4D05-1504-State v. Waller

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D05-1504

Case Date: 12/14/2005

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT July Term 2005 STATE OF FLORIDA, Appellant, v. JAMES WALLER, Appellee. No. 4D05-1504 [ December 14, 2005 ] PER CURIAM. James Waller was charged with possession of cannabis. He filed a motion to suppress that was granted by the trial court. The State appeals. We reverse. In his motion to suppress, Waller alleged that evidence in his case should be suppressed for six reasons: that the evidence was seized without a warrant; that the evidence was not seized incident to a lawful arrest; that the evidence was not seized incident to any valid consent; that the evidence was not in plain view; that the evidence was seized in violation of his Fourth Amendment rights and Article I, Section 12 of the Declaration of Rights of the Florida Constitution; and that he was unlawfully and pretextually seized and confronted by the police for purportedly drinking a beer while lawfully parked in a place at which he was properly present. Broward County Sheriff's Deputy Eric Weiner testified that on the night of the incident involving Waller he was in a vehicle with fellow detectives Robert Rivera and Patrick White. They pulled into the parking lot of a gas station for no particular reason. Weiner testified that the detectives' attention was drawn to a silver Toyota pickup truck backed in and parked next to another vehicle in the lot because the occupant of the truck appeared to be just sitting in the truck. However, on crossexamination, Weiner also admitted that the detectives watched the pickup truck due to the possibility of a drug transaction. The detectives then noticed that the man sitting in the truck, Waller, appeared to be drinking a beer. The detectives approached the truck and confirmed that

Waller was drinking a Coors Light. Weiner asked Waller to step out of the vehicle and explained that he was under arrest for consumption of alcohol adjacent to a licensed establishment. Weiner explained that consumption of alcohol adjacent to a licensed establishment is an ordinance violation, for which a law enforcement officer can either arrest the offender or issue a notice to appear. Rivera testified that he conducted a patdown search of Waller after Weiner placed Waller into custody and discovered cannabis in Waller's front left pants pocket. White testified that after Waller was secured at the back of the truck, he searched the passenger compartment of the truck. White found a blue container on the front seat in which there were some burnt roaches and a bag of cannabis in the driver's side door. White also indicated that the truck was released to Waller's friend, Peretta, and not towed from the scene. At the motion to suppress hearing, defense counsel asserted the following: Two arguments. One, first it's pretextual based upon what the first policeman said, they were out there looking for something, they were watching two guys standing there that were looking for an excuse, a non-arrestable offense. His testimony was quite clear, that they arrested him because they wanted to do a search. There's no question about what happened here, that's pretextual. Number two, the search of the car isn't valid. They did not search it for inventory, they gave the car to another individual. There was no establishment of that so at the least, the search of the car should be suppressed. He was out of the car. He was in custody. He was away from the car. There was no talk of danger, nothing other than at that time what they found on him, a misdemeanor arrest. It was not a felony arrest at that time, it didn't become a felony until what they found in the car. So I would ask the Court to suppress at least what's in the car if not everything. The State responded to defense counsel's argument: State's response, your Honor, would be that whether or not Mr. Haddad believes this to be a pretextual search, what the officers saw was a crime at the time that gave them
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reasonable suspicion to arrest the defendant during the course of the arrest, which was a valid arrest as far as the State is concerned because it was in violation of the county ordinance, that gave him reason to search the defendant. They did search the defendant, they found marijuana then they continued to search. They searched his car because he had just been taken out of the car and they found more marijuana. The State's position is that the entire incident was correct, was legal and that this motion to suppress should be denied. At the conclusion of the hearing, the trial court ruled on the motion to suppress: Well, I think the arrest was okay. The search of the person was okay, but it wasn't an inventory search to take, you know, to tow the car in. The defendant was already in custody and he wasn't anywhere near where he could get to the car to get a weapon, so that really was not search incident to arrest, that search is no good. The trial court subsequently entered a written order granting the motion to suppress for the reasons stated on the record. "`The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court's factual findings but review legal conclusions de novo.'" Pantin v. State, 872 So. 2d 1000, 1002 (Fla. 4th DCA 2004)(quoting Backus v. State, 864 So. 2d 1158, 1159 (Fla. 4th DCA 2003)). The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Under Article I, Section 12 of the Florida Constitution, "[the] right [to be protected from unreasonable searches and seizures] shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution." See Niemann v. State, 819 So. 2d 166, 168 (Fla. 4th DCA 2002)(quoting State
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v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995))("`[t]his Court is bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions'"). Although law enforcement officers typically need a warrant to arrest an individual, an individual may be arrested without a warrant where: The person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit.

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