Wells v. State, 85-1630

• Decision Date: 21 August 1986
• Docket Number: No. 85-1630,85-1630
• Parties: 11 Fla. L. Weekly 1835 Martin Leslie WELLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1375

492 So.2d 1375

11 Fla. L. Weekly 1835

Martin Leslie WELLS, Appellant, v. STATE of Florida, Appellee.

No. 85-1630.

District Court of Appeal of Florida,

Fifth District.

Aug. 21, 1986.

Sharon W. Ehrenreich, of Law Firm of Huntley Johnson, Gainesville, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

The defendant appeals from a conviction for possession of a controlled substance and the term of probation imposed, having entered a plea of nolo contendere, specifically preserving his right to appeal the denial of his motion to suppress evidence. Because we conclude that the warrantless search was unreasonable and unlawful, we reverse.

The facts are not in dispute. On the evening of Monday, February 11, 1985, Trooper Rodney Adams of the Florida Highway Patrol stopped the appellant for speeding. The appellant exited his vehicle and produced his driver's license and explained to the officer that the car belonged to a friend. The officer ran a license and tag check and verified the accuracy of the statement concerning the ownership of the car, and also determined that the appellant's driver's license had expired. During the course of conversation, Trooper Adams noticed the smell of alcohol upon the appellant's person. After appellant acknowledged that he had been drinking, field sobriety tests were administered to him and the appellant was then arrested for driving under the influence of alcohol. Appellant agreed to take a breathalizer test and Trooper Adams informed him that he would be transported to the machine located at the Florida Highway Patrol Station. The officer testified that the car was parked off the highway, and was not a hazard to traffic.

Before departing to the station, appellant asked Adams if he could retrieve his jacket, which was in the automobile. Adams returned to the car with appellant to be certain that appellant was not going after a weapon. When appellant opened the car door Trooper Adams, using his flashlight, saw what appeared to be a large sum of money lying on the floorboard on the driver's side.

The officer testified that while he wondered about the money, he had no reason to believe that there was any contraband in the car, but because he believed that he had to impound the car he asked for permission to look in its trunk. Appellant first attempted to open the trunk and when unable to do so, gave the key to Trooper Adams who was also unsuccessful. Appellant was told that if the trunk could not be opened with the key, that it may have to be "popped" open. The appellant agreed to this and indicated that he did not know what was in the trunk. Appellant was taken to the Florida Highway Patrol station to take the breathalyzer test and the vehicle was towed to K & S Automotive at approximately 12:30 or 1:00 A.M. The officer never asked for and was never given permission to search the passenger compartment of the car.

Trooper Adams arrived at K & S Automotive at approximately 1:30 A.M. and proceeded to search the car with the assistance of Grover Bryon, an employee of K & S. A search of the interior of the car resulted in the discovery of two marijuana "roaches" in the ashtray. Bryon opened the locked trunk with the key, explaining to the officer that the button had to be depressed as the key was turned. There was only a locked blue suitcase in the trunk. Adams instructed Bryon and another employee of K & S to pry open the locked suitcase. After about 10 minutes, the suitcase was pryed open and a dark colored plastic garbage bag was found inside the suitcase. Adams opened the garbage bag and found inside a quantity of marijuana.

Although the officer throughout his testimony characterized the search as an "inventory search," it is clear that the warrantless search cannot be sustained on that basis. The parked automobile was not a traffic hazard, there was no cause to believe that it contained contraband, and the officer concededly did not advise the defendant of alternatives to impoundment which were available to him. ¹ Miller v. State, 403 So.2d 1307 (Fla.1981); State v. Marini, 488 So.2d 551 (Fla. 5th DCA 1986); Moore v. State, 417 So.2d 1131 (Fla. 5th DCA 1982). The evidence would not support the search on the basis of probable cause because on this point too, the officer conceded that he had none. Nor can the search be supported as one incident to the defendant's arrest, because it was not contemporaneous to the arrest. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); State v. Marini, supra.

The State does not dispute these principles, but does contend, however, that the search was based on consent, a recognized exception to the warrant requirement. The real question thus presented is whether the appellant's consent to look in the trunk of the car included consent to open and search the locked suitcase found in the trunk. If the search of the suitcase (and the passenger compartment) was validly based on consent, the search is not invalidated by the fact that the officer mistakenly characterized it as an inventory search. Padron v. State, 449 So.2d 811 (Fla.1984).

The State relies strongly on State v. Wargin, 418 So.2d 1261 (Fla. 4th DCA 1982) wherein the court extended the rule announced in Ross v. United States, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) to consent searches. In Ross, the Supreme Court held that if a police officer has probable cause to search an automobile, then he is justified in searching every part of the vehicle and all containers found therein that may conceal the object of the search. Id. In Wargin, the Fourth DCA applied this rule to a consensual search and held that consent to search a suitcase automatically extended to a search of all containers therein.

The defendant in Wargin was stopped in an airport by narcotics agents. The defendant gave his consent to a search of his suitcase. In the presence of the defendant, the police searched his suitcase and found a "strangely heavy" Kleenex box. The box was opened and a plastic bag containing cocaine was found therein. The court held that an additional request for consent to search the Kleenex box was unnecessary for once the defendant gave his consent to a search of the suitcase, he consented to the search of all containers therein. The court, without extensive analysis, explained its holding as an extension of the Ross rule to consensual searches.

The Third DCA has considered the same question and has held contrary to the Wargin decision. In State v. Fuksman, 468 So.2d 1067 (Fla. 3d DCA 1985), the defendant, a suspect in the theft of airline tickets, was stopped in his automobile for committing a traffic violation. The law enforcement officer asked the defendant if he could search his car, but did not inform the defendant of the nature of the investigation or the object of the search. The defendant agreed and unlocked the doors. The officer opened the door and picked up the defendant's locked briefcase and opened it, finding the airline tickets.

In appealing the trial court's suppression of the evidence, the State argued that Wargin compelled reversal in that the defendant's consent to a search of his automobile extended to a search of his briefcase. In a well-reasoned opinion, the court re-examined the decision in Ross and held that it did not apply to consensual searches. The court recognized that the considerations upon which the holding in Ross was grounded do not exist in a consensual search:

The foundation of the automobile exception is the existence of probable cause. Ross, 456 U.S. at 807-09, 102 S.Ct. at 2163-64; Caroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). It is the presence of probable cause and the practical considerations which...