State v. Miyasato, 2D00-936.

• Decision Date: 07 March 2001
• Docket Number: No. 2D00-936.,2D00-936.
• Citation: 805 So.2d 818
• Parties: STATE of Florida, Appellant/ Cross-Appellee, v. Andrew MIYASATO, Appellee/ Cross-Appellant.
• Court: Florida District Court of Appeals

805 So.2d 818

STATE of Florida, Appellant/ Cross-Appellee, v. Andrew MIYASATO, Appellee/ Cross-Appellant.

No. 2D00-936.

District Court of Appeal of Florida, Second District.

March 7, 2001.

Opinion on Motion to Stay or Withdraw Mandate October 26, 2001.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellee/Cross-Appellant.

ALTENBERND, Acting Chief Judge.

The State appeals the trial court's order granting Andrew Miyasato's motion to suppress marijuana, which detectives found in his pocket. Mr. Miyasato cross-appeals the trial court's denial of his motion to suppress marijuana and Xanax, which the detectives found in his bedroom desk. We affirm the order of suppression and reverse the order denying suppression.¹ We hold that, when an adult lives with his or her parents and maintains a separate bedroom, the police may not obtain consent to search inside furniture in that bedroom from a parent without first establishing that the parent has equal access and common authority over the contents of that furniture.

Mr. Miyasato was twenty-three years old at the time of these events. He lived in a bedroom in his parent's house with his girlfriend and their infant child. He did not work or pay his mother rent, although he did occasionally purchase food for the household. There was no rental agreement between Mr. Miyasato and his mother.

The facts in this case are well explained by Judge Maloney in his suppression order:

An individual was found to be in possession of marijuana and was arrested by a deputy sheriff. The individual was asked where he got the marijuana and he said that he bought it from the defendant, Miyasato. He gave the deputy Miyasato's address. With this information, other deputies went to that address and found Miyasato and another man playing basketball in the driveway.

The deputies told Miyasato why they were there, asked if he was in possession of any marijuana, and asked for permission to search the residence. Miyasato suggested that they go into the residence so that they could speak with his mother, the owner of the residence.

Once inside the deputy saw, protruding from Miyasato's pants pocket, a portion of a clear plastic bag. He asked what it was and reached down to try to feel it. Miyasato turned away so that the deputy could not feel his pocket and he pulled his shirt out to cover the pants pocket. He also suggested that they leave his mother's presence and step into the garage. When they got to the garage, the deputy grabbed the bag out of Miyasato's pocket and found that it contained marijuana. Miyasato was arrested at that time. Contemporaneous with this activity another deputy was speaking with Miyasato's mother and asked her for permission to search Miyasato's room. She said she did not want any drugs in her house and gave permission for the search of the room. She was not aware, at the time she gave permission, that her son had been arrested. More drugs and money were recovered from [inside a desk in Mr. Miyasato's bedroom].

We affirm the trial court's suppression of the marijuana found in Mr. Miyasato's pocket. The deputy did not have probable cause to either arrest or search Mr. Miyasato at the time that he grabbed the corner of the plastic bag and removed the bag from Mr. Miyasato's pocket. See Harris v. State, 352 So.2d 1269, 1270 (Fla. 2d DCA 1977). The deputy admitted that this search was not intended to be a Terry² frisk. He was not conducting a search for officer safety on the belief that the bulge was a weapon. See State v. Webb, 398 So.2d 820, 824-25 (Fla.1981). The record does not establish a basis to permit this seizure as the result of a "plain feel" during a lawful pat down. See Minnesota v. Dickerson, 508 U.S. 366, 369-70, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Hines v. State, 737 So.2d 1182, 1187 (Fla. 1st DCA 1999). See also T.W.C. v. State, 666 So.2d 217 (Fla. 2d DCA 1995). Even though the officer claimed he saw the corner of a plastic baggie sticking out of Mr. Miyasato's pocket and knew marijuana was often carried in plastic baggies, these facts would give rise to, "at most, a mere suspicion" that it contained marijuana, which was not enough to seize it. See Harris, 352 So.2d at 1270.

