Ross v. State

• Decision Date: 18 June 2021
• Docket Number: No. 2D19-2061,2D19-2061
• Citation: 319 So.3d 807
• Court: Florida District Court of Appeals
• Parties: Latonio ROSS, Appellant, v. STATE of Florida, Appellee.

319 So.3d 807

Latonio ROSS, Appellant,

v.STATE of Florida, Appellee.

No. 2D19-2061

District Court of Appeal of Florida, Second District.

June 18, 2021

Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

LUCAS, Judge.

Latonio Ross entered a plea agreement in which he pled guilty to one count of possession of cocaine with intent to sell or deliver, possession of paraphernalia, possession of a controlled substance, and driving while license suspended or revoked. All of the evidence of his drug-related offenses was obtained following the impoundment and inventory search of his car. The circuit court denied his motion to suppress, and now Mr. Ross seeks review of that order in this court.¹ Because there was no record evidence of a standard or directive governing the impoundment of Mr. Ross's vehicle, we reverse.

While driving on road patrol early one afternoon in March 2018, Charlotte County Sheriff's Deputy Matt Hauschild was "running tags" on the vehicles he happened upon. One of the cars he checked was Mr. Ross's Sunbird. Upon running the Sunbird's information, Deputy Hauschild's computer indicated that the tag was invalid, and so Deputy Hauschild conducted a traffic stop.

Mr. Ross drove his car into a nearby public parking lot in Bayshore Live Oak Park. Deputy Hauschild followed him. It was approximately 1:41 in the afternoon. After informing Mr. Ross why he was pulled over, Mr. Ross admitted that his driver's license was not valid but stated he had "been working on trying to get his license fixed." Shortly after that, Deputy Hauschild informed Mr. Ross he was placing him under arrest for driving while his license was suspended.

It was at that point that the present controversy—whether the sheriff's deputy could lawfully seize Mr. Ross's Sunbird—arose. Mr. Ross had driven into a public park. He had locked his car. When Deputy Hauschild asked for consent to search the vehicle, Mr. Ross declined his request. The State presented no evidence that this public park was in a high-crime area or was known for vehicle theft or vandalism or even what its hours of operation were. To the contrary, when the court posed a hypothetical question of whether someone could simply leave their car parked in the lot overnight, Deputy Hauschild replied, "That has happened on many occasions, yes."

Nevertheless, Deputy Hauschild informed Mr. Ross that his car would have to be towed for impoundment. He would later justify his decision to impound the car on his generalized concern that he or the sheriff's department might be held liable if "something" were to happen to the car. But on cross-examination, Deputy Hauschild admitted that in a prior deposition he had testified that "no matter what happened" he was going to be calling a tow truck to impound Mr. Ross's car. In response to the deputy's stated intent of towing his car, Mr. Ross asked if he could call someone to drive the car home for him. Deputy Hauschild agreed, but after fifteen or twenty minutes, when Mr. Ross was apparently unable to get anyone to help him, Deputy Hauschild proceeded to impound the vehicle. At the deputy's direction, Mr. Ross surrendered his keys. Deputy Hauschild then conducted an inventory search and discovered the contraband that gave rise to the first three counts of his prosecution.

The State maintained that the impoundment and inventory search of Mr. Ross's property was pursuant to General Order Number 10.08 of the Charlotte County Sheriff's Office. Deputy Hauschild read the pertinent parts of that General Order into the record:

The purpose and scope of vehicle inventories. [In] the course of duty on a day-to-day basis it is necessary for the protection of the member of the sheriff's office to inventory vehicles being towed or stored. Vehicles which are towed as a result of a crash, abandonment, seizure, incident to arrest or otherwise detained in storage and not in a possession of the owner become the responsibility of the impounding member. The member is liable for the vehicle, the parts and contents. ...

Towing and impounding a vehicle following an arrest[.] [W]hen the operator of a vehicle is arrested in a vehicle or in the immediate vicinity of a vehicle and it's determined that the vehicle is to be impounded for safekeeping.

