EDMUND BROWN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edmund Brown was arrested for marijuana possession after a traffic stop and vehicle search. The court reversed his conviction, finding the officer lacked probable cause to search the vehicle and that Brown's consent was merely submission to authority rather than a valid waiver of constitutional rights.
The officer lacked probable cause to search the vehicle because suspicion of marijuana seeds and uncertainty about an odor were insufficient. Brown's consent was invalid because it constituted submission to apparent authority rather than a clear and convincing waiver of constitutional rights. The search was unlawful.
[1] Probable cause for a vehicle search must be based on facts known to exist, not mere suspicion.
[2] Observation of suspected contraband and a speculative odor are insufficient to establish probable cause for a general vehicle search.
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Join FLexlaw to unlock all legal intelligence“Probable cause cannot be based on mere suspicion, but must be based on facts known to exist.”
Establishes the legal standard that suspicion alone is insufficient for probable cause
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Join FLexlaw to unlock all legal intelligenceBrown was stopped for speeding. The officer observed what he suspected were cannabis seeds on the dashboard and detected an odor he thought might be m…
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PER CURIAM.
Appellant, stopped for speeding, was arrested for and charged with possession of marijuana after the traffic officer’s search of the vehicle driven by appellant disclosed a marijuana cigarette under the front seat and some packages of marijuana tightly wrapped in a towel on the back seat. Appellant entered a plea of nolo contendere expressly reserving the right to appeal denial of his motion to suppress.
The arresting officer described appellant, who accompanied the officer to the latter’s vehicle, as sober, neatly dressed, considerate, very cooperative, and completely coherent. Having issued the traffic citation, the officer returned to appellant’s vehicle to check the inspection sticker. Shining his flashlight on the inspection sticker, he observed, on the dashboard of the car, what he suspected were cannabis seeds. The officer then detected an odor coming from appellant’s person which the officer thought might be either the odor of burned or burning marijuana, or the odor of appellant’s perfume or aftershave lotion. Concluding on these facts that he had probable cause to search the vehicle, the officer, nonetheless, asked appellant to give permission. Initially appellant declined to give consent, but after the officer indicated that he intended to search the vehicle anyway and persuaded appellant that permission would make appellant’s record look better, appellant replied, “If you are going to do ' so anyway, go ahead.” Appellant, not then under arrest, was not in nor near the vehicle immediately prior to or during the search. While we have not recited all of the facts, none have been omitted which would strengthen the State’s case.
Probable cause cannot be based on mere suspicion, but must be based on facts known to exist. Kraemer v. State, 60 So. 2d 615 (Fla.1952); Bailey v. State, 295 So. 2d 133 (4th DCA Fla. 1974), rev’d on other grounds, 319 So. 2d 22 (Fla.1975). Here, the police officer’s observation of what he only suspected to be marijuana seeds, coupled with nothing more than a suspicion that the odor emanating from appellant was that of burned or burning marijuana, was insufficient to give the officer probable cause to believe that the vehicle otherwise contained contraband so as to justify a general search of the vehicle. The “plain view” doctrine is not applicable because the only matter within the officer’s view from outside the car were the seeds, and they were neither recognized as marijuana seeds by the officer nor were they ever seized as evidence. The search cannot be upheld on the basis of appellant’s consent as the facts outlined show at most submission to apparent authority, but do not show clearly and convincingly a waiver of a constitutional right. See, Bailey v. State, 319 So. 2d 22 (Fla.1975); Talavera v. State, 186 So. 2d 811 (2nd DCA Fla.1966).
It was error to deny appellant’s motion to suppress the tangible evidence seized as a result of the search of the vehicle. The judgment is reversed and the cause remanded with directions that appellant be permitted to withdraw his plea.
REVERSED and REMANDED.
WALDEN, C. J., and OWEN, J., concur. CROSS, J., dissents.
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Jackson v. State, 456 So. 2d 916 (Fla. 1st DCA 1984)…sed the death or serious bodily injury of a human being. See, Behr v. State, 376 So. 2d 398 (Fla. 1st DCA 1979). Although probable cause must be based on objective facts and circumstances, not on personal opinions or suspicions, see, Brown v. State, 330 So. 2d 861 (Fla. 4th DCA 1976), the state has met its burden in this case by showing that Trooper Roberts smelled alcohol on appellant’s breath, knew the circumstances causing the accident, and knew that appellant was the driver of the motor vehicle which caus…
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Joe Council v. State, 442 So. 2d 1072 (Fla. 3d DCA 1983)…. We think that these decisions, as well as Kelly v. State, 407 So. 2d 1011 (Fla. 5th DCA 1981), which is contrary to our opinion in Foxx; Brown v. State, 313 So. 2d 52 (Fla. 4th DCA 1975), cert. denied, 330 So. 2d 21 (Fla.1976); and Brown v. State, 330 So. 2d 861 (Fla. 4th DCA 1976) embody a highly legalistic, indeed myopic, approach to the probable cause issue in these situations which cannot pass muster under the applicable tests of common sense and reality. See Illinois v. Gates, - U.S. -, 103 S.Ct. 2317,…
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State v. Bennett, 481 So. 2d 971 (Fla. 5th DCA 1986)…the car. See Newman v. State, 476 So. 2d 775 (Fla. 4th DCA 1985); McGowan v. State, 351 So. 2d 1116 (Fla. 4th DCA 1977); Berry v. State, 316 So. 2d 72 (Fla. 1st DCA 1975); State v. Jones, 222 So. 2d 216 (Fla. 3rd DCA 1969). Compare: Brown v. State, 330 So. 2d 861 (Fla. 4th DCA 1976) (error not to suppress because police officer only suspected odor emanating from defendant was marijuana and in fact stated that it may have been defendant’s perfume or after shave lotion). Accordingly, we reverse the order grant…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bailey v. State, 319 So. 2d 22 (Fla. 1975)
- Lelis v. State, 186 So. 2d 811 (Fla. 3d DCA 1966)
- Kraemer v. State, 60 So. 2d 615 (Fla. 1952)
- Bailey v. State, 295 So. 2d 133 (Fla. 4th DCA 1974)