STATE OF FLORIDA, APPELLANT,
v.
THOMAS A. HOPPER, APPELLEE; STATE OF FLORIDA, APPELLANT, V. THOMAS A. HOPPER, APPELLEE
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Florida appeals from a trial court's suppression of marijuana seized during a traffic stop, arguing the trial judge applied the wrong standard of proof. The court holds that the state need only prove justification for a warrantless seizure by clear and convincing evidence, not beyond a reasonable doubt, and reverses the suppression order.
The state must prove justification for a warrantless seizure by clear and convincing evidence, not beyond a reasonable doubt, in ancillary proceedings conducted outside a jury's presence to establish admissibility of seized contraband in criminal cases.
[1] The state's burden to justify a warrantless seizure of evidence is met by clear and convincing evidence, not proof beyond a reasonable doubt.
[2] In a collateral proceeding to determine the admissibility of seized contraband, the justification for a warrantless seizure need not be established beyond a reasonable do…
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Join FLexlaw to unlock all legal intelligence“justification for such seizure need not be established by proof beyond and to the exclusion of a reasonable doubt but may be proved by clear and convincing evidence sufficient to persuade the trial judge of the truth of facts upon which such justification is predicated”
States the holding regarding the proper standard of proof for warrantless seizures in ancillary proceedings
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Join FLexlaw to unlock all legal intelligencePolice officers stopped a vehicle driven by Hopper for a traffic violation and observed marijuana in plain sight, which they seized. At the suppressio…
The full statement of facts, procedural history, and disposition for this case are member content.
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The state appeals pursuant to § 924.071, F.S. 1969, F.S.A. from an order suppressing certain evidence which was seized without a warrant. Testimony was taken on the motion to suppress in which two police officers swore that appellees Ansley and Hopper were stopped for a traffic violation and, thereafter, marijuana was observed in plain sight and seized. Appellee Hopper testified on behalf of both appel-lees denying the traffic violation and also denying that the marijuana was in plain sight. Obviously, it was a swearing match presenting a pure factual matter for the trial judge who, upon the conclusions of all testimony and arguments, stated:
“ * * * I will sit as a finder of fact. I am not convinced beyond a reasonable doubt that the stopping of the car by officer Longpre was not a pretext. Therefore, I find the search to be illegal. I will grant the motion to suppress.” (Italics supplied.)
We reverse.
The sole issue is whether the trial judge applied the proper standard of proof required of the state whose burden it is to justify a seizure or a search without a warrant. Put another way, the question is whether the state must prove “beyond a reasonable doubt” that contraband seized without a warrant was justifiably seized. We think not.
We have found no case, and none has been cited to us, in which the precise question has been decided as it applies to the exception to the search warrant requirement relied upon by the state here, i.e., a “plain sight seizure” after a justified pursuit and confrontation.1 All the cases we have found relating to the extent of the state’s burden in justifying a seizure without a warrant concerned themselves with a consent search which preceded the seizure. The question in those cases was whether or not a voluntary consent was given so as to constitute a waiver of the warrant otherwise required. Those cases of course recognized that the state had the initial burden of establishing such a “waiver,” but it was held therein that such waiver need only be shown by “clear” or “clear and convincing” proof.2 We see no reason why the state’s burden should be any greater when, as here, a waiver of a constitutional safeguard need not be shown at all.
We hold, therefore, that in the ancillary or collateral proceeding conducted outside *44the presence of a jury at or prior to trial,to establish the admissibility .of seized contraband as evidence in a criminal case, justification for such seizure need not be established by proof beyond and to the exclusion of a reasonable doubt but may be proved by clear and convincing evidence sufficient to persuade the trial judge of the truth of facts upon which such justification is predicated. It was error here to require more.
Accordingly, the order appealed from should be, and it is hereby, reversed.
PIERCE, C. J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Prince Albert Johnson v. State, 294 So. 2d 69 (Fla. 1974)…1973, the preponderance of evidence rule in place of the clear and convincing evidence rule heretofore noted in Perkins v. State, (Fla.1969), 228 So. 2d 382, 381; State v. Graham, (Fla.App.1970), 240 So. 2d 486, and State v. Ansley, (Fla.App.1971), 251 So. 2d 42. The decision of the District Court as to the first question should be found to be in conflict with the cited decisions and the cause remanded for further proceedings not inconsistent herewith.…
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State v. Mineo, 42 Fla. Supp. 98 (Lake Cty. Cir. Ct. 1975)…n order to determine whether or not it is a voluntary and knowledgeable waiver or whether it is mere acquiescence to constituted authority. The evidence presented by the state as to the voluntary waiver must be clear and convincing. State v. Ansley, 251 So. 2d 42 (2d D.C.A. Fla. 1971) and Sagonias v. State, 89 So. 2d 252 (Fla.). If the defendant Mineo consented to the search only because of fear of the superior position of the police, this is not a voluntary consent, Pekar v. U. S., 315 F. 2d 319 (5 C.A. 196…
Authorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- State v. Hiram Cazes Parnell, 221 So. 2d 129 (Fla. 1969)
- Lelis v. State, 186 So. 2d 811 (Fla. 3d DCA 1966)
- State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970)
- Chance v. State, 202 So. 2d 825 (Fla. 2d DCA 1967)
- Carter v. State, 238 So. 2d 681 (Fla. 1st DCA 1970)