Opinion
No. 81-1522.
March 30, 1983.
Appeal from the Circuit Court, Palm Beach County, Carl H. Harper, J.
Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
No appearance by appellee.
The State appeals from an order granting the defendant's motion to suppress physical evidence.
Scotti was arrested after a high speed chase, contraband was seized, and he was charged in various counts with grand theft and possession of methadone and marijuana.
While the record in all of its aspects has been carefully considered, we believe that a recital of the minutiae would be of no help to the Bar, and so we are content to summarize our holding in this case.
This matter is divisible as concerns items seized from:
A. Pontiac automobile;
B. Lincoln automobile; and
C. Scotti's dwelling.
Initially, the trial court denied the motion to suppress in toto. Thereafter the motion was reconsidered resulting in the appealed order which granted the motion as to the Pontiac and dwelling, and denied same as to the Lincoln.
We reverse the order insofar as it pertains to evidence seized from the Pontiac and affirm insofar as it pertains to evidence seized from the dwelling.
We first consider the search of the dwelling based upon a search warrant. Employing the standards found in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), we find that the content of the affidavit for the search warrant was insufficient to establish probable cause. The affidavit recited the hearsay statements of an identified informer who pinpointed defendant as a perpetrator in a burglary and as still in possession of the burglary proceeds. However, the affidavit offers no basis of personal knowledge on the part of the informer to explain the source of his information. The informer does not assert his personal participation in the burglary; nor that he witnessed the burglary; nor that he observed defendant in possession of stolen goods. Without this personal knowledge, the informer lacks Aguilar credibility. Nor does the informer supply sufficient details of facts and circumstances to render the information reliable under Aguilar. The surveillance conducted immediately precedent to the high speed chase suggested nothing incriminating nor even suspicious to corroborate the informer's information, nor was there any other fact offered in the affidavit to slightly corroborate the hearsay. Thus, the application of the Spinelli test also renders this affidavit as an inadequate statement of probable cause. The affidavit being deficient, it therefore follows that the warrant was deficient, that the search pursuant thereto was unreasonable and that the evidence obtained thereby must be suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
As to the search of the Pontiac and subsequent seizure of evidence, we find that it was lawful even though Scotti has standing to attack it. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). This is so because:
A. The officer had probable cause to stop the vehicle. State v. Hunt, 391 So.2d 760 (Fla. 5th DCA 1980); Wooten v. State, 385 So.2d 146 (Fla. 1st DCA 1980).
B. The methadone was lawfully seized from within the car because it was within the officer's plain view. State v. Hughes, 375 So.2d 615 (Fla. 3d DCA 1979).
C. The marijuana seized as a result of the search of the car trunk was proper for either or all of the following reasons:
1. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) permits such a search when police officers have legitimately stopped an automobile and have probable cause to believe that contraband is concealed somewhere within it. The officers may therefore conduct a warrantless search of a vehicle that is as thorough as a magistrate could authorize by warrant.
2. This search also was an inventory search. The Pontiac was blocking the street and its occupants remained silent making it impossible for the officers to follow the procedures outlined in Miller v. State, 403 So.2d 1307 (Fla. 1981).
3. The police were also entitled to seize the Pontiac pursuant to Florida's forfeiture statute § 932.703 and conduct a subsequent search. See also, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
ANSTEAD, J., concurs.
HURLEY, J., concurs in part and dissents in part.
I would uphold the search warrant under the principles announced in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). There, the court stated:
People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.Id., 403 U.S. 583, 91 S.Ct. 2082.
The informant in this case (unlike those in Spinelli and Aguilar) was identified in the search warrant. Moreover, several of his statements constituted admissions against his own penal interest. Indeed, it was these statements which initially led the trial court to sustain the warrant. The court correctly noted that "[a]n admission against penal interest enhances the reliability and credibility of the person giving the hearsay information."
Other facts lend additional credibility to the informant's statements. First, he was caught red-handed with several items from a Volusia County residential robbery and, after talking with the police, directed them to other places where proceeds of the robbery were hidden. Also, he gave a detailed account as to how the robbery had been accomplished — all of which was corroborated by the Volusia County authorities. I submit that the totality of these facts formed a substantial basis to credit the informant's statements. Any prudent and disinterested observer — and certainly a neutral magistrate — would be fully justified in acting upon this information. Thus, I would uphold the warrant.
Moving on to the search of the Pontiac, I am able to concur only in point C(3) of the majority opinion (inventory search after a justified seizure of the vehicle preparatory to its forfeiture). Ante, at 772-773. In paragraph C(1) the majority attempts to justify the search of the Pontiac's trunk on the basis of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). I cannot agree. Aside from the methadone which was in plain view, there are no facts in this record to suggest that the police had probable cause to believe that there was additional contraband in the vehicle. Thus, the majority's reliance on Ross is misplaced.
Paragraph C(2) seeks to justify the trunk search under the guise of an inventory search preparatory to impoundment. Again, I must disagree. Miller v. State, 403 So.2d 1307, 1309 (Fla. 1981), requires that "when the owner or possessor of the vehicle is present, the arresting officers must advise him or her that the motor vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. . . ." Here, the arresting officers failed to give the required warning. Their excuse: the defendant was "uncooperative." I find this unacceptable. "Lack of cooperation" is not among the exceptions listed in the Miller opinion. The Court expressly stated that "consultation with the owner or possessor is not required in circumstances where the vehicle is unattended, its owner is not reasonably available, or its owner or possessor is mentally incapacitated. Id., at 1309. Absent these circumstances, there is an affirmative duty to give the warning.
It is important to recall that the defendant was placed under arrest as soon as he was apprehended. Thus, I suggest that his "lack of cooperation" was nothing more than the exercise of his right to remain silent. It is elementary that this right cannot be burdened. It is also elementary that the police cannot seize property without probable cause. Therefore, unless the police have justification to seize a vehicle or, unless one of the Miller exceptions is present, the police must comply with the law and advise a defendant of his right to provide a reasonable alternative to impoundment. In this case, the defendant's young son was present in the car at the time it was stopped and the police were advised that the child's mother would come and pick him up. Given this background, the officer's excuse for failing to comply with the Miller requirement rings hollow. It is nothing more than a pretext to avoid compliance with the law and I do not think it deserves our approbation.
On the other hand, the rationale set forth in paragraph C(3) (seizure preparatory to forfeiture of the vehicle), would justify an inventory search. The methadone/contraband was in plain view. Consequently, the police had a firm basis to conclude that the vehicle was being used in violation of the drug laws and, therefore, was subject to seizure, inventory and, perhaps forfeiture. See In re Forfeiture of 1979 Toyota, 424 So.2d 922 (Fla. 4th DCA 1982), petition for cert. filed, sub nom., Mora v. City of Fort Lauderdale, (Fla. Case No. 63,170, January 28, 1983); State v. Peters, 401 So.2d 838 (Fla. 2d DCA 1981). Accordingly, I concur in part and dissent in part.