Why Were These Two Cases Decided Differently?

Davis v. State

Jerry Thane DAVIS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-865. Court of Criminal Appeals of Oklahoma. April 3, 1990.

Rehearing Denied May 18, 1990.

Waiting for Evans and Roberts to leave the area, Cain and Osborn were contacted by a surveillance unit who had been monitoring the operation and informed the officers that a decision had been made to arrest Evans and Roberts. The men were subsequently arrested by another unit in the area.

A search of both men failed to yield the $1,200.00. Roberts agreed to cooperate with the officers and named Hugh Sprague as the individual from whom he had obtained the cocaine. Roberts provided directions to Sprague's residence. The officers obtained a search warrant for the Sprague residence and executed it immediately. Finding Hugh Sprague at home, the officers searched the house and questioned him about Evans and Roberts. Sprague admitted that Evans and Roberts had earlier obtained the cocaine from him, but the cocaine had been supplied to him by the Appellant. Sprague told the officers that the Appellant had delivered the cocaine earlier in the evening and returned later to pick up the money. He gave the officers a description of the Appellant and the car he was driving and possible locations where he could be found that night. Detective Cain radioed the information to Officer Yarborough and both officers proceeded to search for the Appellant.

Yarborough spotted Appellant's car in a parking lot of the club Faces. Relaying this information to Cain, Yarborough was directed to follow Appellant until Cain arrived. Appellant left the club for the nearby Denny's restaurant. Yarborough was then able to detain Appellant until Cain arrived.

After Appellant identified himself he was placed under arrest for conspiracy to distribute cocaine. A search of Appellant yielded a small bottle containing white powder from his pocket and $1,400.00 cash, including the $1,200.00 used earlier by the detectives to purchase the cocaine. A search of his vehicle revealed a fully loaded .22 automatic pistol in the glove compartment. Discovered in the trunk was a blue gym bag containing scales, a sifter, a funnel, a plastic straw, a small bag of white powder later determined to be cocaine, and a larger bag of white powder later determined to be used as a cutting agent.

During an interview with Detective Cain, Hugh Sprague named Appellant as his supplier of the cocaine previously sold by Evans and Roberts to the police officers. Sprague not only named Appellant but provided a description of him and the vehicle he was driving and possible locations where Appellant could be found that evening. We find that Detective Cain possessed adequate probable cause to arrest Appellant.

Robinson v. State

Frank ROBINSON, Appellant, v. STATE of Florida, Appellee.

No. 88-2963.

District Court of Appeal of Florida, First District. Jan. 26, 1990.

On February 12, 1988, a two-count information was filed charging Robinson with a third degree felony for possession of crack cocaine, and misdemeanor possession of drug paraphernalia. On September 2, 1988, he filed a motion to suppress the crack cocaine that was seized in an allegedly illegal search of his person. At a hearing on Robinson's suppression motion, Officer Deborah McDaris of the Tallahassee Police Department testified that she received a radio dispatch at 1:50 on the afternoon of January 30, 1988. She stated: "The tip that we got, we were dispatched by regular radio dispatch. They stated that the complainant had said that a black male, approximately 40 years of age, wearing a brown jacket and green army pants, was selling crack cocaine near the chapel in the 400 block of West Georgia Street."

The chapel was a vacant building that was posted no trespassing. There had been a problem with narcotics use and sales in the area. Officer McDaris testified that she arrived at the scene within five minutes of the radio dispatch. Upon arrival, she observed a group of people hanging around a wall near the chapel; one person in the group fit the description "very accurately". Appellant began walking away as Officer McDaris approached, but stopped when Officer Moody approached from the other direction. Officer McDaris made first contact with Robinson and ascertained that he was 44 years old; this matched the informant's description. Although trespassing was the only criminal activity observed, the police proceeded to conduct a search of the appellant. When Officer McDaris was asked why she didn't request appellant's consent to search, she responded: "I didn't feel that I needed to. I had received such an accurate description. The area was known for narcotics sales. There's no reason for anyone to have been there. I have spent hours on surveillance of that area. No person would have been there that, you know, was just--I can't think of any reason for someone to be there at all."

Appellant was arrested after the search produced a small rock of crack cocaine and a single-edged razor blade, which Officer McDaris testified is normally used to cut rocks of crack cocaine. On cross examination, Officer McDaris stated that she did not approach any other person in the group for trespassing and further that she had no reason to believe that Robinson was armed.

Officer John Moody testified that he received the radio dispatch and arrived at the scene within five minutes. He had made numerous arrests for crack sales in the same location. He stated that he approached appellant, informed him of the complaint and told him that there was probable cause to conduct a search. When the search produced one small rock of crack cocaine, appellant was arrested for possession of cocaine. When asked why no arrest was made for trespassing, Officer Moody explained: "Our procedure on arresting for trespassing on businesses when they're not open is if the people that own it or manage it have a letter on file at the police department, they will write a letter requesting that anybody not authorized to be there be arrested. We will first give warnings and then arrest them. Although it was posted, we did not at that time have a letter on file from Inspired Ministries."

Appellant first points out that both Officer McDaris and Officer Moody admitted that they relied solely on the information contained in the radio dispatch for finding probable cause. He argues that the tip upon which the dispatch was based was from an unknown source and that the only details offered related to his clothing and location. In short, he maintains that the officers observed nothing to corroborate the incriminating portion of the tip. Under these facts, appellant argues, the police did not have probable cause to make an arrest nor did they possess even a reasonable suspicion necessary to justify an investigatory stop.

The state responds that the officers had probable cause to arrest the appellant on a narcotics violation because the anonymous tip contained a detailed description of the individual who was selling drugs. When they arrived on the scene they observed a person matching that description and arrested him. The state asserts further that since Officers McDaris and Moody had probable cause to make an arrest for trespassing, the search of Robinson's person was valid pursuant to that probable cause. Citing to Gasset v. State, 490 So.2d 97 (Fla. 3d DCA 1986), the state maintains that the fact that no arrest was made for trespassing is inconsequential because the propriety of an arrest does not turn on the charges upon which the arrest was effected.

Examining first appellant's contention that no probable cause existed to arrest him on a narcotics charge, we observe that the probable cause standard for a law enforcement officer to make a legal arrest is whether the officer has reasonable grounds to believe the person has committed a felony. We note also that the standard of conclusiveness and probability is less than that required to support a conviction. Blanco v. State, 452 So.2d 520, 523 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). In City of Jacksonville v. Alexander, 487 So.2d 1144, 1146 (Fla. 1st DCA 1986), this court articulated the probable cause standard as follows: Probable cause exists where the facts and circumstances, as analyzed from the officer's knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed. We are required to view the evidence in a light most favorable to sustaining the trial court's ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). When so viewed, the basis for probable cause includes the anonymous tip and appellant's presence in an area known for drug activity. We believe the appellant correctly points out that this was insufficient to meet even the lesser standard of "reasonable suspicion" necessary to justify an investigatory stop. The police can make a stop based upon an anonymous tip if the tip is sufficiently reliable because of the surrounding circumstances or the nature of the information given in the tip itself. Hetland v. State, 387 So.2d 963 (Fla.1980). In the instant case, the tip itself offered nothing more than innocent details of identification that could have been provided by any pilgrim on the roadway. The unknown informant did not say that he or she witnessed a drug transaction or that money or drugs were seen. The only "surrounding circumstance" mentioned by the police as being corroborative was appellant's presence in an area where there had been problems with drug sales and usage. Although there was also some suggestion that appellant attempted to evade the police by walking from the scene, it is well established that even running away in a high crime area is an insufficient foundation for reasonable suspicion. Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989).