The Rap Sheet. Norm Wolfinger

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1 The Rap Sheet Legal News for Law Enforcement in Brevard and Seminole Counties March 2003 Volume XIX, Issue 1 Message from State Attorney Norm Wolfinger As our brave brothers and sisters serving our armed forces protect us from harm originating across the sea, our local protectors local law enforcement protect our community from harm from within. Your bravery and willingness to put your life on the line to protect others has never been so visible as it is today. Not only must you, our local soldiers in law enforcement, concentrate on traditional law violations, you must be equally vigilant to guard against foreign terrorism reaching our shores. Be proud of your service, for I guarantee you it is appreciated by your community. I thank you for all you give so selflessly to keep our nation the land of freedom and liberty. Along with our troops overseas, may each of you be kept safe from harm s way. God bless. Norm Wolfinger Basis to Stop a Motor Vehicle by Assistant State Attorney Mary Ann Klein Generally, there are three levels of encounters that law enforcement may have with citizens: 1) consensual encounters, during which the citizen remains free to leave at will, where a citizen may either voluntarily comply with a police officer s request or simply choose to ignore it; 2) an investigatory stop based on reasonable suspicion that a crime has been, is being, or will be committed, or reasonable suspicion that a traffic violation has occurred; and 3) an arrest supported by probable cause that a crime has been or is being committed. In the DUI context, the most common citizen encounter situations involve the officer approaching a parked vehicle. If the officer approaches the vehicle without any outward indication to the occupant that he or she must remain or otherwise comply with the officer s requests, then the situation will mostly likely be deemed an encounter rather than a stop. See, State v. Hughes, 562 So.2d 795 (1 st DCA 1990). If during the course of the consensual citizen encounter, the officer develops reasonable suspicion of DUI or other crime, he may detain the subject in order to conduct further investigation. So too, if the officer develops probable cause to arrest, he or she may arrest the subject.

2 As a general rule, a citizen encounter becomes an investigative stop requiring reasonable suspicion when a reasonable person would believe that they were not free to leave and to ignore the officer. This is so even if the officer had no intent to detain the person. If a citizen is asked to exit a vehicle, this will be deemed an investigative stop. See Popple v. State, 626 So.2d 185 (Fla. 1993). For example, where the officer activated his flashing blue lights when he pulled up behind the defendant s stopped vehicle, and the defendant began to drive onto the roadway but stopped when she saw the flashing lights and a uniformed officer approached her car, this constituted an investigatory stop, notwithstanding the officer s testimony that he activated the lights only as a safety precaution. Additionally, in Taylor v. State, 658 So.2d 173 (5 th DCA 1995) the officer s conduct in pulling up behind a parked car with the motor running in a private driveway, approaching the vehicle, and ordering the driver to turn off his motor and give him his driver s license, without reasonable suspicion that a crime was or had been committed, was an improper seizure of the driver. A police officer may stop a vehicle if he or she observes a traffic violation. Police may also stop a car if there is reasonable suspicion to believe that the occupants have committed, are in the process of committing, or are about to commit a crime. Jones v. State, 806 So.2d 590 (5 th DCA 2002). In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that generally, a traffic stop is reasonable under the Fourth Amendment where the police have probable cause to believe a traffic infraction has occurred. The Court went on to find that the officer s subjective intentions play no role in the Fourth Amendment analysis. Whren was adopted in Florida in the case of Holland v. State, 696 So.2d 757 (Fla. 1997). Thus, the reasonable officer test was rejected and instead a strict objective test was adopted which asks only whether any probable cause for the stop existed regardless of the officer s subjective intent. The use of the terms probable cause and reasonable suspicion have been used interchangeable, but a review of the appellate court decisions in Florida subsequent to Whren make clear that the standard to stop a vehicle is reasonable suspicion not probable cause. For example, in Ellis v. State, 25 FLW D848 (4 th DCA 2000), footnote 1 the Ellis court stated that notwithstanding the language used in Whren, where they talk about probable cause