Welch v. State, 98-2615.

• Court: Court of Appeal of Florida (US)
• Citation: 741 So.2d 1268
• Docket Number: No. 98-2615.,98-2615.
• Parties: Bruce WELCH, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 15 October 1999

741 So.2d 1268

Bruce WELCH, Appellant,
v.
STATE of Florida, Appellee

No. 98-2615.

District Court of Appeal of Florida, Fifth District.

October 15, 1999.

741 So.2d 1269

James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant

Robert A. Butterworth, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

W. SHARP, J.

Welch appeals from his judgment and sentence for possession of cocaine.¹ He pled no contest to the charge, specifically reserving his right to appeal the denial of his motion to suppress evidence of the cocaine seized during the search of an automobile. We have jurisdiction² and we reverse.

The facts in this case are not in dispute. On March 12, 1998, two police officers, King and Smith, stopped a Cadillac because it had an inoperable tail light. As the officers approached the Cadillac, the driver, Feleshiman Radford, told them he did not have a driver's license, and had never had one. Welch was a passenger in the right front seat.

Officer King took possession of the car keys, and while the officers checked computer records, the car and the two men inside were not free to leave. When the officers got confirmation that Radford had no driver's license, they decided to issue Radford a citation for a second degree misdemeanor for driving a vehicle without a license,³ in lieu of arresting him as they could have done. As part of that process, the officers asked Radford and Welch to step out of the Cadillac and they searched it.

In the process of the search, Smith found a small amount of cocaine wrapped in brown paper on the passenger seat where Welch had been sitting. Welch was arrested. Radford was allowed to walk home or call for a ride. The Cadillac was left where it was parked.

741 So.2d 1270

At the suppression hearing, the officers admitted they had seen no evidence of any criminal activity, and had no probable cause to search the vehicle other than Radford's driving without a license. They believed they had the right to search the vehicle as incident to issuing a criminal citation in lieu of making an arrest

The state cited to section 901.28, which provides:

The issuance of a notice to appear shall not be construed to affect a law enforcement officer's authority to conduct an otherwise lawful search, as provided by law.

The trial court expressed concerns about the constitutionality of this statute, since it could permit searches for trivial traffic infractions, but it declined to hold the statute unconstitutional.

Initially, the state argued at the suppression hearing and on appeal that Welch lacks standing to contest the validity of the search. See, e.g., Fontana v. State, 581 So.2d 585 (Fla.1991) (passenger had no standing to challenge search); State v. Hernandez, 718 So.2d 833 (Fla. 3d DCA 1998) (passenger who was lawfully stopped lacked standing to challenge the subsequent search of the vehicle where he asserted no ownership or possessory interest in the car or its contents); Amoss v. State, 547 So.2d 716 (Fla. 1st DCA 1989) (mere passenger normally does not have standing to contest the search of a car in which he is riding).

However, under the Florida Constitution,⁴ interpretation of Fourth Amendment issues and parallel Florida constitutional provisions are controlled exclusively by the United States Supreme Court interpretations. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Court concluded that the better analysis focuses on the extent to which a particular defendant's rights are infringed, rather than on any concept of "standing." See also Dean v. State, 478 So.2d 38 (Fla.1985).

The stop of an automobile and the detention of its occupants constitutes a seizure of those persons.⁵ Thus a passenger has standing to object to the stop of a vehicle in which he was a passenger since that stop resulted in his seizure. Hernandez; Silverman v. State, 610 So.2d 116 (Fla. 4th DCA 1992); Velez v. State, 554 So.2d 545 (Fla. 5th DCA 1989), rev. denied, 563 So.2d 635 (Fla.1990); Wulff v. State, 533 So.2d 1191 (Fla. 2d DCA 1988); State v. Montano, 527 So.2d 916 (Fla. 3d DCA 1988); Adams v. State, 523 So.2d 190 (Fla. 1st DCA 1988); State v. Beja, 451 So.2d 882 (Fla. 4th DCA 1984), cause dismissed, 469 So.2d 750 (Fla.1985).

Further, if a stop is permissible, as for a traffic infraction,⁶ the stop must last no longer than is reasonably necessary to deal with the situation. In this case, the stop should have lasted no longer than sufficient to give Radford a citation. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). In Florida, the courts have held that a traffic stop must last no longer than the time it takes to write the traffic citation. Thomas v. State, 614 So.2d 468 (Fla.1993); Cresswell v. State, 564 So.2d 480 (Fla.1990); McNeil v. State, 656 So.2d 1320 (Fla. 5th DCA 1995); Joseph v. State, 588 So.2d 1014 (Fla. 2d DCA 1991). There was no basis

741 So.2d 1271

to detain Welch beyond that time or to frisk him for weapons.⁷

The only basis to arrest Welch was the discovery of the cocaine in the area where he had just been sitting in the car. The legality of its discovery depends upon the validity of the search "incident to the issuance of the citation in lieu of arrest" of the driver.

No case law that we have discovered justifies a search of a vehicle under these circumstances. 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). Had the officers in this case arrested Radford, which they could have done,⁸ the search of the vehicle would have been permissible,...