Hansen v. State

385 So. 2d 1081
CourtDistrict Court of Appeal of Florida
DecidedJune 18, 1980
Docket79-513
StatusPublished
Cited by13 cases

This text of 385 So. 2d 1081 (Hansen v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hansen v. State, 385 So. 2d 1081 (Fla. Ct. App. 1980).

Opinion

385 So.2d 1081 (1980)

Wilbur R. HANSEN and Peter Kim Van Nymegen, Appellants,
v.
STATE of Florida, Appellee.

No. 79-513.

District Court of Appeal of Florida, Fourth District.

June 18, 1980.
Rehearing Denied August 6, 1980.

*1082 Kenneth R. Mikos of Friedrich, Kersten, Blackwell & Mikos, Fort Lauderdale, and David Roth of Cone, Owen, Wagner, Nugent, *1083 Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellants.

Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty., Gen., West Palm Beach, for appellee.

MOORE, Judge.

Appellants entered pleas of nolo contendere, specifically reserving their right to appeal the denial of their motions to suppress. Thereafter, the trial court adjudicated both appellants guilty of the felony offenses of possession of marijuana. Appellants appeal their convictions and we reverse.

On the night January 10, 1978, Detective McDonald of the Fort Lauderdale Police Department had a house in Fort Lauderdale under surveillance pursuant to information received one week earlier from a confidential informant. The informant told the detective that marijuana was being stored in and sold from the house, that a BMW automobile was parked in the driveway of the house, and that appellant-Hansen was involved in drug transactions connected with the house. Detective McDonald had received information from this informant for approximately five years. Although information provided by the informant had purportedly proved reliable in the past, no arrests or warrants had resulted from such information. Prior to his surveillance McDonald discovered that Hansen had a record of arrests and that a BMW automobile matching the description given by the informant was parked in the driveway of the house. Thus, although surveillance began as a result of the information received from the confidential informant, McDonald had no information to indicate an expectation of specific criminal activity by the occupants of the house.

That night McDonald observed two unrecognized occupants exit the house, enter an El Camino, and proceed on Sunrise Boulevard to Interstate 95, where they then proceeded north in the direction of West Palm Beach. McDonald summoned the assistance of Detectives Treutle and Ornorato, who were in a separate vehicle, and both vehicles followed the El Camino. At the Belvedere Road exit of I-95 McDonald met with Officers Hagen and Siciliano of the West Palm Beach Police and set up a monitoring post. Treutle and Ornorato followed the vehicle to a residence at 822 Ardmore Road where the vehicle was parked on the street. They attempted to obtain permission to set up a surveillance post from the residents of 828 Ardmore (the house immediately west of 822 Ardmore), but they were unsuccessful as apparently no one was home. Nonetheless, the officers conducted their surveillance by placing Treutle at the south end of the driveway of the 828 Ardmore residence and Ornorato and the north end. Treutle observed the activities of the residence at 822 1/2 Ardmore (a small cottage behind 822) by looking over a chain link fence and hedge of bushes that served as the border between 822 1/2 and 828. From this vantage point, Treutle observed the activities that actually took place in a driveway and lawn area between 822 and 822 1/2 Ardmore Road. While on the 828 property, Treutle observed an occupant of the El Camino enter the cottage. He then observed two men whom he could not identify leave 822 1/2 Ardmore carrying two "bundles" which were placed on the ground approximately 20 feet from the doorway of 822 1/2. A man then exited the cottage and placed the bundles into the El Camino. Two men then exited the cottage, entered the El Camino and drove off. The record is not clear as to how many persons were involved in these activities.

All of these observations by Treutle were orally communicated to Ornorato, who then communicated them to McDonald, Hagen, and Siciliano via radio. Treutle testified that he suspected the bundles contained marijuana, although he stated that he never actually saw any marijuana.

The El Camino proceeded to a gas station near the corner of Belvedere Road and Parker where it stopped. At this time the activities of the occupants were being monitored by McDonald and another unit comprised of Officers Hagen and Siciliano of the West Palm Beach Police. These officers *1084 had been advised of the situation by McDonald and were privy to Ornorato's radio transmissions. After the El Camino stopped, one of the occupants exited the car and went over to a phone booth and apparently made a call. The El Camino proceeded west on Belvedere, turned around, and came back to the gas station. The occupant who made the call again entered the vehicle and it pulled out of the station. At this time the vehicle stopped. The occupants were arrested by Patrolman Robb Robertson of the West Palm Beach Police pursuant to directions from his superior, Hagen. Robertson was assisted in the arrest by Siciliano. Robertson was also privy to the communications from Treutle and Ornorato at Ardmore Road and had also been advised of the situation by Detective McDonald. Following the arrest Robertson then conducted a search of the El Camino. The search produced a ten pound parcel of marijuana wrapped in a garbage bag, a twenty pound parcel of marijuana located inside a cardboard box, a briefcase containing some weighing scales, and a briefcase containing about $8,000 in U.S. currency.

The sole issue in this case is whether there was probable cause to make an arrest of the appellants and conduct the subsequent search of their vehicle. In determining the existence of probable cause in this case, we must analyze the quantum of information as it existed in the minds of the Fort Lauderdale Police. The information and knowledge of the West Palm Beach Police, derived from their Fort Lauderdale colleagues, must also stand or fall under this same analysis.

In suspecting the Fort Lauderdale house as an area of criminal activity, Detective McDonald relied upon information from an unidentified informant. The informant told McDoanld that Hansen, who seemingly resided at the house, was involved in drug transactions and the storage of marijuana at the house. The informant never proffered any specific information relating to past occurrences or future possibilities of any identifiable drug transactions. All the informant told McDonald was that the he somehow knew these facts to be true. At the suppression hearing McDonald did not provide any specifics as to the reliability of his informant in the past, nor did he provide the trial court with any underlying rationale that might have led him to believe that a specific drug transaction was about to take place. All that is reflected in the record is (1) McDonald believed the informant to be reliable (without articulating any specifics), (2) the informant told him that at some vague time in the past marijuana was stored and possibly sold from the Fort Lauderdale house, and therefore, (3) McDonald suspected criminal activity. The house in question was then placed under surveillance. The record reflects no attempt by the police to obtain a search warrant during the week between the time McDonald received his information and the date of arrest. While surveilling the house McDonald observed two unidentified and unrecognizable males depart the premises, enter an unknown vehicle, and drive away. These facts are insufficient to constitute probable cause that a crime was about to be committed.

In Olivera v. State, 315 So.2d 487 (Fla.

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385 So. 2d 1081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hansen-v-state-fladistctapp-1980.