to stop a vehicle, it did not think Whren really was changing the long-standing standard of founded or reasonable suspicion to initiate a Terry stop. In Davis v. State, 788 So.2d 308 (5 th DCA 2001) the 5 th DCA stated in dicta that police officers may stop a person to investigate possible criminal behavior even though there is no probable cause to justify an arrest, as long as the officer has a reasonable suspicion that a person is or has engaged in criminal activity. All that is required for a valid vehicle stop is a founded suspicion by the officer that the driver of the car, or the vehicle itself, is in violation of a traffic ordinance or statute. In State v. Ramos, 755 So.2d 836 (5 th DCA 2000) the court specifically 2

3 recognized that the standard for police to stop a vehicle is reasonable suspicion that the person is or has engaged in criminal activity. In Eldridge v. State, 817 So.2d 884 (5 th DCA 2002), the court explained that if a driver is stopped for the commission of a traffic infraction, he may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation. The time to issue a notice should last no longer than is necessary to write the notice and, when necessary, to make the license, tag, insurance, and registration checks as long as that information can be obtained within a reasonable period of time. However, if the officer delays writing the ticket and engages in purposeless questioning as a delay tactic to allow time for the K-9 unit to arrive, then this can transform a traffic stop into an unreasonable detention lacking reasonable suspicion of any other criminal activity or into an arrest without probable cause. In Maxwell v. State, 785 So.2d 1277 (5 th DCA 2001) an unreasonable detention occurred where the officer asked the defendant over 50 questions during the stop, including where he had worked and questions about drugs and weapons, and the officer made no attempt to finish writing the ticket once he had the necessary information, and the tag check was not run through the computer until 11 minutes after the stop. If the drug dog does alert, then this gives police probable cause to believe that the suspect s vehicle contains drugs and thus probable cause for a search. See State v. Hill, 770 So.2d 280 (5 th DCA 2000); and State v. Robinson, 756 So.2d 249 (5 th DCA 2000). As the case of Roberts v. State, 732 So.2d 1127 (4 th DCA 1999), points out, in the absence of a traffic violation, an officer may stop a vehicle when there is reasonable suspicion that the driver is committing a crime for example, driving under the influence. In Roberts the defendant s continuous weaving, even if only within her lane during the time that she was being followed, presented an objective basis for suspecting that she was under the influence, thus objective facts supported stopping her vehicle. Since most instances involve police stopping a vehicle because they observe a traffic infraction, or because they have reasonable suspicion to believe the driver is impaired, it is important for law enforcement to be aware of the following case decisions: State v. Riley, 638 So.2d 507 (Fl. 1994); Donaldson v. State, 2002 WL 4545, 27 FLW D106 (4 th DCA 2002); and Jordan v. State, 831 So.2d 1241 (5 th DCA 2002). In State v. Riley, 638 So.2d 507 (Fl. 1994), Riley was a passenger in a vehicle that was stopped for failure to use a turn signal when making a right-hand turn. Police arrested Riley for possession of marijuana found after the stop. Riley filed a motion to suppress the evidence arguing that the evidence was illegally obtained because the stop was illegal because no other vehicle was affected by the turn so therefore, no violation of Section , Florida Statutes (1991) occurred. The Florida Supreme Court agreed with this argument. Thus, if no 3

4 other vehicle is affected by a turn from the highway, then a signal is not required by the statute. If a signal is not required, then a traffic stop predicated on failure to use a turn signal is illegal, and any evidence obtained as a result of that stop must be suppressed. In the Donaldson v. State, 2002 WL 4545, 27 FLW D106 (4 th DCA 2002), case the 4 th DCA reversed the trial court s order denying a motion to suppress. The FHP pulled over a defendant for squealing his tires when he pulled out of a parking lot. The officer testified that he thought the defendant might be impaired or was fleeing from the scene of a crime and wanted to stop the defendant and at least give him a ticket for improper starting. The 4 th DCA held the stop invalid. The court also found there was no evidence that the defendant drove in a sufficiently unsafe manner to validate a DUI stop. The court noted that in this case the officer only observed squealing tires, not any erratic driving, and there were no other cars on the road or in the parking lot that would have been