State v. McLaughlin

• Decision Date: 05 July 1984
• Docket Number: No. 83-1000,83-1000
• Citation: 454 So.2d 617
• Parties: STATE of Florida, Appellant, v. Timothy Kevin McLAUGHLIN, Appellee.
• Court: Florida District Court of Appeals

Page 617

454 So.2d 617

STATE of Florida, Appellant, v. Timothy Kevin McLAUGHLIN, Appellee.

No. 83-1000.

District Court of Appeal of Florida Fifth District.

July 5, 1984.

Rehearing Denied Aug. 22, 1984.

Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellant.

Stuart I. Hyman of NeJame & Hyman, P.A., Orlando, for appellee.

COBB, Chief Judge.

The state appeals a suppression order arising from a unique factual background. The facts adduced at the suppression hearing below reveal the following:

On January 12, 1983, between 11:00 P.M. and midnight, Officer Little of the Sanford Police Department was driving his patrol car through the parking lot of a condominium complex which connected with an adjoining street when he saw a small box in an undesignated parking space. He stopped his car and shined a flashlight on the box, which appeared to him to be a "money box." He picked it up and determined it to be rather heavy. He shook the box, which was locked, and heard what sounded like coins. As Officer Little was taking the box to his patrol car, a car approached and the defendant, McLaughlin, exited the passenger side and asked Little if he had just found the box. The officer stated he had, whereupon McLaughlin said the box and its contents were his. Little then asked him what was in the box and McLaughlin responded that it contained money belonging to him. Little asked McLaughlin if he had a key to the box and McLaughlin told him he did not have one with him or at his apartment, but that his brother had a key. During this conversation, McLaughlin told Little that he lived in the condominium complex where the box was located. After taking down McLaughlin's name and address from his license, Little told him he was taking the box to the police station and would return it to him when he could produce a key and identify the contents.

Little then left the parking lot and drove to a convenience store where he met his sergeant. After they discussed how they would determine ownership of the box, Little drove to the police station, where he got a ring of keys from his own car, returned to the patrol car and tried the keys in the box lock. At this point, he did not have an inventory checklist. He opened the box with one of the keys, and discovered two zip-lock type clear bags in the box, one containing a white powder and the other a hard substance. He felt the contents were drugs. He closed the box, brought it into the police station and contacted his supervisor. When his supervisor arrived, they opened the box but no inventory was made then. An inventory was made when Officer Little gave the box to the custodian in the morning. Officer Little said that had McLaughlin produced a key at the scene and unlocked but not opened the box, he would have "probably" given the box to him. However, later he indicated that he would have wanted McLaughlin to identify the contents.

Presented with the foregoing, the trial court rendered the following order of suppression, from which the state appeals:

ORDER

THIS CAUSE came on for consideration pursuant to the Defendant's Motion to Suppress and the Court having heard testimony, argument of Counsel and having read a number of Appellate Court decisions and the Court being fully advised in the premises finds as follows:

1. That the box containing the cocaine was found in the common area of the condominium association in a parking space in front of Defendant's residence. The parking space was not designated as Defendant's parking space but was in the vicinity of the condominium unit where he resided. This area, while not a private area for Defendant, was not a public area since it was in the common area for all residents of the condominium association.

2. In order to establish a zone of privacy upon which the government may not intrude without first obtaining a Search Warrant, a person must show an actual expectation of privacy in the area in question and that the expectation of privacy is in an area that society is prepared to recognize as reasonable. State v. Parker, 399 So.2d 24 (Fla. 3d DCA 1981). Since the area in which the box was found was a common area as opposed to a public area the Defendant had a reasonable expectation of privacy.

3. The contents of the box were not in plain view. The box was searched by the police at the Sanford Police Department after taking the box from the condominium area. The search of the box was not a valid inventory or protective search for which a Search Warrant would not be required. The box could have been reasonably sealed, inventoried and stored pending issuance of a Search Warrant since the police had complete control over the box. State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979).

4. The police had no probable cause to believe that the box constituted contraband, instrumentalities or evidence of a crime.

5. Considering the totality of the circumstances, the Court specifically finds that the box had not been abandoned, that the Defendant had a reasonable expectation of privacy and that there was no probable cause for a search of the box without a Search Warrant. It is, therefore,

ORDERED AND ADJUDGED that the evidence, to-wit: cocaine found in the box be and the same is hereby suppressed.

DONE AND ORDERED in Chambers, at Sanford, Seminole County, Florida, this 17th day of June, 1983.

The state first argues on appeal that McLaughlin lacked standing to assert his motion to suppress because he had no legitimate expectation of privacy in the condominium parking lot, which was open and accessible to multiple persons, including Officer Little. This argument is specious, however, because McLaughlin, as the asserted owner of the locked box, would have an owner's reasonable expectation of privacy as to its contents. Based on that assertion, he has standing to challenge the impoundment of the box and the consequent search of its contents. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The real issue in this cause is set forth in the state's second point on appeal, to-wit: whether the box was legally seized and inventoried as lost (or abandoned) property. The state concedes that seizure and search of the box cannot be based on probable cause to believe a crime had been committed and that no search warrant could have been obtained. Instead, it argues that the box was lost property and that the contents were inventoried in an administrative search to ascertain the true owner. Purely administrative searches conducted to merely record the contents of a parcel are a recognized exception to the warrant requirement, says the state, relying primarily on two United States Supreme Court cases: Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), and South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

The appellee argues that the box was not lost or abandoned property because McLaughlin claimed it almost contemporaneously with its discovery by the police, and it was located in the parking lot of the condominium complex where he lived, thus giving him an expectation of privacy in regard to the location where it was found. Claiming an analogy between a motor vehicle and the box in the instant case, the appellee cites to a number of Florida vehicle cases ¹ for the proposition that the mere fact that a motor vehicle is left temporarily unattended does not give police the right to search it. This analogy fails, however, because an unattended automobile, absent peculiar circumstances, does not give rise to a reasonable inference that the automobile is lost or abandoned property.

McLaughlin also cites to State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979), for the proposition that luggage securely in the control of the police cannot be the subject of a Chimel ² search incident to arrest or a Chambers ³ automobile exigency search. The viability of Southwell is doubtful in view of the principles subsequently enunciated in Lafayette. In Lafayette the defendant, who had been arrested for disturbing the peace, arrived at the police station carrying a purse-type shoulder bag. There, the contents of the bag were inventoried by the police, revealing contraband pills. Lafayette was charged with possession of the pills, but succeeded in the state courts of Illinois in suppressing the pills as evidence on the basis that the warrantless inventory search was illegal. Lafayette argued that his privacy interest in the shoulder bag was greater than in an automobile, thus distinguishing Opperman; he also contended that the state's legitimate interests could have been met in a less intrusive manner by sealing the shoulder bag in some manner and keeping it in a locker.

On discretionary review, the United States Supreme Court upheld the search and said:

Our prior cases amply support this conclusion. In South Dakota v. Opperman, supra, we upheld a search of the contents of the glove compartment of an abandoned automobile lawfully impounded by the police. We held that the search was reasonable because it served legitimate governmental interests that outweighed the individual's privacy interests in the contents of his car. Those measures protected the owner's property while it was in the custody of the police and protected police against possible false claims of theft. We found no need to consider the existence of less intrusive means of protecting the police and the property in their custody--such as locking the car and impounding it in safe storage under guard. Similarly, standardized inventory procedures are appropriate to serve legitimate governmental interests at stake here.

The Illinois court held that the search of respondent's shoulder bag was unreasonable because "preservation of the defendant's property and protection of police from claims of lost or stolen property 'could have been achieved in a less intrusive manner.' For...