Thomas v. State

• Court: Florida Supreme Court
• Writing for the Court: BARKETT
• Citation: Thomas v. State, 614 So.2d 468 (Fla. 1993)
• Decision Date: 07 January 1993
• Docket Number: No. 78055,78055
• Parties: 18 Fla. L. Week. S46 Carl L. THOMAS, Petitioner, v. STATE of Florida, Respondent.

Page 468

614 So.2d 468

18 Fla. L. Week. S46

Carl L. THOMAS, Petitioner, v. STATE of Florida, Respondent.

No. 78055.

Supreme Court of Florida.

Jan. 7, 1993.

Rehearing Denied March 23, 1993.

James B. Gibson, Public Defender, Barbara L. Condon and Michael S. Becker, Asst. Public Defenders, Daytona Beach, and Steven G. Mason of Law Offices of Steven G. Mason, Orlando, for petitioner.

Robert Butterworth, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for respondent.

James T. Miller of Florida Ass'n Of Criminal Defense Lawyers, Jacksonville, amicus curiae for petitioner.

Dennis E. Lyles, City Atty., Robert Scott Walker, City Prosecutor, and Karen E. Black-Barron of City of Fort Lauderdale Mun. Prosecutor, Fort Lauderdale, and Kraig A. Conn, Asst. Gen. Counsel of Florida League of Cities, Inc., Tallahassee, amici curiae for respondent.

BARKETT, Chief Justice.

We have for review Thomas v. State, 583 So.2d 336 (Fla. 5th DCA 1991), in which the lower court certified two questions of great public importance: ¹

1) Can a city enforce a municipal ordinance requiring the existence of safety equipment on a bicycle ridden in the city limits by arresting a person who violates the ordinance?

2) Did the repeal of section 165.19, Florida Statutes (1973) eliminate a city's previously granted power to enact ordinances which prohibit various types of conduct by individuals within its jurisdiction, and which punishes violators by "criminal means": arrest; fines; imprisonment?

We answer the certified questions in the context of the specific factual situation presented in this case.

On the morning of June 16, 1989, an Orlando Police Department officer was patrolling a predominantly black neighborhood known for drug activity when he saw Petitioner Carl Thomas riding a bicycle that was not equipped with a bell or gong as required by city ordinance. The officer stopped Thomas and arrested him for violation of the ordinance. Incidental to the arrest, the officer searched Thomas and found a handgun in his pocket. Thomas was charged with carrying a concealed firearm in violation of section 790.01, Florida Statutes (1987).

Thomas moved to suppress the seized evidence on various grounds, including that it was the result of an illegal and warrantless search, that the ordinance was preempted by state statutes, that he could not be arrested for violation of a municipal ordinance, and that the ordinance was unconstitutional. The motion to suppress was denied. Thomas entered a plea of nolo contendere to the charge of carrying a concealed firearm and reserved the right to appeal the denial of his motion to suppress. The Fifth District Court of Appeal, en banc, affirmed the conviction and found the ordinance to be constitutional. The court's decision was amended at Thomas' request to add the two certified questions. ²

Turning to the first certified question, we note that violations of traffic offenses, except in certain situations not relevant here, are "noncriminal infractions" subject to civil penalties. Secs. 318.14, 316.655, Fla.Stat. (1989). An "infraction" is defined as "a noncriminal violation which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel." Sec. 318.13(3), Fla.Stat. (1989).

Bicycles are regulated in chapter 316, Florida Statutes (1989), the Florida Uniform Traffic Control Law. The stated purpose of chapter 316 is to "make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities." Sec. 316.002, Fla.Stat. This section notes that municipalities are authorized in section 316.008 to enact supplemental measures to "control certain traffic movement or parking in their respective jurisdictions." Id. Bicycles are listed in section 316.008(1)(h) as one of those subjects that municipalities are permitted to regulate on the streets and highways under their jurisdictions within the reasonable exercise of the police power. With the exception of the regulations permitted by section 316.008, local governments are specifically prohibited from passing or attempting to enforce any ordinance in conflict with the provisions of chapter 316. Sec. 316.002, Fla.Stat. (1989).

Municipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute. As this Court stated in Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972), "[a] municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden." Although municipalities and the state may legislate concurrently in areas that are not expressly preempted by the state, a municipality's concurrent legislation must not conflict with state law. City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla.1981). While a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state. Edwards v. State, 422 So.2d 84 (Fla. 2d DCA 1982).

As discussed above, the legislature in chapters 316 and 318, Florida Statutes, has determined that traffic violations, including those relating to bicycles, should be punished by civil penalties. A city may not enact an ordinance imposing criminal penalties for conduct essentially identical to that which has been decriminalized by the state. Therefore, we find that the penalty imposed by the Orlando ordinance is in conflict with state law.

In answering the specific question of whether the city may "arrest" a person for violating a bicycle bell ordinance, it is appropriate to define what is meant by "arrest." Section 901.15(1), Florida Statutes (1989), provides that "[a] law enforcement officer may arrest a person without a warrant when ... the person has violated a municipal or county ordinance in the presence of the officer."

The term "arrest" generally is defined as follows: "To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand." Black's Law Dictionary 109-10 (6th ed. 1990). "Arrest" has been used loosely in our cases to apply not only to situations in which the person detained is suspected of committing a crime, but also to situations in which a person is "arrested" for a noncriminal infraction. See, e.g., State v. Parsons, 569 So.2d 437 (Fla.1990) (using the term "arrest" to apply to a situation in which an individual was stopped by the Florida Marine Patrol for a traffic violation). As Judge Harris noted in the court below, the term "arrest" as it relates to violation of a municipal ordinance can be construed as meaning "to detain for the purpose of issuing a ticket, a summons or a notice to appear." Thomas, 583 So.2d at 346 (Harris, J., dissenting). Therefore, "arrest" as it is used in section 901.15(1) does not necessarily mean a full custodial arrest and incident search.

This Court has stated that while a law enforcement officer clearly is entitled to stop a vehicle for a traffic violation, the stop must last no longer than the time it takes to write the traffic citation. Cresswell v. State, 564 So.2d 480, 481 (Fla.1990). Other courts also have noted the unreasonableness of full custody arrests for minor infractions. In Barnett v. United States, 525 A.2d 197 (D.C.Ct.App.1987), that court held that it was unreasonable under the Fourth Amendment for police to effect a full-custody arrest accompanied by a body search after stopping an individual for violating the traffic regulation of "walking as to create a hazard."

In the case at hand, it is hardly reasonable to subject this Petitioner, who rode a bicycle without a bell, to a full custodial arrest accompanied by a body search and a potential jail sentence. We agree with the Ninth Judicial Circuit's construction of the Orlando ordinance in Powers v. State, 45 Fla.Supp.2d 31 (Fla. 9th Cir.Ct.1990):

By making it a crime to operate a bicycle without a bell the City has made wholly innocent conduct the subject of criminal prosecution. It has provided the police with unfettered power to arrest and search citizens engaging in ordinary and customary behavior with no unlawful intent. It has created an ordinance which is susceptible to arbitrary and discriminatory enforcement....

While the City of Orlando may have some legitimate interest in supplementing existing bicycle regulations, it cannot accomplish this goal by adversely impacting the fundamental rights and freedoms of its citizens.

Id. at 33.

We hold that when a person is charged with violating a municipal ordinance regulating conduct that is noncriminal in nature, such as in the traffic control area, section 901.15(1) only permits a person to be detained for the limited purpose of issuing a ticket, summons, or notice to appear. A full custodial arrest in such situations is unreasonable and a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution.

In so holding, we are cognizant that the United States Supreme Court has upheld a search incident to a custodial arrest for a traffic violation. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). We also note that the Court in Robinson specifically declined to reach the question of whether a search would be appropriate when a police officer makes "a routine traffic stop," i.e., when the violator is issued a citation or notice to appear and is allowed to proceed. 414 U.S. at 237 n. 6, 94 S.Ct. at 477 n. 6. Because the latter scenario is all that is permitted by state traffic laws regulating bicycles, Robinson and Gustafson are not controlling.

However, we agree with the court below that the...