Thomas v. State
| Decision Date | 28 March 1991 |
| Docket Number | No. 89-2549,89-2549 |
| Citation | 583 So.2d 336 |
| Parties | Carl Leroy THOMAS, Appellant, v. STATE of Florida, Appellee. 583 So.2d 336, 16 Fla. L. Week. D2096, 16 Fla. L. Week. 816 |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
EN BANC
Orlando Municipal Ordinance, Chapter 10, Section 10.08, provides:
No person shall ride a bicycle on the streets of the city without having a bell or gong with which to warn pedestrians and drivers of vehicles at street crossings.
Orlando Municipal Ordinance, Chapter 10, Section 1.08 provides that for a violation of the above municipal ordinance the penalty is punishment "by a fine not exceeding five-hundred dollars ($500.00) and/or a definite term of imprisonment not exceeding sixty (60) days."
A law enforcement officer observed the defendant riding a bicycle on a street in the City of Orlando without having a bell or a gong as required by the municipal ordinance. The officer stopped the defendant and arrested him for violation of the municipal ordinance. Incidental to that arrest, the officer searched the defendant and found him to be carrying a concealed firearm on his person. The defendant was charged with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes.
The defendant moved to suppress the seized firearm and argued (1) that the stop was pretextual, (2) that because a violation of the municipal ordinance was not a "crime" he could not be arrested for a violation of the ordinance, (3) that the search was not incidental to an arrest because the defendant was not arrested or cited for violation of the ordinance, (4) that the municipal ordinance, in providing for imprisonment for its violation, was unconstitutional, (5) that the ordinance was being selectively enforced, (6) that the ordinance was unreasonable in light of the fact that state statutes regulating similar matters have been decriminalized, and (7) that the municipal ordinance was invalid in that the The trial court found the stop was not pretextual, that state statutes have not preempted the regulation of bicycles by a municipality, that the ordinance and its penalty were constitutional, reasonable and valid, that the defendant was validly arrested pursuant to section 901.15(1), Florida Statutes, because of a violation of the municipal ordinance, that the search was incidental to a valid arrest, and denied the motion to suppress. The defendant pleaded nolo contendere to the concealed firearm charge, was sentenced to probation, and appeals.
regulation of bicycles was preempted by state statutes.
PRETEXTUAL STOP:
In determining whether a stop is a mere pretext an objective standard is applied to determine if under the facts and circumstances a reasonable officer would have stopped the vehicle absent an additional invalid purpose. Kehoe v. State, 521 So.2d 1094 (Fla.1988); Monroe v. State, 543 So.2d 298 (Fla. 5th DCA 1989); see also, United States v. Smith, 799 F.2d 704 (11th Cir.1986), Cf., Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The trial court found that under the facts and circumstances the stop was not pretextual. The record on appeal reflects competent substantial evidence to support this factual finding by the trial judge. The arresting officer personally observed the defendant riding, on a street of the city, a bicycle not equipped with the required sounding device. Therefore, the finding of the trial court will not be disturbed on appeal. See Reynolds v. State, 222 So.2d 246 (Fla. 3d DCA 1969).
ARREST FOR VIOLATION OF A MUNICIPAL ORDINANCE:
Section 901.15(1), Florida Statutes, provides in relevant part:
A law enforcement officer may arrest a person without a warrant when:
(1) The person has ... violated a municipal ... ordinance in the presence of the officer.
The unambiguous language of this statute shows a clear legislative intent to specifically authorize a law enforcement officer to arrest a person who violates a municipal ordinance in the officer's presence.
Some dissention to long established law results from an erroneous assumption and a deduction based on that assumption. The assumption is that one can be arrested only for the commission of a "crime." The deduction is that if the violation of a municipal ordinance is not denoted or described as a "crime" one cannot be arrested for that violation. The assumption is based on a misunderstanding of the purpose of an arrest. An arrest is the act of legal authority taking actual physical custody of a citizen and is a restraint on that citizen's liberty but it is an error to assume that is the purpose of the arrest. It is not. The purpose of an arrest or apprehension and resulting detention is to cause the detained person to be identified and to be forthcoming to answer some demand, charge or accusation against him. Custody and detention is a consequence, or by-product, of that purpose. An arrest, or any other word describing the same act, is a necessary part of any system which, to be effective, requires a person to be identified and placed under some constraint to appear and participate in a proceeding the result of which may be undesired, without regard to whether that proceeding is denoted to be criminal, or whether one possible undesired result of the proceeding may, or may not, be confinement as a penalty. There is no constitutional prohibition against a statute providing for the arrest of a person violating a municipal ordinance. Whether the term "crime" includes violations of municipal ordinances depends in any state upon the local definition of "crime" and "misdemeanor." Nevertheless, historically, crimes have been generally considered offenses against the state and a state has been construed to mean, literally, the commonwealth in its sovereign capacity. Cities have not been considered sovereignties and, accordingly, violations of municipal ordinances have not been legally classified as Note should be taken of several provisions of the Florida Rules of Criminal Procedure which recognize that violations of municipal ordinances are not considered crimes or misdemeanors; that persons are arrested and held in confinement to answer charges of violations of municipal ordinances and that for such violation they may be subject to imprisonment as a penalty. Rule 3.111(b)(1) provides that counsel does not have to be provided to an indigent person in a prosecution for a misdemeanor or a violation of a municipal ordinance if the judge files a pretrial statement that no imprisonment will result from conviction. Rule 3.125(b) provides that if a person is arrested for violation of a municipal or county ordinance triable in the county, the arresting officer may issue a notice to appear except in six specified circumstances. Rule 3.131(a) provides that "every person charged with a crime or violation of a municipal or county ordinance shall be entitled to pretrial release [from pretrial confinement resulting from arrest] on reasonable conditions."
A lawful arrest establishes the authority for a full search of the person arrested being an exception to the warrant requirement and reasonable under the Fourth Amendment. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Gustafson, 258 So.2d 1 (Fla.1972), affirmed, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). See also D.L.C. v. State, 298 So.2d 480 (Fla. 1st DCA 1974) (). The Supreme Court in Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) held that evidence obtained after a search incident to an arrest in reliance on a municipal ordinance should not be suppressed even when the ordinance is subsequently declared unconstitutional and notwithstanding that the defendant was not charged or tried for violation of that ordinance. The arrest of the defendant in the instant case for a violation of Orlando Municipal Ordinance 10.08 was lawful. Therefore the search of the defendant incident to the arrest was lawful.
CONSTITUTIONALITY OF ORDINANCE:
Article VIII, Sec. 2(b) of the Florida Constitution provides:
Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.
Chapter 166, Florida Statutes, the home rule legislation, implements Article VIII Sec. 2. As a general rule the only constitutional limitation on municipal power is that such power must be exercised for a municipal purpose. Therefore, municipalities are not dependent on the legislature for further authorization. Legislative statutes may be relevant to determine limitations of authority. State v. City of Sunrise, 354 So.2d 1206 (Fla.1978). See also, City of Ormond Beach v. County of Volusia, 535 So.2d 302 (Fla. 5th DCA 1988). A municipality may, under its broad home rule powers, prescribe penalties for violation of its ordinances. See, 1989 Opinion Attorney General, Florida, No. 89-24, (April 21, 1989).
Nor has the defendant demonstrated that the adoption by the City of Orlando of its bicycle bell ordinance (section 10.08) or its penalty (section 1.08) were beyond the grant of powers contained in the charter granted the city by the state legislature.
There is no constitutional or statutory limitation on the city's power to prescribe incarceration as a penalty for...
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