ROY LEE ST. JOHN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roy Lee St. John, Jr. appealed his probation sentence resulting from a nolo contendere plea to marijuana possession, challenging the trial court's denial of his motion to suppress evidence obtained from a warrantless search of his vehicle. The appellate court reversed and remanded, holding that the search violated the Fourth Amendment because the trial court failed to make adequate findings regarding the informant's reliability before establishing probable cause.
The warrantless search of the automobile was impermissible. Although Officer Prescott lawfully detained St. John and was authorized to search only to the extent necessary to disclose the presence of a weapon, a general search of the automobile for contraband was not justified incident to the lawful detention. The trial court was required to make factual findings that the informant was reliable and the information credible before establishing probable cause based on the tip, but made no such findings; therefore, the contraband could not justify the search.
[1] A warrantless search of an automobile is permissible if the informant's tip provides probable cause to believe the automobile contains contraband.
[2] A lawful detention of a suspect does not authorize a general search of an automobile for contraband.
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Join FLexlaw to unlock all legal intelligence“A general search of the automobile for contraband, however, was impermissible as incident to the lawful detention.”
Establishes that while the officer had authority to detain St. John and conduct a limited frisk, a general search of the car for contraband exceeded the lawful scope of the detention.
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Join FLexlaw to unlock all legal intelligenceOn February 5, 1977, a confidential informant told Officer Prescott that St. John possessed five to seven pounds of marijuana in a white-over-blue 196…
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SMITH, Judge.
Appellant pleaded nolo contendere to a charge of possession of more than five grams of marijuana, reserving the right to appeal and to assert error in the trial court’s denial of appellant’s motion to suppress evidence seized in a warrantless search of his automobile. Adjudication of guilt was withheld and appellant was placed on probation for eighteen months. Appellant appeals from the trial court’s order placing him on probation. Section 924.-06(l)(b), Fla.Stat. (1975).
At the hearing on appellant’s motion to suppress, police officer E. B. Prescott testified to the following facts: On February 5, 1977, a confidential informant told Officer Prescott that appellant had five to seven pounds of marijuana in a white over blue ’63 or ’64 Chevrolet and gave the license tag number of the car, a brief description of appellant, and appellant’s address. Officer Prescott testified that he had known the informant for several years and knew him to be reliable, but did not ask how or when he had received the information.
Three to four hours later, at 12:40 a. m., Officer Prescott saw appellant sitting in an automobile in front of the address supplied by the informant. The automobile matched the informant’s description. Solely on the basis of the informant’s tip, Officer Prescott pulled up beside appellant’s ear and asked him to step out and show his identification. With appellant out of the car, Officer Prescott put his head into the automobile, through an open window or door, and smelled marijuana. He then searched the trunk, finding nothing, and the interior of the car, finding marijuana in a paper sack on the right front floorboard. Officer Prescott did not see or smell marijuana from outside the automobile. The trial judge found that the search of the car’s interior was reasonable, and denied the motion to suppress. We reverse.
As the trial judge noted, Officer Prescott had a duty to investigate the information given him by the informant, because it gave rise at least to a well-founded suspicion that appellant was committing a crime. On that basis, Officer Prescott properly detained the appellant, asked him to identify himself, and was authorized to search to the extent necessary to disclose the presence of a weapon. Section 901.151, Fla.Stat. (1975); Williams v. State, 294 So. 2d 37 (Fla. 3d DCA 1974, cert. denied, 299 So. 2d 602 (Fla.1974). A general search of the automobile for contraband, however, was impermissible as incident to the lawful detention. Harris v. State, 352 So. 2d 1269 (Fla. 2d DCA 1977).
To escape suppression, the contraband must have been in plain view, State v. Ashby, 245 So. 2d 225 (Fla.1971), or the informant’s tip must have been legally sufficient to give the police officer probable cause to believe that the automobile contained contraband, Davis v. State, 350 So. 2d 834 (Fla. 2d DCA 1977). It is not a search for an officer to observe contraband in plain view, or as here, to detect the odor of marijuana from a place where he has a right to be. State v. Ashby, supra; McGowan v. State, 351 So. 2d 1116 (Fla. 4th DCA 1977). In this ease, however, the police officer testified that he did not see or smell marijuana until he put his head inside the car, where the officer did not have a right to be without probable cause to believe that the automobile contained contraband.
