State v. K.S.

• Decision Date: 05 March 2010
• Docket Number: No. 2D09-2790.,2D09-2790.
• Citation: 28 So.3d 985
• Parties: STATE of Florida, Appellant, v. K.S., Appellee.
• Court: Florida District Court of Appeals

28 So.3d 985

STATE of Florida, Appellant, v. K.S., Appellee.

No. 2D09-2790.

District Court of Appeal of Florida, Second District.

March 5, 2010.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.

PER CURIAM.

The State appeals an order granting K.S.'s motion to suppress a firearm seized during a search of K.S.'s vehicle and K.S.'s statements to law enforcement relating to his ownership or use of the firearm. Because the circumstances surrounding K.S.'s arrest did not justify a search incident to a lawful arrest, we conclude that the search was unreasonable and that the trial court properly granted the motion to suppress based on Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Accordingly, we affirm.

At the hearing on K.S.'s motion to suppress, an officer of the St. Petersburg Police Department described the events leading to K.S.'s arrest for fleeing and eluding on the night of January 13, 2009. The officer testified that at approximately 8:48 p.m., he observed K.S. driving a car without headlights turned on. K.S. pulled up to a red light at an intersection, waited five to ten seconds, and then ran through the red light. The officer followed K.S. down an alley where K.S. pulled into a driveway behind a house. Once K.S. stopped the car, the officer activated his lights and directed his spotlight towards the vehicle. K.S. opened and closed the driver's side door, reversed the car towards the officer, and then accelerated away from the officer. K.S. drove into a yard at the end of the alley where he stopped the car. The officer pulled up behind the car, directed his spotlight through the car's back window, and exited his vehicle. He observed K.S. reaching towards the dashboard on the passenger side and ordered K.S. to show his hands and step out of the car. K.S. exited the car, and backup officers arrived. The officer handcuffed K.S., arrested him for fleeing and eluding, and found no weapons on him. The officer then took K.S.'s car keys and used the keys to unlock and open the glove box inside K.S.'s car, where he found a semiautomatic firearm. At the suppression hearing, K.S. testified that he did not agree or consent to a search of the car. Relying on Gant, the trial court granted K.S.'s motion to suppress. This appeal follows.

This court uses a mixed standard of review in considering a trial court's ruling on a motion to suppress. The trial court's "determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review." State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008) (citation omitted). Warrantless searches are per se unreasonable under the Fourth Amendment, "`subject only to a few specifically established and well-delineated exceptions.'" Gant, 129 S.Ct. at 1716 (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). "Among the exceptions to the warrant requirement is a search incident to a lawful arrest." Id. Police may search a vehicle incident to a recent occupant's arrest "only when the arrestee is unsecured and within reaching...