5D07-1096 State v. Ross Fischer

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-1096

Case Date: 06/09/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

STATE OF FLORIDA, Appellant, v. ROSS B. FISCHE R, Appellee. ________________________________/ Opinion filed June 13, 2008 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge. Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant. Joseph J. Pappacoda, Fort Lauderdale, for Appellee. Case No. 5D07-1096

SAWAYA, J. The issue we must resolve is whether the trial court applied the correct law in determining that two law enforcement officers did not have probable cause to believe, based on their training and experience in the detection of illegal narcotics, that the substance they saw in open view on the seat inside Ross Fischer's vehicle was cocaine. The trial court appears to have held that cocaine cannot be distinguished from other white powdery substances and, therefore, concluded that the cocaine the law

enforcement officers observed on the front seat of Ross Fischer's automobile must be suppressed. The trial court also suppressed the cocaine and other drugs discovered in Fischer's wallet after he was arrested. Because the trial court misapplied controlling law, we must reverse the order suppressing the drugs found in Fischer's car and on his person after he was arrested. The issue we address emerges from application of the open view doctrine.1 Of the two categories of open view "factual situations" discussed in Ensor v. State, 403 So. 2d 349, 352 (Fla. 1981), the instant case falls within the "pre-intrusion" category, where a law enforcement officer is standing outside an automobile looking in and observes an item that he or she has probable cause to believe is associated with criminal activity. See Jones v. State, 648 So. 2d 669, 676 (Fla. 1994), cert. denied, 515 U.S. 1147 (1995); see also State v. Jacoby, 907 So. 2d 676, 680 (Fla. 2d DCA) (holding that items were properly seized when the officer saw them in "open view" and "had probable cause to associate the property with criminal activity"), review dismissed, 918 So. 2d 292 (Fla. 2005). In this situation, the courts have specifically held that once the law enforcement

We are cognizant of the distinction between the open view and the plain view doctrines as defined in Ensor v. State , 403 So. 2d 349 (Fla. 1981). The trial court improperly applied the plain view doctrine to reach its conclusion. Nevertheless, the issue the trial court was confronted with and which we must resolve--whether the law enforcement officers had probable cause to believe the powder they observed was cocaine--is relevant under either doctrine. In the context of the plain view doctrine, the courts require that the illegal nature of the item be "immediately apparent" to the officers, which simply means that the officers must have had probable cause to believe the item was contraband or associated with criminal activity. See Jones v. State , 648 So. 2d 669, 678 (Fla. 1994) ("This `immediately apparent' requirement is another way of saying that at the time police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime."); Davis v. State, 834 So. 2d 322, 327 (Fla. 5th DCA 2003) (holding that in order to satisfy the immediately apparent requirement of the plain view doctrine, "the police must have probable cause to associate the item with criminal activity"). 2

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officers have probable cause, they may enter a vehicle on a public road without a warrant and seize the suspected item. See State v. Green, 943 So. 2d 1004, 1006-07 (Fla. 2d DCA 2006) ("Once probable cause is established, the officers may search the vehicle. The warrantless search of Mr. Green's car was thus authorized once the officer saw the razor blade and white powdery residue through the window.") (footnote omitted); State v. Daniel, 622 So. 2d 1344, 1345 (Fla. 3d DCA 1993) ("[W]here a moving vehicle is stopped on the public street by police and immobilized, as here, the law is well settled that the police need not obtain a search warrant to search the vehicle so long as there is probable cause for the search."); State v. Starkey, 559 So. 2d 335, 339 (Fla. 1st DCA 1990) ("We understand from the holding in [California v.] Carney[,] [471 U.S. 386 (1985),] that the police are now free to search any vehicle, any time, and any place (except when it is on residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime. It is our understanding that the Carney holding has eliminated any Fourth

Amendment requirement for a warrant or showing of exigent circumstances."). The facts reveal a proper case for application of the open view doctrine and the reason for our decision to reverse the suppression order. Adverting to the transcript of the suppression hearing, we discover that Fischer was stopped by Deputy Radecki for an improper tag.2 Deputy Radecki noticed that Fischer appeared very nervous and had

A law enforcement officer may properly stop a vehicle displaying an improper tag. See Gomez v. State, 748 So. 2d 352, 352-53 (Fla. 3d DCA 1999) ("A review of the record shows that the trial court properly denied the defendant's motion to suppress the cocaine seized. Regardless of the individual officer's motivation, the traffic stop was lawful because the officer had probable cause to believe that the defendant had violated the traffic code by driving a vehicle with an expired temporary tag."), review dismissed, 762 So. 2d 916 (Fla. 2000); State v. Eubanks, 609 So. 2d 107, 110 (Fla. 4th DCA 1992) 3

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a white substance under his nose. Deputy Radecki testified that he called for back-up because "I thought that he might have been hiding something along with the registration and the vehicle not matching up." In response to the request for back-up, Deputy Lakey and Deputy Barker arrived at the scene. Radecki told Barker to keep his eyes on Fischer because he thought "something was going on." Barker approached Fischer and asked him to step out of his vehicle. As he did, and with the car door open, Barker saw on the black interior of the vehicle, in the location where Fischer was sitting, a white powder he identified as cocaine. Barker described it as "a white powder like substance kind of clumped up into several different pieces." He stated that the texture and appearance made him believe it was cocaine. Barker summoned Lakey, who saw the white powder and also identified it as cocaine. Barker performed a field test on the substance, which produced a positive result for cocaine. Fischer was arrested, and a search of his person uncovered cocaine and oxycontin pills in his wallet. Lakey stated that he read Fischer his Miranda

warnings shortly after he was arrested and that Fischer acknowledged his rights and freely spoke to him about the drugs found on his person. Fischer told the deputy that he had spent $300 for the cocaine and $800 for the oxycontin pills. Fischer was subsequently charged with possession of cocaine. Fischer filed a motion to suppress the drugs, which the trial court granted. The specific basis of the trial court's ruling is its finding that the two deputies did not have

("[A] traffic stop based on an expired tag is permissible . . . ."); State v. S.P., 580 So. 2d 216, 217 (Fla. 4th DCA) ("Discovery that the tag did not match the vehicle justified a stop to seek an explanation for the discrepancy."), review denied, 592 So. 2d 682 (Fla. 1991); Heller v. State, 576 So. 2d 398 (Fla. 5th DCA 1991); see also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001) (holding that stop of vehicle for inoperative trailer lights and missing tag was clearly lawful). 4

probable cause to believe that the white powder they saw was cocaine because law enforcement officers, despite their training and experience in illegal drug detection, simply cannot distinguish cocaine from any other white powdery substance. In announcing its ruling, the trial court stated: First of all

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