endangered by the defendant squealing his tires. Finally, in Jordan v. State, 831 So.2d 1241 (5 th DCA 2002), the defendant was stopped for the traffic violation of failure to maintain designated lane in violation of Florida Statute (1). Upon the stop, cocaine was found. The defendant argued that the stop was unlawful because his driving did not create a safety concern for other traffic. The 5 th DCA agreed that the evidence should be suppressed because the record from the suppression hearing failed to establish that the defendant s vehicular movements, as testified to by the arresting officer, created any danger to himself or other traffic. Nor was there any testimony indicating that the defendant was intoxicated or otherwise impaired, nor was any erratic driving pattern established. Thus in the situations outlined above, where the driver s actions did not create a danger to other cars, the officer will not be justified in stopping the vehicle unless there are other factors also present which give the officer reasonable suspicion to believe that the driver is DUI or otherwise impaired. With regard to non-dui type reasons for stops, one must be mindful that an individual s presence in a high crime area alone is not sufficient to establish a reasonable suspicion to stop a person/vehicle. However, presence in a high crime area coupled with unprovoked flight by the suspect upon noticing the police may be sufficient to find a reasonable suspicion to stop and investigate. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Keep in mind that stopping a car for traffic violations does not give an officer the authority to frisk the driver or other occupants of the vehicle. To frisk anyone following a routine traffic stop, the officer must have a reasonable suspicion that the person is armed with a dangerous weapon. Examples of conduct, which may support a reasonable suspicion that a suspect is armed and dangerous that would authorize a police officer to frisk the suspect after a routine stop for a traffic 4

5 citation, include: (1) the suspect s failure to cooperate; (2) the suspect s furtive movements; and (3) a bulge in the suspect s clothing. Hatcher v. State, 834 So.2d 314 (5 th DCA 2003). What Information Can be Relied Upon to Stop a Car by Assistant State Attorney Mary Ann Klein A question that often arises is, May the police stop a car when they believe the driver s license is suspended? In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court ruled that it is a violation of the Fourth Amendment for an officer to stop an automobile for a license check when there is no articulable and reasonable suspicion that a motorist is unlicensed. What then would constitute reasonable suspicion that the motorist is unlicensed? In State v. Carrs, 568 So.2d 120, 120 (5 th DCA 1990), the officer cited the defendant for driving a vehicle with an expired driver s license. Approximately two days to a week later, the officer again observed Carrs driving. The officer had known Carrs all his life. The officer stopped the defendant, suspecting Carrs had not obtained his new license within that short period of time. The 5 th DCA ruled that the officer s suspicion, based on his familiarity with Carrs, was reasonable. In State v. Leyva, 599 So.2d 691 (3 rd DCA 1992), the 3 rd DCA held that an officer s knowledge of the suspended status of the defendant s driver s license, which was four-to-five weeks old, was not stale on the date of the stop and provided the officer with the reasonable suspicion to make the valid, legal stop. In State v. Wade, 673 So.2d 906 (3 rd DCA 1996), the detective conducted a DWLS record check a little less than two weeks before stopping the defendant, thus his knowledge of the defendant s suspended driver s license was not stale. In State v. Pugh, 635 So.2d 999 (2 nd DCA 1994), the court found that police officers who knew before stopping defendant s car that his driver s license was suspended had probable cause to arrest him. Therefore, cocaine found in the car should not have been suppressed. However, in Moody v. State, 28 FLW S77, 2003 WL (2003), the defendant was convicted of murder. Initial contact with him arose out of a traffic stop initiated by police based on the officer s belief that Moody did not have a valid driver s license. The stop led to evidence tying him to the murder. Before the traffic stop took place, it had been a year or two since the officer had had any contact with Moody and as long as three years since the officer last checked Moody s driving status. The court ruled that the information was stale and therefore there was no basis for the stop, which should have resulted in suppression of the evidence leading to the murder conviction. The cases above all involved officers who knew the defendant and presumably saw the defendant operating the vehicle prior to the stop and knew the status of 5