The trial court recognized that the seizure of additional evidence from inside the desk was a close issue. At the time the deputies obtained consent to search this room from his mother, Mr. Miyasato was detained on the premises and had given no consent to search his desk. Because Mr. Miyasato was present at the time of this search, we question whether the deputies were authorized to obtain consent to search his room from his mother, at least upon the limited information the deputies received from the mother about her access and control over that room.³ For purposes of this opinion, however, we assume that Mr. Miyasato's mother could authorize a general search of his bedroom. We conclude that the deputies did not establish that she had sufficient authority to permit a consensual search of the contents of Mr. Miyasato's personal desk.

The record simply does not establish that the mother had actual or apparent authority to authorize a search of Mr. Miyasato's personal effects inside his desk. The police did not determine that she owned or used the desk or had regular access to its contents. Even if police had determined that Mrs. Miyasato regularly cleaned the desk drawer, it is questionable whether that would have been sufficient common authority to validate her consent to search it. See Silva v. State, 344 So.2d 559 (Fla.1977) (holding live-in partner's access to defendant's personal closet ["only"] for cleaning purposes did not amount to joint access and control to give her common authority to give valid consent to search closet, regardless of whether the defendant was present or absent). Cf. Preston, 444 So.2d at 943 (reasoning that mother had authority to consent to search of son's open bedroom garbage can because "this was not a closet or bureau drawer.").

In this case, there was no showing of any common authority over the desk that would diminish Mr. Miyasato's expectation of privacy in its contents. Thus, the mother's consent to search could not extend to the interior of his desk because of his reasonable expectation of privacy. Cf. O'Connor v. Ortega, 480 U.S. 709, 717-18, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (holding public employee has reasonable expectation of privacy in his desk); Bateman v. State, 513 So.2d 1101, 1103 (Fla. 2d DCA 1987) (reversing denial of motion to suppress cocaine found in public employee's desk drawer); United States v. Block, 590 F.2d 535 (4th Cir.1978) (holding evidence found in footlocker in son's room not admissible); Holzhey v. United States, 223 F.2d 823 (5th Cir.1955) (holding evidence found in cabinets not admissible); United States v. Blok, 188 F.2d 1019 (D.C.Cir. 1951) (holding evidence found in employee's desk not admissible); United States v. Butler, 495 F.Supp. 679 (E.D.Ark.1980) (holding evidence found in chest of drawers in son's room not admissible); State v. Pinegar, 583 S.W.2d 217 (Mo.Ct.App.1979) (holding evidence found in footlocker in son's room not admissible).

We caution that the adult child in this case was well beyond the age of majority and had established his own family unit, albeit a nontraditional one. In many respects, it is difficult to distinguish his bedroom from the type of independent living quarters that a family may provide for an older family member. If Mr. Miyasato had been an eighteen-year-old high school student who had not yet established independence from his family, the result might be different. We do not have to decide that question today.

Accordingly, we reverse the denial of Mr. Miyasato's motion to suppress the contraband the deputies found in his desk drawer.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

NORTHCUTT and CASANUEVA, JJ., concur.

ORDER ON MOTION TO STAY OR WITHDRAW MANDATE

ALTENBERND, Acting Chief Judge.

The State has filed a motion asking this court to stay the issuance of the mandate in this case while the State seeks further review in the Supreme Court of Florida. Although the State filed its motion to stay mandate more than fifteen days after this court denied the State's motion for rehearing, we grant the motion. We hold that the issuance of mandate in this case was not a ministerial act, and therefore this court has the discretion to withhold issuance of its mandate while the State seeks further review.

On March 7, 2001, this court issued an opinion in this case reversing the trial court's denial of a motion to suppress evidence. State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001). In pertinent part, this court held that the State had not established that Mr. Miyasato's mother had actual or apparent authority to consent to the search of her adult son's personal desk in his bedroom in her home, particularly when the adult son was present and available to give his consent. On May 21, 2001, this court denied the State's motion for rehearing. This court had the authority to issue mandate on June 6, 2001, fifteen days after the denial of rehearing. See Fla. R.App. P. 9.340(b). We did not do so. No judge of this court internally ordered the clerk to stay mandate at any time prior to June 6, 2001.

On June 13, 2001, the State filed a motion to stay or recall our mandate in conjunction with its notice to invoke the supreme court's discretionary jurisdiction. The State asks this court to stay the issuance of the mandate because it is seeking review of the opinion in the Supreme Court of Florida and further proceedings in the trial court might render any further review moot. It is noteworthy that our opinion...