Nealy v. State, 80-1253

• Citation: 400 So.2d 95
• Decision Date: 09 June 1981
• Docket Number: No. 80-1253,80-1253
• Parties: Sherman NEALY, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 95

400 So.2d 95

Sherman NEALY, Appellant, v. The STATE of Florida, Appellee.

No. 80-1253.

District Court of Appeal of Florida, Third District.

June 9, 1981.

Rehearing Denied July 17, 1981.

Flynn, Rubio & Tarkoff and Michael H. Tarkoff, Miami, for appellant.

Jim Smith, Atty. Gen. and Susan C. Minor and Joel Rosenblatt, Asst. Attys. Gen., for appellee.

Before HENDRY, SCHWARTZ and NESBITT, JJ.

HENDRY, Judge.

Appellant Sherman Nealy seeks to overturn the trial court's ruling which denied his motion to suppress evidence obtained by a police officer who was performing a so-called "inventory" of his automobile subsequent to his arrest on a charge of operating a motor vehicle with a suspended driver's license. The trial court's ruling was entered at a probation revocation hearing instituted as a result of an affidavit of violation of probation charging Nealy with: (1) operating a motor vehicle with a suspended license ¹ and (2) possession of a controlled substance, to-wit: cocaine. ² At the revocation hearing, the state stipulated to the dismissal of the driver's license charge, and the court found Nealy in violation of probation ³ on the possession of controlled substance charge, revoked probation, and sentenced him to four years in the state penitentiary. We have jurisdiction. Art. V, § 4(b)(1), Fla.Const.

Upon a careful review of the record and the facts presented, we find that the warrantless "inventory" search was unreasonable and the use against appellant of the fruits of the search violated his rights guaranteed by Article I, Section 12 of the Florida Constitution. We further determine that the application of the exclusionary rule is mandated in these proceedings, and requires reversal of the challenged ruling.

On March 31, 1980, at about mid-day, appellant was stopped for a traffic violation, making an illegal U-turn, in the City of Opa Locka. The police officer, checking his driver's license, received information that the license was suspended, and informed appellant that he was placing him under arrest for this charge. The officer asked for proof of ownership of the automobile, and when appellant opened his glove compartment and produced the registration, the officer saw "a large amount of U.S. currency" inside. He then requested a back-up so that, as he said, he "would have a witness with him when he counted the money." After placing appellant in the back of the police car, the officer asked him if he wanted his car towed or left on the scene, and appellant replied that he wanted it left. The officer nevertheless proceeded to "inventory" the contents of the car because, he testified, this was required by departmental policy, especially if there was a large amount of property in the vehicle. (He did not indicate that it would be necessary to impound the vehicle under after he had taken the "inventory".) During the "inventory," a small plastic container was discovered on top of the sun visor on the driver's side of the vehicle. The officer was unable to determine its contents until he had opened it; he then saw that it contained a white powder, apparently cocaine. The container and its contents were impounded and appellant was further placed under arrest for this charge (possession of controlled substance). At some point during these occurrences (the record is unclear as to exactly when), appellant's brother, who apparently lived nearby, came on the scene but was told to leave by the officers. Appellant was not allowed to speak to him, nor did the officers speak to him about his brother.

The question of the legality vel non of a police "inventory" of an arrestee's vehicle has often been considered by our Florida courts in recent years and the criteria against which the police action is to be measured have been well defined in our Florida jurisprudence.

The proper test to apply initially in determining the validity of an inventory search of an arrestee's vehicle in this state, and the one which we employ here, is set forth in the case of Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1976) Thus necessity has always been considered by this court to be a threshold requirement to validate a warrantless nonconsensual search of an automobile where the search was beyond that incident to a valid arrest and one not based upon probable cause.

335 So.2d at 628 (emphasis supplied).

Additionally, since an "inventory" is by definition a search performed in connection with lawful impoundment of a vehicle, the question of whether police custody of the vehicle was itself lawful (and necessary) must also be answered in the affirmative in order to uphold the instant inventory. See State v. Sanders, 387 So.2d 391 (Fla. 2d DCA 1980); Altman v. State, supra; Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976); Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976). Because the questions of necessity for the inventory and lawfulness or necessity for the impoundment are interrelated, we shall consider them together.