6 the defendant s driver s license. What if the officer is unfamiliar with the defendant driver? The 5 th District Court of Appeal in Smith v. State, 574 So.2d 300 (5 th DCA 1991), ruled that a police officer could make an investigatory stop of vehicle after determining by radio check that the registered owner did not possess a valid driver s license. In Smith, the officer did not know the registered owner, but because dispatch advised that the owner s driver s license was suspended, he was permitted to stop the car and ascertain whether the driver was licensed. The Smith case has since been cited with authority in Guffey v. State, 796 So.2d 1191, 1191 (Fla.App. 5 Dist. September 11, 2001); and Florence v. State, 819 So.2d 939, 939 (Fla.App. 5 Dist. June 25, 2002). However, the mere fact that a vehicle is registered to someone other than the described owner is insufficient to stop the vehicle to inquire whether possession is lawful. For example, in McCray v. State, 657 So.2d 1 (2 nd DCA 1994), the fact that a young black male was driving a vehicle registered to a white female older than he was, did not provide founded suspicion to support stopping the car. Since many stops result in nothing more than a traffic violation, officers must be familiar with the case of Willis v. State, 762 So.2d 1005 (5 th DCA 2000), which says that a stop for nothing more than a non-criminal offense will not justify a search incident to arrest because it is non-criminal. The exclusionary rule prevents the use of evidence unlawfully seized or discovered from use against the defendant. For years the exclusionary rule did not extend to the defendant s identity. However, in the case of State v. Perkins, 760 So.2d 85 (2000), this changed. The Florida Supreme Court in Perkins held that when an officer unlawfully stops a defendant solely to determine whether he or she is driving with a suspended license, that officer s post-stop observation of the defendant behind the wheel must be suppressed. Ordering Persons Out of the Vehicle by Assistant State Attorney Mary Ann Klein The United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), held that a police officer may ask a driver to exit his vehicle during a lawful traffic stop. The Court reasoned that police safety far outweighed the minimal intrusion on the driver. This is so, even though the police officer lacks any particular reason to believe that the driver possesses a weapon or poses a threat. New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). Furthermore, in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 201 (1983); the Supreme Court extended the principles articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to uphold a protective search of the passenger compartment of a car. The Court concluded that: Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and 6

7 suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Supreme Court extended the Mimms rationale to passengers and held that a police officer may, as a matter of course, order the passengers in a lawfully stopped vehicle to exit the vehicle pending completion of the stop. The Court recalled its balancing analysis under the Fourth Amendment in the Mimms decision and noted that [o]n the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Additionally, Wilson recognized that the officer may order the driver to remain in the vehicle during the traffic stop. These decisions have been recognized and followed in Florida. If a defendant is legally detained for a traffic violation, an officer is authorized to order the driver to exit the car. See Stanley v. State, 559 So.2d 460 (4 th DCA 1990); State v. Bernard, 650 So.2d 100 (2 nd DCA 1995); Mendez v. State, 678 So.2d 388 (4 th DCA 1996); State v. Mahoy, 575 So.2d 779 (5 th DCA 1991). Additionally, the case of Borski v. State, 712 So.2d 787 (4 th DCA 1998), upheld the validity of a police officer s directive that a driver return to his vehicle for the remainder of a lawful traffic stop. This was based upon the balancing analysis of personal liberty versus officer safety that was used in Mimms and Wilson. The 4 th DCA declined to extend Borski to passengers and held that although a police officer may order the passenger to exit the car when conducting a lawful traffic stop, the officer may not, as a matter of course, order a passenger who has left the stopped vehicle to return to and remain in the vehicle until completion of the stop. In order to order the passenger, who has exited the vehicle, to remain at the scene, the officer must have an articulable founded suspicion of criminal activity or a reasonable belief that the passenger poses a threat to the safety of the officer, himself, or others. Wilson v. State, 734 So.2d 1107 (4 th DCA 1999). See also Barrios v. State, 807 So.2d 814 (4 th DCA 2002). Recently, in Faulkner v. State, 28 FLW D241a (2 nd DCA 2003), the 2 nd DCA ruled that a passenger in a vehicle stopped for a traffic violation cannot be ordered to remain in the vehicle. In Faulkner, the defendant attempted to get out of the car, but the deputy ordered him to remain in the vehicle for general safety purposes. The deputy did not suspect the defendant of criminal conduct or of being a threat. Later, during the investigation of the driver, the officer learned that the defendant owned the car and asked for consent to conduct a patdown, 7