The General Order also describes what contents and which parts of the vehicle should be inventoried once a vehicle is impounded.² But with respect to the initial decision that precipitates an inventory search—to impound or not to impound—the State put forward no evidence of any standard or criteria which answers that question. Other than the deputy's professed apprehension that "something" could happen to a car parked in a public park's lot "in broad daylight," nothing in this record informs us how the deputy was supposed to make the vital, initial decision to seize Mr. Ross's car.

All of which poses something of a problem.

"When reviewing a motion to suppress, the standard of review for the trial court's application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence." State v. Zachery , 255 So. 3d 957, 960 (Fla. 2d DCA 2018) (quoting Duke v. State , 82 So. 3d 1155, 1157-58 (Fla. 2d DCA 2012) ). Where, as here, the State has engaged in a warrantless search, the State bears the burden to show that the search was legal. Brown v. State , 313 So. 3d 848, 850 (Fla. 2d DCA 2021) (citing Palmer v. State , 753 So. 2d 679, 680 (Fla. 2d DCA 2000) ).

Ordinarily, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted). One such exception, the one we are called upon to consider here, is when it is necessary for a law enforcement officer to impound an automobile and conduct an "inventory search" of its contents.³

An inventory search, as the term implies, is simply a way of viewing and then cataloguing the items the law enforcement agency is seizing when it impounds the vehicle. See, e.g. , Whren v. United States , 517 U.S. 806, 811 n.1, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage."). As the Third District explained, "[a]n inventory search serves the needs of protection of the owner's property, protection of police against claims of lost or stolen property, and protection of police against potential danger from such things as explosives." Rodriguez v. State , 702 So. 2d 259, 262 (Fla. 3d DCA 1997) (citing Colorado v. Bertine , 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) ).

However, lest inventory searches devolve into "a subterfuge to conduct a warrantless search for incriminating evidence," Williams v. State , 903 So. 2d 974, 977 (Fla. 4th DCA 2005) (quoting Caplan v. State , 531 So. 2d 88, 90 (Fla. 1988) ), the impoundment must be done in good faith and "in accordance with the governmental entity's standardized operating procedures," id. at 976-77 (citing Beezley v. State , 863 So. 2d 386 (Fla. 2d DCA 2003) ); see also South Dakota v. Opperman , 428 U.S. 364, 374-75, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (observing that the impoundment and search of an inebriated officer's car was justified in Cady v. Dombrowski , 413 U.S. 433, 436, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), because the Cady Court had "carefully noted that the protective search was carried out in accordance with standard procedures in the local police department, a factor tending to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function" (citation omitted)).

In Patty v. State , 768 So. 2d 1126, 1127 (Fla. 2d DCA 2000), a City of Tampa police officer arrested a man with an outstanding warrant after the man parked a vehicle at a private residence, exited the car, and locked it behind him. Id. After learning that the car was owned by someone else, he arrested the defendant, took the keys from him, and impounded the car, and a fellow officer conducted a search of the car's interior (which revealed a quantity of cocaine). Id. The State argued that the officers were justified impounding the car since the car did not belong to the defendant and it had been parked on private property. Id.

Reversing the trial court's denial of the defendant's motion to suppress, our court explained,

Although the officers may have had good reasons to impound the vehicle, there is no evidence demonstrating that they adhered to standardized procedures when they impounded the vehicle and conducted the search. ... [A]n impoundment and inventory search must be conducted according to standardized criteria. See [ Bertine , 479 U.S. at 374 n.6 ] .... The State did not present evidence concerning such standardized criteria, and thus the trial court made no such finding. Based on the record before us, we are unable to determine whether the impoundment and search were consistent with standardized criteria of the Tampa Police Department. Since these findings are crucial to determining the validity of the inventory search , we reverse the trial court's denial of Patty's motion to suppress the cocaine, and direct the trial court to enter an order granting the motion to suppress.

Id. at 1127-28 (emphasis added).

As is clear from our case law, a law enforcement agency must show that it is operating under a standard of some sort—that is, a directive, a guidepost, a benchmark, a...