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/
a group that supports "freedom lawyers" who openly advocate re-legalizing
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