The court case below involved a drug charge (cocaine) and an illegal search.
It’s from Rex Curry of Libertarian Lawyers http://members.ij.net/rex/
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drugs and vices, opposing searches, expanding gun rights, protecting self-defense,
cutting taxes, and cutting government back to its proper teeny-weeny role
of protecting people and their property from violence and theft.
TARA UNION v. STATE FLORIDA
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
660 So. 2d 803; 20 Fla. Law W. D 2174
[6] Appeal from the Circuit Court for Pinellas
County; Claire K. Luten, Judge.
[7] Rex Curry, Tampa, for Appellant.
[8] Robert A. Butterworth, Attorney General,
Tallahassee, and Kimberly D. Nolen, Assistant Attorney General, Tampa, for
Appellee.
[9] Parker, A.c.j., and Blue and Fulmer, JJ.,
Concur.
[10] Author: Per Curiam
[11] Per Curiam.
[12] The defendant, Tara Union, appeals the denial
of her motion to suppress cocaine found in her purse during the search of
a car in which she was a passenger. We reverse because the state failed to
prove that the warrantless search of the car was justified as either a search
incident to arrest or a search based on probable cause.
[13] The following undisputed facts were presented
by stipulation. Union was a passenger in a car also occupied by two men who
were involved in a drug transaction that had been arranged by law enforcement
officers using a confidential informant. The officers had no reason to believe
that Union would be involved in the drug transaction. Union stayed in the
car while the two men went into a hotel room and sold cocaine to the informant.
After the men were arrested, two officers who had observed the men arriving
at the hotel went to search the car which the men had occupied. When the
officers observed Union in the car, they took her out of the car and searched
her purse where they found a trace amount of cocaine.
[14] The state contends that the search of the car
and its contents was proper as either a search incident to the arrest of
the two men who made the drug sale or as a search based on the "automobile
exception" established by the United States Supreme Court in Carroll v. United
States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).*fn1 On the
facts presented, neither of these exceptions to the warrant requirement apply.
[15] We first address the "search-incident-to-arrest"
argument. In Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed.
2d 685 (1969), the United States Supreme Court held that a lawful arrest
justifies the contemporaneous search without a warrant of the person arrested
and of the immediately surrounding area. In New York v. Belton, 453 U.S.
454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), this exemption
from the warrant requirement was extended to automobiles by the Court's holding
that "when a policeman has made a lawful custodial arrest of the occupant
of an automobile, he may, as a contemporaneous incident of that arrest, search
the passenger compartment of that automobile," including any containers found
therein. However, unless the arrestee is a recent occupant of the automobile,
the Belton rule does not apply. See State v. Vanderhorst, 419 So.2d 762 (Fla.
1st DCA 1982).
[16] The determination of whether an arrestee was
a recent occupant must be made on a case by case basis and should be guided
by the rationale underlying the search-incident-to-arrest exception. Therefore,
we examine the facts in this case while keeping in mind the fact that Chimel
permits an arresting officer to conduct a warrantless search "of the arrestee's
person and the area within his immediate control" because of the need to
remove any weapons that the arrestee might seek to use and the need to prevent
the concealment or destruction of evidence. 89 S. Ct. at 2040.
[17] At the time the car was searched, the occupants
who were arrested were in a second floor hotel room some distance away from
the car and had been away from the car for a long enough time to complete
a drug sale and be arrested. While we do not know the exact amount of the
distance or time they were away from the car, we do not need these measurements
to conclude that the car was not within the area of their immediate control.
Thus, the search of the car was too remote in both place and time to be justified
as a search-incident-to-arrest. See also Patrick v. State, 603 So.2d 640
(Fla. 2d DCA 1992)(arrest of defendant for urinating in street behind car
did not justify warrantless search of car's interior in absence of evidence
that defendant was recent occupant of car at time of arrest); State v. Howard,
538 So.2d 1279 (Fla. 5th DCA 1989)(where arrestee had exited and locked car
before he was approached by officer and then arrested, court held search
of car was not incident to arrest).
[18] The state also argues that the officers had
probable cause to believe that the car contained contraband because they
knew that the co-defendants were arriving at the motel for a controlled drug
transaction and witnessed their arrival in the vehicle. The state further
argues that the mobility of the car justified the warrantless search. It
is true that the police may make a warrantless search of a vehicle if there
is probable cause to believe it contains evidence of a crime and it is likely
that, due to exigent circumstances, the vehicle will be unavailable by the
time a warrant is obtained. See Carroll, 267 U.S. 132, 69 L. Ed. 543, 45
S. Ct. 280. However, we do not believe that the officers had probable cause
to search the vehicle. There were no facts presented to support a belief
that there would be additional drugs in the car, and we decline to adopt
a presumption that anyone who drives to a location to make a drug sale leaves
additional drugs in the vehicle. Because we conclude there was no probable
cause to believe that the car contained contraband, we need not address whether
there were exigent circumstances to justify a warrantless search.
[19] Accordingly, the motion to suppress should have
been granted. The case is reversed and remanded with instructions to discharge
the defendant.
[20] PARKER, A.C.J., and BLUE and FULMER, JJ., Concur.
[21] Disposition
[22] Accordingly, the motion to suppress should have
been granted. The case is reversed and remanded with instructions to discharge
the defendant.
Opinion Footnotes
[23] *fn1 If the search of the car was proper under
either exception, then the search of Union's purse was also proper. See State
v. Moore, 619 So.2d 376 (Fla. 2d DCA 1993)(after arrest of car's driver,
police had the right to search passenger's purse found on front floorboard);
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)(the
scope of the search under the Carroll exception includes every part of the
automobile and its contents in which contraband or other evidence of a crime
might be expected to be found.)
Rex Curry
Libertarian Lawyers
Attorney at Law for Appellant
rexy@ij.net
rexatious@hotmail.com
ecurry@interaccess.net
http://members.ij.net/rex/
http://rexcurry.net