STEPHEN PATRICK CARR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Patrick Carr was charged with possession of a controlled substance and paraphernalia after police searched his vehicle without a warrant. The trial court denied his motion to suppress evidence, and he entered a plea of nolo contendere. The appellate court reversed, finding the initial seizure of hand-rolled cigarettes from his vehicle was improper and violated the Fourth Amendment, making all subsequent evidence inadmissible.
The court reversed the conviction, holding that the seizure of the cigarettes was improper because the officer lacked probable cause to arrest and no exception to the warrant requirement applied. The plain view exception did not apply because there was no contraband actually visible, only two cigarettes whose contents were unknown. All evidence obtained from the subsequent search was therefore inadmissible.
[1] A search and seizure conducted without a warrant is inadmissible unless an exception to the warrant requirement applies.
[2] For a search incident to a lawful arrest to be valid, the arrest must be justified by probable cause existing prior to the search.
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Join FLexlaw to unlock all legal intelligence“Officer Blodgett did not have a search warrant at the time of the seizure of the cigarettes and the subsequent search of appellant's vehicle. Therefore, the evidence obtained at that time was inadmissible to prove appellant's guilt unless one of the exceptions to the warrant requirement was applicable to the situation.”
Establishes the foundational rule that warrantless searches are per se unreasonable unless an exception applies.
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Join FLexlaw to unlock all legal intelligenceOn August 16, 1976, Officer Blodgett approached Carr in a residential area at 10:30 P.M. and questioned his presence. After Carr provided identificati…
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RYDER, Judge.
Stephen Patrick Carr, appellant herein, was charged with possession of a controlled substance and paraphernalia. Appellant filed a motion to suppress evidence which the trial court denied.
Appellant, thereafter, entered a plea of nolo contendere, was sentenced to a year and a day and this appeal ensues.
Appellant contends that the trial court erred in denying his motion to suppress evidence. We agree and reverse.
At the suppression hearing, appellant and the state stipulated to the following statement of facts:
(a) Defendant was approached by Officer Blodgett of the Dunedin Police Department and questioned regarding his presence in a residential area at 10:30 P.M. on August 16, 1976. •
(b) At the time, the defendant was outside his vehicle and explained his presence, giving proper identification, as requested by the officer. (c) Even though the defendant was outside his vehicle, Officer Blodgett shined his flashlight into the vehicle “to check the interior”, where he observed two hand-rolled cigarettes.
(d) Officer Blodgett went into the vehicle, seized the hand-rolled cigarettes and examined them and their contents.
(e) Officer Blodgett determined the cigarettes appeared to contain marijuana and placed the defendant under arrest for misdemeanor possession of marijuana.
(f) Officer Blodgett then reached back into the vehicle and searched a folded blanket finding what appeared to be “two lids of marijuana” and a rolling device.
(g) Defendant was arrested for felony possession and paraphernalia. (h) Officer Blodgett requested Officer Mann to help him search the truck at which time additional items of contraband were seized.
The testimony of Officer Blodgett was also offered during the hearing. He stated when he saw the two cigarettes through the window he “knew” they were marijuana cigarettes because they were unevenly rolled and twisted at the end. Actually, he could not really see any marijuana. On the basis of this evidence and the stipulated statement of facts, the trial court found the seizure of the marijuana cigarettes proper. We disagree.
Officer Blodgett did not have a search warrant at the time of the seizure of the cigarettes and the subsequent search of appellant’s vehicle. Therefore, the evidence obtained at that time was inadmissible to prove appellant’s guilt unless one of the exceptions to the warrant requirement was applicable to the situation. Dixon v. State, 343 So. 2d 1345 (Fla. 2d DCA 1975). After extensive review of the record, wé can find no such exception.
The state argues that the search and seizure were valid because they were ‘incident to a lawful arrest. For this exception to apply, the arrest must be justified by facts constituting probable cause to arrest which are within the arresting officer’s knowledge prior to the search. Dixon v. State, supra. However, in this case Officer Blodgett did not have probable cause to arrest appellant and so the exception was not applicable.
The Dixon court noted that,
The test to determine probable cause is whether the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.
The hard facts within Officer Blod-gett’s knowledge do not meet this standard. All he could see at the time he looked into appellant’s vehicle were two cigarettes. As they were twisted shut at both ends, he could not know what material was within the paper. The state also contends that the plain view exception should apply to this case. We reject that argument because, as noted above, there was no contraband in plain view, merely two cigarettes.
Because we have found that the seizure of the cigarettes was improper, we must find any search and seizure subsequent thereto unreasonable. See State v. Lundy, 334 So. 2d 671 (Fla. 4th DCA 1976).
We reverse the judgment and sentence and remand this case for further proceedings consistent with this opinion.
HOBSON, Acting C. J., and DANAHY, J., concur.
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P.L.R. v. State, 455 So. 2d 363 (Fla. 1984)…ila envelope in defendant’s pocket. The officer testified that the only thing he had ever seen these envelopes used for at this location was narcotics transactions. This does not raise his suspicion to the level of probable cause. In Carr v. State, 353 So. 2d 958 (Fla. 2d DCA 1978), the court held that a policeman does not have the right to seize a hand-rolled cigarette without a warrant simply because it is suspected that it contains marijuana. Certainly a hand-rolled cigarette is more apt to contain mariju…1 / 2
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Clark A. Caplan v. State, 531 So. 2d 88 (Fla. 1988)…BARKETT, Justice. We have for review Caplan v. State, 515 So. 2d 1362 (Fla. 4th DCA 1987), because of conflict with Carr v. State, 353 So. 2d 958 (Fla. 2d DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the opinion below. The questions presented by this case are (1) whether the police are entitled to conduct an inventory search of a car disabled in a busy intersectio…1 / 2
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Pomerantz v. State, 372 So. 2d 104 (Fla. 3d DCA 1979)…ting open the black plastic trashbags in order to discover the marijuana. As such, no valid plain sight seizure of contraband from the first suitcase was ever accomplished and the search and seizure conducted therein was unreasonable. Carr v. State, 353 So. 2d 958 (Fla. 2d DCA 1978). B The state next contends that the warrantless search of the second and third suitcases was reasonable because it was based on probable cause and was conducted under exigent circumstances which made it impracticable to obtain a…
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dixon v. State, 343 So. 2d 1345 (Fla. 2d DCA 1977)
- State v. Lundy, 334 So. 2d 671 (Fla. 4th DCA 1976)