THE STATE OF FLORIDA, APPELLANT,
v.
WILLIAM STANLEY ELBERTSON, APPELLEE
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The court held that the seizure of marijuana plants was not illegal because the contraband was in plain view, even when observed through a fence with a flashlight.
Officers responded to a burglary report at the defendant's residence and, while preparing to leave, observed marijuana plants in the defendant's yard …
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PEARSON, Judge.
The State has appealed an order granting the defendant’s motion to suppress marijuana plants seized at the time of his arrest for the possession of a controlled substance. The trial judge has set forth the facts found to have been established at the hearing on the motion.
“1. The arresting officers went to the residence of the Defendant at night as a result of a report of a burglary in progress. They also were to serve a warrant on another individual on charges unrelated to the charges against this Defendant. The other individual was not at the residence.
“2. The officers established that no burglary was in progress by examining Defendant’s driver’s license and other papers.
“3. As the officers prepared to leave the premises, they went to the rear of the residence and flashed a light through spaces in the high wooden fence, observing marijuana plants inside Defendant’s yard. The officers opened the gate.
“4. The officers then proceeded to the patio door of the residence and knocked. When the door was opened by the Defendant, who was accompanied by an officer who was inside the residence, marijuana was observed inside the door.”
We hold that the facts recited and the evidence received upon the motion do not support the order suppressing the evidence. The search was not illegal where the contraband was in plain view. See Harris v. U. S., 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The fact that the contraband was seen through a fence and with the aid of a flashlight is not a bar to the “plain view” rule. See Marshall v. U. S., 422 F. 2d 185, 189 (5th Cir. 1970).
Reversed and remanded.
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Citator
Cited By
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Newberry v. State, 421 So. 2d 546 (Fla. 4th DCA 1982)…70); Marshall v. United States, 422 F. 2d 185 (5th Cir.1970); Fullbright v. United States, 392 F. 2d 432 (10th Cir.1968); Albo v. State, 379 So. 2d 648 (Fla.1980); McDougall v. State, 316 So. 2d 624 (Fla. 4th DCA 1975). See also, State v. Elbertson, 340 So. 2d 1250 (Fla. 3d DCA 1976); and Gianetta v. State, 296 So. 2d 654 (Fla. 2d DCA 1974). The defendant relies on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and United States v. Kim, 415 F.Supp. 1252 (D.C.Hawaii 1976). However, th…
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Robinson v. State, 65 So. 3d 75 (Fla. 2d DCA 2011)…ts, even though an officer may specifically be looking at an area of suspicious activity”). Law enforcement officers often augment plain view with a flashlight. See, e.g., State v. Goodwin, 36 So. 3d 925, 927 (Fla. 4th DCA 2010); State v. Elbertson, 340 So. 2d 1250, 1251 (Fla. 3d DCA 1976). Accordingly, because Mr. Robinson’s theory was not a viable legal theory on which he could obtain postconviction relief and the trial court had already given him an opportunity to amend the motion, the trial court did not…
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State v. Hite, 642 So. 2d 55 (Fla. 2d DCA 1994)…inciples. The flashlight, merely enhanced the officer’s plain view. See McVay v. State, 553 So. 2d 331 (Fla. 4th DCA 1989) (marijuana on shelf considered in plain view when seen by officer shining flashlight into bedroom closet); State v. Elbertson, 340 So. 2d 1250 (Fla. 3d DCA 1976) (marijuana plants in plain view of officers shining flashlight through wooden fence at night); see also Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (shining flashlight into automobile not an illegal search)…
Authorities Cited
- Harris v. United States, 390 U.S. 234 (U.S. 1968)
- Marshall v. United States, 422 F.2d 185 (5th Cir. 1970)