Although the contraband was not in plain view, the warrantless search of the automobile was permissible if the trial court could verify that the informant’s tip gave rise to probable cause for the police officer to believe that the automobile contained contraband. Davis v. State, 350 So. 2d 834 (Fla. 2d DCA 1977). In this case, since probable cause was based on an informant’s tip, the trial court was required to make factual findings that the informant was reliable and the information credible. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Lee, 313 So. 2d 441 (Fla. 2d DCA 1975); Samuels v. State, 318 So. 2d 190 (Fla. 2d DCA 1975), cert. denied, 330 So. 2d 21 (Fla.1976). The trial court made no such findings and the record is inadequate with respect to the reliability of the informant.
Therefore, the order of the trial court placing appellant on probation is REVERSED and the case is REMANDED for further proceedings, which may include a hearing and determination of whether the informant was reliable and the information credible at the time the information was given.
MILLS, Acting C. J., concurs.
MELVIN, J., dissents.
MELVIN, Judge,
dissenting.
I dissent. It is my view that the informant’s tip was legally sufficient to give the officer probable cause to believe, and the officer, based thereon, did believe, that the automobile contained the contraband which he later found in a paper sack on the right front floorboard.
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Antone v. State, 382 So. 2d 1205 (Fla. 1980)…RG, JJ., concur. . Art. V, § 3(b)(1), Fla.Const. . Florida courts have also been called upon to apply the Aguilar-Spinelli test. See, e. g., Findlay v. State, 316 So. 2d 33 (Fla.1975); State v. Smith, 233 So. 2d 396 (Fla. 1970); St. John v. State, 356 So. 2d 32 (Fla. 1st DCA 1978); Davis v. State, 350 So. 2d 834 (Fla.2d DCA 1977), cert. denied, 355 So. 2d 517 (Fla.1978). . Wilson and Henry are distinguishable from our decision in Greene v. State, 351 So. 2d 941 (Fla. 1977). In Greene we did not address th…
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Barfield v. State, 396 So. 2d 793 (Fla. 1st DCA 1981)…ERVIN, Judge. Barfield appeals his conviction for possession of cocaine, entered following his conditional nolo plea which reserved the right to appeal the denial of his motion to suppress. He relies primarily upon St. John v. State, 356 So. 2d 32 (Fla. 1st DCA 1978), as requiring reversal because it commands the trial court to make factual findings that the informant was credible or his information otherwise reliable, and, he argues that since no such findings were made in the instant case,…
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Brady Otis Byrd v. State, 380 So. 2d 457 (Fla. 1st DCA 1980)…legally inside the car, he could validly seize contraband seen by him in plain view, State v. Ashby, 245 So. 2d 225 (Fla.1971), arrest the defendant for its possession, then conduct a search of the car. Appellant’s reliance upon St. John v. State, 356 So. 2d 32 (Fla. 1st DCA 1978) is misplaced. There, as here, the detaining officer had the right to stop defendant’s vehicle because the information provided to him gave rise to a well-founded suspicion that criminal activity was present. The searching officer…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Aguilar v. Texas, 378 U.S. 108 (U.S. 1964)
- Spinelli v. United States, 393 U.S. 410 (U.S. 1969)
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Marshall v. State, 352 So. 2d 1269 (Fla. 2d DCA 1977)
- Williams v. State, 294 So. 2d 37 (Fla. 3d DCA 1974)
- Williams v. State, 299 So. 2d 602 (Fla. 1974)
- Liberty Mut. Ins. Co. & Howard Indus., Inc. v. Ladislad Zamora & State of Fla., 299 So. 2d 602 (Fla. 1974)
- Peterson v. State, 350 So. 2d 834 (Fla. 3d DCA 1977)
- Davis v. State, 350 So. 2d 834 (Fla. 2d DCA 1977)
- Samuels v. State, 318 So. 2d 190 (Fla. 2d DCA 1975)