appellate court affirmed, finding the evidence was lawfully observed under the plain view doctrine and the concurrent sentences were appropriate.
The court held that the observation of marijuana through the open door constituted a lawful plain view observation rather than an illegal search, and that the marijuana and pipes were not facets of the same transaction, making concurrent sentencing appropriate.
[1] Evidence observed in plain view by law enforcement officers, after lawfully being in a position to observe, is not subject to suppression as the product of an illegal sea…
[2] Law enforcement officers may approach a residence and request consent to search based upon reasonable suspicion derived from prior observations and sensory evidence, such…
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Join FLexlaw to unlock all legal intelligence“The officers had reasonable suspicion to approach appellant's trailer and ask for consent to search based upon their prior observation of frequent visitors to the trailer and the smell of marijuana smoke emanating from the trailer on those occasions.”
Establishes the legal basis for the officers' initial approach and observation
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Join FLexlaw to unlock all legal intelligenceOfficers knocked on Dacus's trailer door, identified themselves, and Dacus voluntarily opened it. Based on prior observations of frequent visitors and…
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BOARDMAN, Acting Chief Judge.
On March 1, 1974, two informations were filed against appellant. The first information charged appellant with felony possession of marijuana and the second charged appellant with possession of narcotics paraphernalia, to wit: two pipes. On April 22, 1974, appellant filed a motion to suppress which was subsequently heard on May 1, 1974. After hearing, the trial judge found that the officers had knocked on the door; identified themselves, and appellant voluntarily opened the door; and, either the arresting officers entered appellant’s abode prior to seeing the marijuana on the bed while standing at the rear door talking to appellant. At that point appellant was arrested. Accordingly, the motion to suppress \vas denied. Thereafter, appellant withdrew his not guilty plea and entered a plea of nolo contendere, preserving the right to appeal the issues raised in the motion to suppress. On August 12, 1974, appellant was adjudged guilty and sentenced to two concurrent terms of imprisonment for not less than six months nor more than eighteen months with credit for time served. Appellant brings this timely appeal.
Appellant has raised two points on this appeal. The first point is whether the officers conducted a warrantless search. The trial court found that the evidence sought to be suppressed was seized subsequent to its observance in plain view. After a reading of the complete record, we agree. Appellant contends that the officers had three days in which to secure a search warrant. Even if so, we find that to be of little significance under the factual circumstances of this instant case.
The officers had reasonable suspicion to approach appellant’s trailer and ask for consent to search based upon their prior observation of frequent visitors to the trailer and the smell of marijuana smoke emanating from the trailer on those occasions. The officers had a legal right to be there and their actual observance through an open door of marijuana on appellant’s bed does not constitute an illegal search under the plain view doctrine. See rationale of State v. Perez, Fla.1973, 277 So. 2d 778. Appellant’s second point attacks the two concurrent sentences and he contends the alleged offenses arose out of the same transaction. From the record before us we are unable to ascertain that the marijuana and the paraphernalia, i. e., the pipes, are a facet of the same transaction. For this reason, we find appellant’s contention is not well placed.
Accordingly, the judgments and sentences are
Affirmed.'
GRIMES and SCHEB, JJ., concur.
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Trianon Park Condo. Ass'n, Inc. v. City OF Hialeah, 468 So. 2d 912 (Fla. 1985)…ation commission); Ellmer v. City of St. Petersburg, 378 So. 2d 825 (Fla. 2d DCA 1979) (failure to provide adequate police protection); Weston v. State, 373 So. 2d 701 (Fla. 1st DCA 1979) (state attorney action); and Shoner v. Concord Florida, Inc., 307 So. 2d 505 (Fla. 3d DCA), cert. denied, 317 So. 2d 767 (Fla.1975) (enforcement of city ordinance). The lack of a common law duty for exercising a discretionary police power function must, however, be distinguished from existing common law duties of care appli…
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Dep't of Health & Rehabilitative Servs. v. Yamuni, 529 So. 2d 258 (Fla. 1988)…probation commission); Ellmer v. City of St. Petersburg, 378 So. 2d 825 (Fla. 2d DCA 1979) (failure to provide adequate police protection); Weston v. State, 373 So. 2d 701 (Fla. 1st DCA 1979) (state attorney action); Shoner v. Concord Florida, Inc., 307 So. 2d 505 (Fla. 3d DCA 1975) (enforcement of city ordinance). I would agree, as we expressed in Everton v. Willard, that if a special relationship exists between an individual and a governmental entity, there could be a duty of care owed to an individual; e.…
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State v. Adams, 378 So. 2d 72 (Fla. 3d DCA 1979)…Affirmed. . In this court, the state, citing Menendez v. State, 368 So. 2d 1278 (Fla.1979); State v. Ashby, 245 So. 2d 225 (Fla.1971); Winchell v. State, 362 So. 2d 992 (Fla.3d DCA 1978), cert. denied, 370 So. 2d 462 (Fla.1979); and Dacus v. State, 307 So. 2d 505 (Fla.2d DCA 1975); argues that the search and seizure should be upheld on the ground that the marijuana was in “plain sight” when the defendants opened their door to the officers. This contention was not presented to the trial court at the hearing…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Perez, 277 So. 2d 778 (Fla. 1973)