8 which resulted in the seizure of paraphernalia. The defendant moved to suppress the evidence arguing that the order to remain in the vehicle was an unlawful seizure, which tainted any consent. The court agreed and concluded that it is illegal to detain a passenger by ordering him to remain in the car, even where the car itself was legally stopped, absent a reasonable suspicion that the passenger has committed a crime or is a threat. When there is not a lawful stop of the vehicle, a police officer may not order the driver out of the car unless he has reasonable suspicion that a crime has been, or is being, committed. For example, if an officer approaches a parked vehicle and immediately orders the driver to exit the vehicle, such order will be viewed as a seizure without reasonable suspicion or probable cause, and the driver s exit is treated as a submission to unlawful authority. See for example, Popple v. State, 626 So.2d 185 (Fl 1993). However, if the officer approaches a parked car in a consensual encounter and has concern for the safety for the driver, there is room to argue that the officer was justified in asking the driver to exit. See Jenkins v. State, 567 So.2d 528 (5 th DCA 1990). Additionally, if the officer has completed a lawful traffic stop and then directs the driver to exit the car then this will ordinarily be viewed as an illegal seizure. In Gilchrist v. State, 757 So.2d 582 (1 st DCA 2000), the officer had stopped the defendant for speeding. After the officer issued the driver the traffic citation, the officer asked the defendant to exit the car. Since there was no reasonable suspicion, and the reason for the traffic stop was concluded, the court found the continued seizure unlawful. There may be occasions when the officer approaches a parked vehicle during a consensual encounter and during that encounter develops reasonable suspicion that the driver is impaired based upon his observations standing outside the vehicle. When this occurs it is important to make clear that the directive to exit the vehicle occurred after the officer had developed reasonable suspicion for a DUI, as this will justify an order to exit. Thus, if a motion to suppress centers around an officer s directive to the driver to exit the vehicle, the first inquiry will be to determine whether a traffic violation or reasonable suspicion for DUI or another crime existed when the order was given as this will justify the order to exit. Search of Automobile Incident to Arrest of Recent Occupant by Assistant State Attorney Mary Ann Klein Belton as defined by Thomas v. State, 24 FLW S478 (Fla. 1999) In Chimel v. California, 395 U.S. 752 (1969), the United States Supreme Court justified the search of an arrestee s person and areas within the arrestee s immediate control as reasonable in order to allow police to remove any weapons which might be used to effectuate an escape and to seize any evidence which might be concealed. The rational of Chimel was adopted in New York v. Belton, 453 U.S. 454 (1981), where the Court permitted a warrantless search of the 8

9 entire passenger compartment of an automobile, including all unlocked containers within, as a search incident to the arrest of an occupant. Belton established a brightline test of what is within an automobile occupant s immediate control. This area is defined as the entire passenger compartment of the automobile and the open and closed containers therein. A hatchback is considered part of the passenger compartment. See State v. Dexter, 596 So.2d 88 (2 nd DCA 1992). It does not include a search of the vehicle trunk or the locked glovebox however. The contents within the passenger compartment include containers without regard to ownership. The only question is whether the container is located in the passenger compartment of the vehicle. See State v. Loftis, 568 So.2d 121 (5 th DCA 1990), which allowed the search of the passenger s purse found in the car, because the purse was located in the passenger compartment and therefore within the driver s access. 