Opinion
Case No. 96-1352
Opinion filed May 23, 1997
Appeal from the Circuit Court for Seminole County, Gene R. Stephenson, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and E. Paul Stanley, Assistant Attorney General, Daytona Beach, for Appellant.
No Appearance for Appellee.
The state appeals from the trial court's order suppressing evidence which was discovered after K.S. was taken into police custody. The state argues that the actions of the police officer, which detained K.S., were proper whether based on probable cause or an arrest. We agree and reverse.
At the suppression hearing, Detective Wilkinson of the Seminole County Sheriff's Department, testified he was conducting surveillance on the evening of November 28, 1995 in a neighborhood of Altamonte Springs known for illegal drug sales. He was hiding in some bushes when he observed K.S., a minor, holding a green bottle in a brown paper bag, which appeared to be an open container of alcohol. K.S. then discarded the bottle and a car pulled up. Wilkinson observed K.S. converse with the driver, and put his left hand, palm up, into the driver's window, and stir small items in his palm with his right index finger. He then selected two items from his palm and handed them to the driver.
Wilkinson could not discern what the items were or how they were packaged. He could, however, describe them as being small items. He stated that in his experience with drug activity in that neighborhood, K.S.'s actions were "very indicative of a drug transaction."
Wilkinson then observed K.S. lean into the car window and retrieve six, twelve-packs of Budweiser beer from the passenger seat. K.S. then walked toward a nearby grocery store, and after entering, placed the beer on top of the counter.
Wilkinson testified he feared K.S. would flee. Thus, he waited until K.S. had entered the grocery store before leaving his hiding place. He then entered the store and grabbed K.S. by the shirt from behind. K.S. dropped seven pieces of crack cocaine on the floor, and tried to step on them.
The trial court apparently granted the motion to suppress because it did not believe Wilkinson had probable cause to stop or arrest K.S. However, a police officer does not have to "know" that a certain item is contraband. He only must have probable cause to associate the property with criminal activity. State v. Neumann, 567 So.2d 950, 951 (Fla. 4th DCA), rev. denied, 576 So.2d 289 (Fla. 1991). The United States Supreme Court has held that all that is required in such instances, is that it be immediately apparent to the officer that what is being observed might be contraband. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).
Probable cause exists where police observe other factors which lead them to believe a drug transaction is occurring, even though they do not actually observe the exchange of money for contraband. Reyes v. State, 541 So.2d 772 (Fla. 3d DCA 1989). In this case, the detective observed a transfer of beer for probable drugs. Cash is not the only medium of exchange in a drug transaction. Payment in kind is a typical way of transacting business on the streets. Precin v. United States, 23 F.3d 1215 (7th Cir. 1994)(cocaine received for personal use is payment in kind for services rendered in distributing cocaine); United States v. Harris, 997 F.2d 812, 818 (10th Cir. 1993).
This case is distinguishable from Paul v. State, 638 So.2d 537 (Fla. 5th DCA 1994) because Wilkinson saw more than K.S.'s mere presence around a vehicle.
However, we also conclude that Wilkinson had grounds to arrest K.S. at the time he approached him in the grocery store. He saw K.S. drinking from a bottle that appeared to contain an alcoholic beverage, and he saw K.S. take possession of several twelve packs of Budweiser beer. The possession of alcohol by a minor is a misdemeanor offense. § 562.11, Fla. Stat. (1995). Where, as here, all the elements of a misdemeanor offense occur in a police officer's presence, the officer may make a warrantless arrest. Malone v. Howell, 140 Fla. 693, 192 So. 224 (Fla. 1939); G.E.C. v. State, 586 So.2d 1338 (Fla. 5th DCA 1991); State v. Yunker, 402 So.2d 591 (Fla. 5th DCA 1981).
562.111 Possession of alcoholic beverages by persons under age 21 prohibited.-
REVERSED AND REMANDED.
GOSHORN, J., concurs.
THOMPSON, J., dissents with opinion.
Although this is a close question, I would affirm the order granting the motion to suppress. I find the facts do not justify an investigatory stop or a probable cause arrest. I also disagree with the court that the officer had probable cause to arrest for a misdemeanor committed in his presence, possession of an alcoholic beverage by a minor.
