Meyers v. State, 82-1277
| Decision Date | 20 April 1983 |
| Docket Number | No. 82-1277,82-1277 |
| Citation | 432 So.2d 97 |
| Parties | John Scott MEYERS a/k/a John Scott Weyers, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Thomas F. Ball, III (Member of the South Carolina Bar), West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
Meyers was convicted of sexual battery. He appeals. We reverse and remand for a new trial.
The reversal hinges primarily upon an illegal search of Meyers' vehicle and seizure therefrom of a strip of cloth six feet in length and two and one half inches wide, which strip was received in evidence over Meyers' objection and despite his motion to suppress. This strip corroborated the victim's version of events.
The critical happenings occurred somewhere around 4:30 a.m. in a motel bathroom with only Meyers and the victim present. Their accounts were at complete variance. The victim testified that, against her will, Meyers forcibly tied her hands behind her back and then tied her to a sink with a cord or piece of cloth whereupon he sexually battered her. Meyers testified that he did not tie the victim. He said that they had consensual sex and that the victim only objected when a different method was attempted whereupon he departed.
Meyers was arrested and his vehicle was searched by Officer Latonia as an incident thereto and for inventory purposes, and items were seized. There is no suggestion of a problem with this procedure. Thereafter the vehicle was towed to Sunny's Wrecker impoundment and there stored. It was locked in a secure area.
Approximately eight hours after Meyers' arrest, without any exigent circumstances, Chief Fitzgerald went to the compound and searched Meyers' vehicle without a warrant, this being the second search. He then seized the cloth strip in question. This was solely justified by the officer as being incidental to Meyers' arrest, a position with which we disagree.
The State contends that the second search of the appellant's vehicle presented no greater intrusion on the appellant's Fourth Amendment rights than did the search incident to the appellant's arrest.
The State's argument ignores the fact that the second search some eight hours after the initial search does not fall into one of the exceptions to the warrant requirement. First, contrary to the State's assertion, this case does not fall into the moving vehicle exception to the warrant requirement found in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In Chambers the Supreme Court was careful to note that the search of an automobile without securing a warrant was not proper in every circumstance. Rather, the court acknowledged that the exception was based on the fact that "the opportunity to search is fleeting since a car is readily movable." (Id. at 51, 90 S.Ct. at 1981). However, in this case the element of mobility was removed because the appellant's vehicle had been impounded.
Secondly, at the time of the second search the appellant had long been within police custody. Therefore, the search did not fall within the holding in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) regarding searches incident to a lawful arrest. This search was not made "contemporaneously" with the appellant's arrest. See State v. Licourt, 417 So.2d 1051 (Fla. 4th DCA 1982); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).
Finally, the subsequent search cannot be justified on the grounds of an inventory search. The vehicle had previously been so searched and Chief Fitzgerald did not make any pretext of an inventory search. South Dakota v. Opperman, 428 U.S. 364 at 369, 96 S.Ct. 3092 at 3097, 49 L.Ed.2d 1000 (1976) and Miller v. State, 403 So.2d 1307 (Fla.1981).
Thus, the second search of the appellant's vehicle at "Sunny's compound" did not fall...
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