The following factors have been held to constitute necessity or otherwise provide support for an inventory and impoundment of an arrestee's vehicle: (1) where the vehicle's location is a hazard or nuisance to traffic, ⁴ (2) where the vehicle is owned by someone other than the arrestee, to protect against claims of loss or damage by the true owner, ⁵ and (3) where the vehicle is subject to forfeiture. ⁶

Sub judice there is no indication that appellant's car was in any way a hazard to traffic. The fact that the officer asked whether appellant preferred to leave the car where it was or have it towed to the station necessarily implies that its location was not a factor in the inventory. Nor is there any support in the record for the existence of the latter two factors.

Another factor arguably in support of the need for inventory and impoundment (and the one on which the state relies herein) is that of safeguarding an arrestee's property against loss and/or the police against claims of loss. ⁷ This factor has been strongly qualified by our Florida courts and although some weight has been given to the police officer's good faith and intent in performing an inventory under this rationale, the prevailing view in Florida is that this "protective" factor, without more, is insufficient justification ⁸ where the arrestee is willing to take responsibility for leaving his vehicle at the location of the stop, or where alternative means are available to accomplish the protective function. Miller v. State, (Fla.1981) (Case No. 56,831, opinion filed May 28, 1981); Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976). ⁹ Recognized alternative means include, for example, authorization by the arrestee for a friend who is present, or a towing service, to remove the vehicle to an appropriate location, Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1976); Chuze, supra.

It appears from the instant facts that the police ignored the possibility that appellant's brother may have been able to assist in removing the vehicle. Additional alternatives appropriate in light of appellant's willingness to take responsibility for leaving his vehicle, were also apparently ignored, to-wit: simply locking and securing the vehicle, locking the money in the trunk of the vehicle, or removing the money to the police station for safekeeping. ¹⁰ It thus appears that the most intrusive and, we find, unwarranted course of action was chosen, and the attempted justification of the search under the "protective" rationale simply will not suffice to remove the search from the recognized rule that "(a)n 'inventory' search will be unreasonable if it is utilized as a pretext to conduct an 'exploratory' search in order to hunt for incriminating evidence." State v. Jenkins, 319 So.2d 91, 93 (Fla. 4th DCA 1975).

Because we find no justification to support the search here in question as a lawful inventory, (and it is not contended, nor could we so find, that this search falls within any of the other recognized exceptions to the warrant requirement), we now consider whether the exclusionary rule applies to prevent the use of the fruits of the illegal search against appellant in a probation revocation proceeding.

Florida law on this question has undergone a permutation in the last few years; the present view being that the exclusionary rule does so apply. ¹¹ Article I, Section 12 of the Florida Constitution provides that the fruits obtained in an illegal search "... shall not be admissible in evidence." This provision has been interpreted as "an express constitutional exclusionary rule," which should be applied in probation revocation proceedings as well as original criminal prosecutions. Grubbs v. State, 373 So.2d 905, 909 (Fla.1979); also see Huppertz v. State, 399 So.2d 992 (Fla. 3d DCA 1981); State v. Dodd, 396 So.2d 1205 (Fla. 3d DCA 1981) (Case Nos. 80-322, 80-499, opinion filed April 21, 1981); Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980). But see Croteau v. State, 334 So.2d 577 (Fla.1976).

Because we find both that the search of appellant's automobile was an unreasonable one and that the exclusionary rule applies, reversal is required. Since our ruling on these points is determinative, there is no need to consider the other point raised on appeal, i. e., whether ownership of the contraband in question was properly attributed to appellant.

The order appealed is hereby

Reversed.

1 § 322.34 Fla.Stat. (1979).

2 § 893.03(2)(a)(4) Fla.Stat. (1979).

3 Appellant had originally been charged by information on June 26, 1976 with two counts of possession of controlled substances (heroin and cocaine) in violation of § 893.03 Fla.Stat. (1975), was later charged on October 27, 1977, with possession of unlawful sale of a controlled substance (heroin) in violation of § 893.03 Fla.Stat. (1977), and on February 13, 1978, was placed on five years' probation with a special condition that he serve one year in the county...