Ackles v. State, 71--323

• Court: Court of Appeal of Florida (US)
• Writing for the Court: OWEN; WALDEN; MAGER; MAGER
• Citation: 270 So.2d 39
• Parties: Robert Churchill ACKLES, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 71--323,71--323
• Decision Date: 12 December 1972

Page 39

270 So.2d 39 Robert Churchill ACKLES, Appellant,
v.
STATE of Florida, Appellee. No. 71--323. District Court of Appeal of Florida, Fourth District. Dec. 12, 1972.
Rehearing Denied Jan. 5, 1973.

Page 40

Lester J. Quartel of Sandstrom & Hodge, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Andrew I. Friedrich, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, Judge.

Robert Churchill Ackles was charged with possession of marijuana. When his motion to suppress the tangible evidence was denied, he entered a plea of nolo contendere and was placed on eighteen month's probation with adjudication and sentence withheld.

The only question of appeal is whether the court should have granted appellant's motion to quash the tangible evidence on the grounds that the same was seized as a result of an illegal search. Appellee contends that the question is not properly preserved for appellate review because the nolo plea was not made expressly conditional upon the right to appeal the order denying the motion to suppress, as was the case in State v. Ashby, Fla.1971, 245 So.2d 225. We disagree. The record of the proceedings before the court at the time of the entry of the plea affirmatively shows that the plea was entered solely because the motion to suppress was denied, and this is a sufficient showing to preserve the defendant's right to challenge such order on appeal following a plea of nolo contendere. State v. Ashby, supra, and Trivette v. State, Fla.App.1971, 244 So.2d 173.

The pertinent facts are as follows: At 3:00 A.M., a police officer of the City of Fort Lauderdale found Ackles asleep in a car bearing Ohio license plates and parked in a 'no parking' zone on Fort Lauderdale beach. Awakened, Ackles was not immediately able to produce any identification or proof of ownership of the vehicle, although he did have in his possession a wallet containig the driver's license of another person which he claimed to have found. He also claimed that his own driver's license and other identification were somewhere in the car. Ackles was then placed under arrest for 'sleeping in a vehicle', (proscribed by ordinance) and, after being searched, was placed in the back of the officer's patrol vehicle. By that time another police officer had arrived. Without either a search warrant or Ackles' consent, the two officers proceeded to search Ackles' vehicle. As a result they found and seized a small quantity of marijuana, the evidence sought to be suppressed. (Parenthetically, the officers also found Ackles' own driver's license and proof of ownership of the car.)

While the constitution prohibits an Unreasonable search of one's person or property, ¹ the courts have consistently held that a warrantless search is not unreasonable (and hence is not constitutionally invalid) if the search is Incident to a lawful arrest. ² Assuming the arrest of Ackles

Page 41

was lawful ³ and that the warrantless search was not upon probable cause, ⁴ the question here is whether the search of the automobile was justified as an incident to the arrest.

A number of years ago our Supreme Court established as a fundamental standard for evaluating incidental searches the test of whether the search is appropriate to the reasonable requirements for effecting the arrest. ⁵ Within this test are two functions which are generally accepted as being served by an incidental search; one is protective, the other evidentiary. In other words, as an incident of a valid arrest an officer may make a Contemporaneous ⁶ search of the arrested person and the area within his Immediate control ⁷ for the purpose of locating weapons by which the officer could suffer harm or the arrestee could make good his escape, ⁸ or to secure fruits, instrumentalities, or evidence ⁹ which would aid in convicting for the Offense which caused the arrest. ¹⁰ Our statutory law acknowledges these as valid objectives in a warrantless search incident to an arrest. ¹¹ However, the authorities which define

Page 42

these objectives also define the limits to which an arresting officer may go in reaching those objectives. ¹² A search which goes beyond the bounds of the test we have outlined is unreasonable and the fruits thereof become inadmissible in evidence ¹³ unless the arresting officer should (while still within the permissible scope of an arrest-based search) discover some indicia of criminal conduct which of itself furnishes probable cause to conduct a more extensive search. ¹⁴

Applying these principles to the question here, i.e., was the search of the automobile 'incident to' appellant's...