1 Belton involved the lawful arrest of a vehicle occupant. This is a requirement for a search under Belton. In Knowles v. Iowa, 525 U.S. 113 (1998), the Court declined to extend Belton to situations where a person is only issued a traffic citation. The Court reasoned that the concern over officer safety and the destruction of evidence in a citation/non-arrest situation is not present and therefore does not justify extending the Belton search exception to non-arrest situations. In Thomas v. State, 761 So.2d 1010 (Fla. Oct. 1999) 2, the Florida Supreme Court defined the limits of Belton by distinguishing between searches of vehicles where the arrested occupant exited the vehicle voluntarily or at the direction of the police. The defendant in Thomas drove up to a home where police happened to be executing arrests. Police arrested the defendant after learning his name and arresting him on an outstanding warrant. Since he had recently occupied the vehicle, police conducted a Belton search resulting in the seizure of drugs. The case of Kavallierakis v. State, 790 So.2d 1201 (2 nd DCA 2001) has read Thomas to require proof that the police contact be confrontational in nature. In Kavallierakis the court found the contact nonconfrontational since the officer greeted Mr. Kavallierakis in a friendly manner while he was exiting the car or moments thereafter. Since the contact was non- 1 It is important to be mindful of the case of Brown v. State, 789 So.2d 1021 (2 nd DCA 2001), which also involved the search of a passenger s belongings in a vehicle. Keep in mind that Brown was not a search incident to arrest. It was instead a consent search where the driver gave consent to search the car. The court found that the driver s consent to search the vehicle did not extend to the passenger s purse when the officer knew the purse belonged to the passenger. 2 The United States Supreme Court initially granted certiorari but later held that the case did not involve a final judgment or decree of Florida s highest court. As a result the Florida Supreme Court decision could not be treated as final for jurisdictional purposes, and thus was not within Supreme Court s jurisdiction. See Florida v. Thomas, 532 U.S. 774, 121 S.Ct. 1905, 150 L.Ed.2d 1 (June 4, 2001). 9

10 confrontational the search could not be justified under Thomas as a search incident to arrest. 3 The Florida Supreme Court in Thomas found that the search of the vehicle did not fall within the Belton brightline rule. The Thomas court adopted the reasoning of the Sixth Circuit Court of Appeals in United States v. Hudgins, 52 F.3d 115 (6 th Cir. 1995). Hudgins allows a Belton search of an automobile where the defendant was in the automobile at the time the officer initiated the contact with him, which led to his later arrest. Where, however, the defendant gets out of the car on his own initiative, not at the direction or as a result of law enforcement contact with him, the automatic search under Belton does not apply. Thus, the court in Thomas held that when a vehicle search is conducted after a defendant has exited a vehicle, Belton s bright-line rule is limited to situations where the defendant has exited the vehicle because of the presence or upon the direction of a law enforcement officer. If Belton does not apply, the trial court must then determine whether the factors in Chimel justify the search... Thomas at 481. Search & Seizure Automobile Exception by Assistant State Attorney Mary Ann Klein The automobile exception to the warrant requirement started with the case of Carroll v. United States, 267 U.S. 132 (1925), hence the coined phrase Carroll Doctrine. Carroll allows the police to stop and search a moving vehicle without a warrant if they have probable cause to believe that the vehicle contains contraband. Due to the ready mobility of the vehicle, the search without a warrant was considered reasonable. In Chambers v. Maroney, 399 U.S. 42, rehearing denied 400 U.S. 856 (1970), the Supreme Court allowed a Carroll search to be conducted later in time at the police station. The fact that the search was not conducted immediately after the stop did not negate the probable cause that existed at the time of the stop. In California v. Carney, 471 U.S. 386 (1985), the Carroll search was extended to allow a probable cause search without a warrant to a motor home that was parked in a public place. The Court reasoned that not only was the vehicle readily mobile but also that vehicles have a reduced expectation of privacy. It is important to note that vehicles include cars, motorhomes, buses, boats, and planes that are capable of being driven. If inserting a key in the ignition cannot readily move the vehicle, the ready mobility rational behind the auto exception does not exist. 3 However Thomas seemed to suggest that a Belton search would be justified if the defendant exited the vehicle after realizing the officers were approaching them even though the officer had not yet directed them to exit the vehicle. Thomas citing with approval State v. Johnson, 696 So.2d 880 (5 th DCA 1997), and United States v. Mans, 999 F.2d 966 (6 th Cir. 1993). 10

