Chapas v. State, 80-694

• Citation: 404 So.2d 1102
• Decision Date: 07 October 1981
• Docket Number: No. 80-694,80-694
• Parties: Vince Alan CHAPAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1102

404 So.2d 1102

Vince Alan CHAPAS, Appellant, v. STATE of Florida, Appellee.

No. 80-694.

District Court of Appeal of Florida, Second District.

Oct. 7, 1981.

Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

Appellant was charged with carrying a concealed weapon, specifically a rifle seized from appellant's automobile. The trial judge denied appellant's motion to suppress the rifle as evidence and appellant pled nolo contendere, reserving his right to review by this court of the denial of his suppression motion. We affirm.

Shortly after midnight, appellant drove into a Sarasota County park which had been closed to the public less than an hour before by county and city law enforcement officers. Appellant ignored a first officer's call to stop, but finally brought his car to a halt when Detective Carroll stopped him.

Upon approaching appellant's car, Detective Carroll formed the opinion that appellant might be intoxicated. The detective ordered appellant out of the car for several field sobriety tests. After appellant failed the tests, Detective Carroll put him under arrest for driving while intoxicated and placed him in a police vehicle.

While the sobriety tests were being conducted, Detective Geary approached appellant's car and looked through the windows, first from the driver's side and then from the passenger's side. He saw a blue blanket on the front seat covering an object which, he said, appeared to be a rifle. However, it was only after Detective Geary put his head through one of the car windows that he was able to see and identify a portion of a rifle barrel which the dashboard had blocked from view outside the window. Detectives Carroll and Geary then opened one of the car doors to get a better look and seized the rifle. Appellant was thereupon arrested for carrying a concealed weapon.

Since our consideration of the arguments in this case, our supreme court and the Supreme Court of the United States have rendered opinions which are pertinent to our discussion.

The state justified the warrantless search and seizure in this case on the ground that the rifle was in "open view." ¹ Appellant countered that if the rifle was in open view, it could not also be considered a concealed weapon prohibited under section 790.01, Florida Statutes (1977). Our supreme court has recently rejected appellant's argument, holding that an object observed by a trained police officer to be a weapon can also simultaneously be a concealed weapon for purposes of section 790.01. Ensor v. State, 403 So.2d 349 (Fla.1981).

Alternatively, appellant argued that the rifle was not in the open view of Detective Carroll because it was not identified as a rifle until the detective impermissibly intruded into the interior of the car by putting his head through the window. Even assuming the rifle was in open view, however, that circumstance would only have supplied probable cause for a search. Ensor v. State, supra. That search was not constitutionally permissible without a warrant unless there were exigent circumstances. We question whether there were such exigent circumstances in this case.

The warrantless search of an automobile based upon probable cause is generally considered to be coupled with exigent circumstances and is often termed the "automobile exception" to the warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Accordingly, where contraband in a lawfully stopped vehicle is observed in open view, an immediate seizure of the contraband may be constitutionally permissible. Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 142 (S.Ct.1980).

We agree that the "automobile exception" to the warrant requirement does not invariably apply simply because an automobile is involved. Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979) (dictum). But see State v. Francoeur, 387 So.2d 1063 (Fla. 5th DCA 1980), and State v. Lopez, 369 So.2d 623 (Fla. 2d DCA 1979). Here, the driver and sole occupant of the automobile had been placed under arrest and was in a police vehicle at the time of the search. The automobile was parked in an area cordoned off by law enforcement officers and was subject to impoundment. Thus there was not the element of mobility which supplies the exigent circumstance in the usual case involving an automobile. There was no risk that the automobile would be moved and the evidence disappear in the time required to obtain a search warrant.

Accordingly, if the constitutionality of the search and seizure in this case rested solely on the existence of probable cause coupled with exigent circumstances, we would have some difficulty finding that there were exigent circumstances. That question no longer confronts us, however. The decision of the Supreme Court in New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d --- (S.Ct.1981), requires that we uphold the search and seizure in this case as a constitutionally permissible search incident to arrest.

In the Belton case, the Supreme Court adopted what it called a "straightforward rule" that the scope of a search incident to an arrest includes the interior of an automobile where the arrestee is the recent occupant of the automobile. While we might not agree that this rule should apply in all cases, and might find that the facts in the instant case are clearly distinguishable from those involved in Belton, ² we believe the Supreme Court in the Belton case has foreclosed the option of determining on a case-by-case basis whether the interior of an automobile is within the scope of a search incident to arrest. We read Belton as establishing a rule applicable to all cases involving the arrest of a recent occupant of an automobile, without regard to the facts in the particular case. The Court said:

(A)s one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments "can only be realized if the police...