State v. Ellison

455 So. 2d 424
CourtDistrict Court of Appeal of Florida
DecidedSeptember 26, 1984
Docket83-275
StatusPublished
Cited by16 cases

This text of 455 So. 2d 424 (State v. Ellison) 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
State v. Ellison, 455 So. 2d 424 (Fla. Ct. App. 1984).

Opinion

455 So.2d 424 (1984)

STATE of Florida, Appellant,
v.
Eugene ELLISON, Appellee.

No. 83-275.

District Court of Appeal of Florida, Second District.

July 20, 1984.
As Corrected September 26, 1984.

*426 Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellant.

Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellee.

DANAHY, Judge.

This appeal presents the question whether the trial court correctly ruled that the police officer did not have probable cause to initially seize a package from the defendant, Eugene Ellison, during a lawful vehicle stop. We hold that the trial court erred and therefore reverse.

The evidence presented at a suppression hearing is not in dispute. On August 2, 1982, at about 9:45 p.m., police officers Gary Hitchcox and Carolyn Ferguson were on routine patrol in the Jordan Park area of south St. Petersburg. Jordan Park is an area well known to the police department as a site frequently used for street-level narcotics transactions. Officer Hitchcox himself had participated in three drug-related arrests within the last six months in that area.

While on patrol, the two officers observed a vehicle without a taillight being driven by Ellison on a city street. The officers decided to make a traffic stop for this violation. Officer Hitchcox turned on the top lights of the patrol car, signalling Ellison to pull over. Ellison pulled over to the curb, stopped, and turned his engine off. Just as the patrol car was coming to a stop behind him, Ellison hurriedly exited his vehicle and started walking back toward the patrol car. Hitchcox immediately exited his patrol car and approached Ellison who, by this time, was fully illuminated by the headlights of the patrol car. When the two men met within two feet of each other, Hitchcox observed a rolled up, clear plastic baggie containing several flat, irregularshaped pieces of tinfoil which protruded two to three inches above the front waistband of Ellison's trousers.

Officer Hitchcox stated that police officers know that this packaging arrangement of tinfoil packets encased within a plastic baggie is consistent with the way narcotics are customarily packaged and sold, particularly in the Jordan Park area. Officer Hitchcox also stated that he felt certain he was dealing with a narcotics violation as soon as he saw this packaging arrangement. He based his conclusion on ten years' experience and training as a police officer. His experience included personal observation of over 1,000 tinfoil packets and twenty-five to thirty plastic baggie and tinfoil packet arrangements which were found to contain heroin or cocaine. Further, he had participated in some fifty arrests involving similarly packaged narcotics which had been seized from the waistband area of various suspects. Accordingly, without first communicating with either Ellison or Officer Ferguson, Officer Hitchcox reached out and removed the package from Ellison's waistband. The officers then took Ellison into custody.

At the police station, a presumptive test run on the contents of the encased tinfoil packets proved positive for heroin. Ellison was then formally arrested for possession of that narcotic. Incident to his arrest, Ellison was searched and a knife with a four-inch blade was found. Ellison was then also charged with carrying a concealed weapon.

At the outset of our analysis of the question presented, we note that there is no question of the propriety of the stop and the police encounter with Ellison. We also note that the motion to suppress and the trial judge's order concern only the initial *427 seizure of the package. The propriety of the search of the package after its seizure is not presented and we do not address it. Accordingly, the issue we must resolve is whether Officer Hitchcox's observation of the package, when coupled with certain other circumstances known to the officer at the time of the warrantless seizure, is sufficient to constitute probable cause to believe the package contained contraband.

Given the totality of the circumstances related by Officer Hitchcox, we conclude that he had probable cause to believe that the package contained narcotics. Our conclusion is reached after a study of applicable precedents of this and other courts which have discussed the conditions necessary to support a warrantless seizure under the plain view doctrine.

A law enforcement officer, in certain circumstances, may make a warrantless seizure of objects which are in plain view. In reviewing the plain view cases, we recognize that evidence is legally seized if:

1. The officer is in a place where he had a lawful right to be.
2. The officer inadvertently comes upon an object which is openly visible.
3. It is immediately apparent to the officer that the object constitutes evidence of a crime.

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see, e.g., Adoue v. State, 408 So.2d 567 (Fla. 1981); Ensor v. State, 403 So.2d 349 (Fla. 1981); Neary v. State, 384 So.2d 881 (Fla. 1980); Derrickson v. State, 399 So.2d 100 (Fla. 1st DCA 1981); State v. Melendez, 392 So.2d 587 (Fla. 4th DCA 1981); State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 637 (Fla. 1980).

Thus the plain view doctrine permits a law enforcement officer to seize incriminating evidence or contraband in plain view whether or not there is time to get a warrant if such contraband is inadvertently discovered during lawful police activity. Ensor.

There is little dispute that Officer Hitchcox's actions satisfied the first two prongs of the Coolidge test. First, Officer Hitchcox clearly was in a location where he had a right to be when he stopped Ellison for the observed traffic infraction. Thus the initial intrusion which afforded the view was lawful. Second, Officer Hitchcox inadvertently discovered the package when he saw it protruding from Ellison's waistband when Ellison approached him after the stop. Officer Hitchcox in no way violated Ellison's Fourth Amendment rights by merely looking at the package which Ellison exposed to his view. Under the plain view doctrine such evidence is deemed to be properly seized where it is so placed that it might be seen by an officer who is where he had a right to be. It cannot be said that Ellison had any reasonable expectation of privacy in the exposed package at this point. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Albo v. State, 379 So.2d 648 (Fla. 1980); Bailey v. State, 319 So.2d 22 (Fla. 1975); Ensor; Hornblower v. State, 351 So.2d 716 (Fla. 1977); Derrickson; State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978).

Whether the third prong of the Coolidge test has been satisfied, i.e., here whether the incriminating nature of the contents of the package was "immediately apparent," is a more difficult question. Every warrantless intrusion must be justified by articulable facts which would have supported the issuance of a warrant based on probable cause.

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Bluebook (online)
455 So. 2d 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellison-fladistctapp-1984.