Recently, this court held that based upon the totality of the circumstances, an experienced police officer with knowledge of street-level narcotic transactions had probable cause to make an arrest where the officer saw the exchange of money but did not see the exchange of drugs. In Knox v. State, 22 Fla. L. Weekly D683 (Fla. 5th DCA March 14, 1997), in an area known for narcotics dealing, police observed for two hours as Knox approached vehicles and passed something to the occupants of the vehicles. They also observed Knox with cash in his hand. The arresting officer detailed his experience, his knowledge of the area, the number of recent arrests in the immediate vicinity where Knox was arrested, and his opinion that Knox's behavior was consistent with selling narcotics. Applying the six elements listed in Revels v. State, 666 So.2d 213, 216-17 (Fla. 2d DCA 1995), this court held that there was probable cause for an arrest. Knox, 22 Fla. L. Weekly at D683.
But applying the elements of Knox and Revels to the facts of this case, I find the officer lacked probable cause to believe K.S. had committed a crime. Since there was no probable cause, there was no basis for an arrest. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed. 134 (1959); Popple v. State, 626 So.2d 185 (Fla. 1993). The officer in this case knew the area was known for narcotics transactions because he had worked there for three years, but he did not know K.S. and had no information that K.S. ever engaged in the sale of illegal drugs. The officer testified that initially, the only reason he would have had for approaching K.S. was to investigate a possible open container violation. At that point, he did not know K.S.'s age nor did he know if the container contained alcohol. Later, when he saw K.S. approach the car and exchange something for beer, the officer suspected that K.S. might be involved in the sale of narcotics. The officer followed K.S. into a convenience store, and, in the officer's words, "I walked up to [the] Jackson Street immediately [afterward] and immediately apprehended [K.S.]," who dropped drugs on the officer's foot.
There are several salient Revels elements to which the officer never testified during the hearing: actual proof of ongoing or recent narcotic activity at the specific location; additional information about suspected drug transactions that evening prior to the arrest of K.S.; or testimony that K.S. was involved with drugs prior to his arrest. Revels, 666 So.2d at 216. Absent these additional elements, the testimony was insufficient to establish probable cause for an arrest.
There was also no basis for an investigatory stop. The fact that K.S. leaned into a car and exchanged something for beer is not enough to establish the basis for an investigatory stop.State v. Paul, 638 So.2d 537 (Fla. 5th DCA 1994), rev. denied, 654 So.2d 131 (Fla. 1995) is on point. There, this court held that no reasonable suspicion existed where an officer saw several males around a vehicle but saw no exchange of cash or packaging consistent with a narcotics transaction. Id. at 538. Here, the officer saw one contact by K.S. with a vehicle and no exchange for cash. The officer saw no drug exchange hands, and, even if we consider beer a medium of exchange, these observations are insufficient to constitute a reasonable suspicion for a stop.Paul. At the time the officer seized K.S., he had only a hunch or bare suspicion that a law was being violated, and there was thus an insufficient basis for an investigatory stop. Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995). Since the seizure was illegal, all of the evidence seized was properly suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Furthermore, even if it could be argued there was a basis for a Terry stop, under these circumstances the officer could not physically seize K.S.; rather, the officer could only detain K.S. to see if he had committed, was committing or was about to commit a crime. Terry.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla. Stat. (1995) (Florida's Stop and Frisk Law).
Finally, the majority holds that K.S.' arrest was justified because he was under age 21 and in possession of the beer. See § 562.111, Fla. Stat. (1995). I disagree. The officer testified that he did not determine K.S.'s age until after he had been arrested. Ignorant of K.S.'s age, the officer did not have probable cause to arrest K.S. for a violation of section 562.111.
The trial judge's ruling comes to us clothed with the presumption of correctness. Smith v. State, 378 So.2d 281 (Fla. 1979); State v. Hardy, 610 So.2d 38 (Fla. 5th DCA 1992), rev. denied, 621 So.2d 433 (Fla. 1993). I would affirm because the police had no probable cause for arrest and no basis for an investigatory stop. Accordingly, I respectfully dissent.