Ellison v. State ( 1972 )

BRETT, Judge

(specially concurring):

The facts of the instant case can be distinguished from those of Graham v. State, supra. In Graham, the officer’s actions were motivated by “suspicion,” a fact which they candidly admitted from the witness stand. In the instant case however, suspicion appears not to enter, until after defendant’s action of disposing of the white packet occurred. The record is not clear concerning what caused the officers to drive into the prescription shop driveway, just when they did. One concludes that they were attempting to turn their car around to proceed in the opposite direction; or they were entering the shop area for some other legitimate reason; nonetheless, it appears that defendant became excited when he saw the police car and attempted to dispose of the packet. Officer Schimmels testified, when the prosecutor asked him to explain the occasion for him seeing the defendant, at the time, as follows:

“Yes sir, we were attempting to make a left turn into a driveway at 909 Southwest 29th. We observed a ’58 Ford Station Wagon coming out of the driveway as we were attempting to pull in. The station wagon stopped and we stopped at the edge of the roadway. We saw the Defendant Ellison sitting on the passenger side of this station wagon and observed him open the door and reach down and throw a white object under the car. Officer Acox went around to the side of the car where Ellison was at and picked it up.” (Emphasis added.)

Officer Schimmels testified further that the defendant was still in the car when he reached down and dropped the packet. At that point the officers had probable cause premised upon their training and experience, and from what they saw. They observed what they considered to be contraband, and were not acting out of suspicion alone. In Graham, the officers saw the vehicle make a “U-turn” and park along the north curb, stopped their car, and walked across the street to make inquiry because they were suspicious. No other reason was offered and no probable cause was apparent, until after they proceeded to detain the three men. Therefore, I clearly distinguish the instant case from that of Graham.

I am compelled to observe that the record before this Court fails to connect the syringe and needles with the defendant in any manner. The officers made no comment with reference to the syringe and needles wrapped in a newspaper, but no objections to the evidence were offered by the Public Defender when they were introduced. It is presumed that defense counsel informed the jury that the defendant is an “addict,” in his closing argument. He was charged with “possession” and not for the offense of making a “sale.”

I concur that the conviction should be affirmed, but I feel under the facts of this case the sentence is excessive.