Caplan v. State
| Decision Date | 18 August 1988 |
| Docket Number | No. 71709,71709 |
| Citation | 531 So.2d 88,13 Fla. L. Weekly 461 |
| Parties | 13 Fla. L. Weekly 461 Clark A. CAPLAN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Law Offices of Lane S. Abraham, P.A. and Law Offices of Carl H. Lida, P.A., Miami, for petitioner.
Robert A. Butterworth, Atty. Gen. and Carolyn V. McCann and Alfonso M. Saldana, Asst. Attys. Gen., West Palm Beach, for respondent.
We have for review Caplan v. State, 515 So.2d 1362 (Fla. 4th DCA 1987), because of conflict with Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the opinion below.
The questions presented by this case are (1) whether the police are entitled to conduct an inventory search of a car disabled in a busy intersection when the owner requests assistance in obtaining a towing service, and (2) under what circumstances the observation of hand-rolled cigarette papers inside such a car creates probable cause.
Petitioner was involved in an automobile accident in front of the Hollywood, Florida, police department. An officer from the station approached the scene and, after determining that no one was injured, proceeded to check the petitioner's license and registration. Because petitioner's car was disabled in the middle of a busy intersection, petitioner asked the officer for the name of a towing service. The officer suggested one of the wrecker services used by the police department and agreed to call it while petitioner used the telephone in the police station to obtain other transportation.
During the time petitioner was inside the police station, the officer began filling out an accident tow slip for the tow driver. When he looked into the front windshield of the car for the vehicle identification number, he observed what he described as "several small rolled burnt cigarette wrappings" on the floorboard. The officer concluded that these were marijuana cigarettes, opened the door and discovered baggies of marijuana and cocaine. Petitioner was then arrested and charged with two counts of possession of narcotics.
Petitioner's motion to suppress the evidence was denied by the trial court. On appeal, the Fourth District Court affirmed on two alternative bases: that the police had probable cause to conduct the search, and that the contraband was discovered pursuant to a legal inventory search. We cannot agree that this record supports the district court's conclusion on either basis.
An inventory search, unlike all other theories under which an automobile may be searched, has no connection with any criminal investigation. It occurs as part of the routine administrative process when an automobile is legitimately placed in police custody. It has a caretaking function and is conducted in order to list the items left in the car to protect the owner's property, protect the police against claims or disputes over lost or stolen property, and to protect the police from potential danger. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Inventory searches are not conducted to discover evidence of a crime or prevent wrongdoing. Thus, concerns pertaining to probable cause or warrant requirements are not implicated. The scope of the search is restricted by the boundaries of established police procedure, which curtails arbitrary police intrusion. Id. at 383, 96 S.Ct. at 3104 (Powell, J., concurring).
Although an inventory search does not contemplate a criminal investigation, officers are not required to look the other way if the inventory reveals contraband. Because it is a lawful search, anything found within the legitimate confines of the search may be used as evidence. Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Thus, an inventory search while not made pursuant to a criminal investigation may become one if evidence of a crime is discovered during the taking of the inventory.
On the other hand, an inventory search cannot be used as a mere pretext or subterfuge for a criminal investigation. It cannot substitute for probable cause where none exists. As this Court said in Miller v. State, 403 So.2d 1307, 1312 (Fla.1981):
[T]he police must act in good faith and not use the inventory search as a subterfuge to conduct a warrantless search for incriminating evidence.
See U.S. v. Prescott, 599 F.2d 103 (5th Cir.1979). See also Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987) ().
Thus, a purported inventory search must be examined in light of its purpose. Central to its purpose is the necessity of having the automobile in legitimate police custody. Obviously, there is no need to perform the caretaking function of an inventory when the vehicle is not in the care, custody, and control of the police.
In the present case, the evidence indicates that petitioner had not transferred custody of his wrecked vehicle to the police officer. Merely asking for police assistance in calling a towing service does not constitute surrender of a vehicle. Nor was petitioner's car impounded or otherwise placed in police control. Indeed, the officer's own testimony indicated that his reason for searching the vehicle was his belief that he had probable cause.
Thus, since the search in question was not an inventory search, the sole question is whether the hand-rolled cigarette papers observed by the officer provided probable cause for the search. We conclude that they did not. 1
There is a general consensus among the courts of various jurisdictions that the mere observation of opaque containers, such as the hand-rolled cigarette papers in this instance, will not create probable cause in the absence of other facts. We ourselves have so held in P.L.R. v. State, 455 So.2d 363 (Fla.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1206, 84 L.Ed.2d 349 (1985), which we find to be dispositive of the issue presented here.
In P.L.R., this Court had the opportunity to discuss the case of Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978), which is identical to the case before us today. In Carr, the Second District had held that the mere observation of two hand-rolled cigarettes in an automobile does not in and of itself give rise to probable cause to search that automobile. Id. at 959. See Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981); Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977).
This Court in P.L.R. specifically declined to reject or disapprove the analysis in Carr. On the contrary, we distinguished Carr, Thompson and Harris from several other cases holding that the observation of opaque containers such as hand-rolled cigarettes, combined with other additional factors, created probable cause. 2 See Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 754 (1980); Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979); Tamburro v. State, 343 So.2d 638 (Fla. 4th DCA 1977).
This conclusion is in harmony with the trend apparently followed in many American jurisdictions. Our nation's courts generally have found that the mere observation of hand-rolled cigarettes, which may or may not contain contraband, is not enough to create probable cause without some other element being present. E.g., United States v. Anderson, 401 F.Supp. 996 (E.D.Tenn.1975); Thomas v. Superior Court for County of San Joaquin, 22 Cal.App.3d 972, 99 Cal.Rptr. 647 (1972); People v. Wright, 80 Ill.App.3d 927, 36 Ill.Dec. 311, 400 N.E.2d 731 (1980); People v. Barker, 72 Ill.App.3d 466, 391 N.E.2d 214 (1979); State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983). But see State v. Knowles, 438 So.2d 648 (La.App.), writ denied, 442 So.2d 458 (1983); Commonwealth v. Skea, 18 Mass.App. 685, 470 N.E.2d 385 (1984).
This rule is consistent with the results reached in similar cases involving other containers that could have held either innocent or illegal contents, where nothing indicated the latter. E.g., People v. Huntsman, 152 Cal.App.3d 1073, 200 Cal.Rptr. 89 (1984) (plastic bag); People v. Norman, 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237 (1975) (soft pouch); Christmas v. United States, 314 A.2d 473 (D.C.App.1974) (prescription bottle); Commonwealth v. Phillips, 225 Pa.Super. 126, 310 A.2d 290 (1973) (ornamental smoking pipe).
Courts usually have found that hand-rolled cigarettes created...
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