State v. Abrams, 89-00247
| Citation | 548 So.2d 820,14 Fla. L. Weekly 2121 |
| Decision Date | 08 September 1989 |
| Docket Number | No. 89-00247,89-00247 |
| Parties | 14 Fla. L. Weekly 2121 STATE of Florida, Appellant, v. Michael ABRAMS, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert A. Butterworth, Atty. Gen., Tallahassee and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellee.
The state appeals the trial court's order granting a motion to suppress. We affirm but certify the question to the supreme court.
Michael Abrams was driving on an interstate highway when Officer Livingston pulled over the vehicle being driven by Abrams for an improper lane change. This was the officer's first knowledge of or contact with Abrams. Livingston asked for and received Abrams' driver's license and registration (rental papers) for the car. Livingston testified that he did not have reason to believe that there was any criminal activity afoot at that time. After looking over the driver's license, Livingston asked Abrams to step from the car and explained to Abrams the drug interdiction program. Livingston then asked Abrams, "Do you mind if I look in the car?" Abrams responded, Livingston testified that Abrams appeared to understand the request and that there were no threats or promises made to induce compliance with the request.
After receiving permission to look in the car, Livingston asked the other occupants of the vehicle to step out of the car. During his search of the vehicle, Livingston found a closed satchel-type purse between the two front seats. Livingston opened the satchel and found papers with Abram's name and a small clear plastic baggie of cocaine powder. Livingston stopped his search at that point, held up the purse, and asked to whom it belonged. Abrams identified it as belonging to him. Livingston then took the keys to the vehicle and unlocked the trunk of the vehicle. The trunk was clean except for a package wrapped in plastic into which Livingston could not see. Livingston used a pen to open the package and saw several pieces of rock cocaine.
Livingston never specifically asked permission to look into containers found in the vehicle or to unlock the trunk. Abrams never withdrew his consent to look in the vehicle nor did he request that the search be terminated. Livingston, in fact, found Abrams to be very cooperative.
Livingston arrested Abrams and the other occupants of the vehicle. Abrams was charged with trafficking and conspiracy to traffic in cocaine. Abrams moved to suppress the cocaine found both inside the bag and in the package in the trunk of the vehicle. The trial court granted the motion and ordered the seized cocaine to be suppressed, finding that the initial stop of the vehicle was justified, that Abrams consented for the officer to look in the vehicle, but that the officer exceeded the scope of Abrams' limited consent.
The central issue of this appeal is whether the driver's consent to look in the vehicle permitted the officer to look inside a closed container within that vehicle. If this consent did not permit the officer's inspection of the contents of the purse, then the search and seizure were illegal, and the contents of the purse and of the package in the trunk of the vehicle were properly suppressed. If, on the other hand, the driver's consent authorized a search of the purse, then the seized cocaine in that purse established probable cause for the officer to search the entire vehicle, including the closed package in the trunk. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
Some recent cases are instructive. In State v. Wells, 539 So.2d 464 (Fla.), cert. granted, 491 U.S. 903, 109 S.Ct. 3183, 105 L.Ed.2d 692 (1989), an officer had consent to open a locked trunk. The officer found a locked suitcase inside the trunk and pried open the suitcase. The supreme court held that the officer exceeded the scope of consent because it was unreasonable for the police to break open a locked or sealed container if the consent did not specifically convey permission to do so. The court relied upon the following colloquy to find that the officer had no actual consent to open the suitcase:
Q. Did [Wells] give you permission to go into the trunk of that car?
A. Oh, yes, no problem, but he said--I said: "Do you mind if I look in your trunk," and he said, "Sure, go right ahead."
* * * * * *
Q. Now, since [Wells] had indicated to you that he did not know what was in the trunk, you really did not extend the questioning to say: "Well, whatever I find in the trunk, is it okay if I look in that, too?"
A. No, I didn't.
Wells, 539 So.2d at 468 n. 3. The Wells factual situation is very similar to the instant case. Upon questioning, Livingston plainly stated that he did not have actual consent to open the satchel, the trunk, or the package found in the trunk. However, the one distinguishing factor in this case is that although the satchel was closed, it was neither locked nor sealed. *
The case of Rodriguez v. State, 539 So.2d 513 (Fla.2d DCA 1989) is also similar. In Rodriguez, an officer asked Rodriguez if he could "look" in the car. The officer found a box...
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State v. Gonzalez
...granted, 491 U.S. 903, 109 S.Ct. 3183, 105 L.Ed.2d 692 (1989); Moreland v. State, 552 So.2d 937 (Fla. 2d DCA 1989); State v. Abrams, 548 So.2d 820 (Fla. 2d DCA 1989). Furthermore, the search was not conducted incident to a lawful arrest, according to the officer's testimony. 2 For these rea......
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