11 In United States v. Ross, 456 U.S. 798 (1982), the Court held that a Carroll Search could include a search of a closed container or package found inside the car, even in the trunk of the car, that may conceal the object of the search. Ross allows the search of these containers without a warrant. Ross distinguished the cases of State v. Chadwick, 433 U.S. 1 (1977); and Arkansas v. Sanders, 442 U.S. 753 (1979), which required a warrant for containers within the car by finding that Chadwick and Sanders involved the search of containers within the vehicle that themselves had a heightened expectation of privacy; Chadwick (200-pound, double-locked footlocker) and Sanders (a suitcase). Additionally, in Chadwick and Sanders the police had probable cause to search the container which happened to be in the car as opposed to having probable cause to search the vehicle but not knowing where within the car the contraband was. The case of California v. Acevedo, 500 U.S. 565 (1991), clarified Ross. Distinguishing between a container found after a general search of the vehicle based upon probable cause that the vehicle contains contraband and a probable cause search of a specific type of container which happens to be located in a vehicle and requiring a warrant, the court reasoned, was an impediment to law enforcement without any real protection to privacy interests. Acevedo clearly allows an officer to stop and search a vehicle if there is probable cause to believe that the vehicle contains contraband. The search includes the closed containers within the vehicle where such contraband might reasonably be hidden. Additionally, if police have probable cause to believe that the contraband in question is being stored in a particular container within the vehicle, they may search that container without a warrant. Pursuant to Acevedo, police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence may be located. The Court made clear, however, that even if there were probable cause to search a particular container within the trunk of the vehicle, this would not justify a search of the entire cab of the vehicle under the automobile exception. In the case of Wyoming v. Houghton, 119 S.Ct (U.S. 1999), the United States Supreme Court made clear that police, when conducting a probable cause search of containers within a vehicle under Acevedo, may search all containers without regard to ownership. A passenger s belongings just like a driver s has a reduced expectation of privacy once placed in the car. Pursuant to Houghton, when the police have probable cause to search a car, they may search even a passenger s belongings found in the car which are capable of concealing the object of the search. 11

12 In Greene v. State, 532 So.2d 1309 (Fla. 5 th DCA 1988), the appellate court upheld the search of the entire vehicle based upon Ross after the officer, during a traffic stop, observed marijuana seeds in the tray built into the door of the vehicle. The odor of marijuana detected coming from a vehicle during a traffic stop may also establish probable cause to search all the occupants within the vehicle in addition to the vehicle itself. See State v. Chambliss, 25 FLW D554 (5 th DCA 2000); State v. Williams, 24 Fla. L. Weekly D2104 (5 th DCA 1999); State v. T.T., 594 So.2d 839, 840 (5 th DCA 1992). Keep in mind the officer must be a person who is trained to recognize the odor of marijuana, is familiar with it, and can recognize it. The rationale behind the automobile exception is that the vehicle is readily movable. In all the cases the vehicle had either been mobile just prior to being stopped or was located in a public place and was capable of being driven away. Thus, if police have probable cause that a vehicle contains contraband, but the vehicle is not being driven at the time, is incapable of being moved (up on blocks or has no tires) or is not, at a minimum, parked in a public area such as a public street or public parking lot, police should secure a warrant to search the vehicle. Therefore, a warrant is needed to search a vehicle located in a suspect s garage because entry must be made into the home, which clearly requires a warrant. You may be confronted with whether a warrant is needed to conduct an automobile search when the vehicle is sitting in the defendant s open garage or carport. The Court has not addressed whether the ready mobility argument coupled with the lesser expectation of privacy in the vehicle would allow a warrantless search in this circumstance. Arguably, these areas are an extension of the home and the curtilage of the home, and thus a warrant is required. If a warrant were required, would a search of a vehicle at a suspect s apartment parking lot require a warrant also? The case of Ruiz v. State, 24 FLW D2201 (4 th DCA 1999), did address the issue of a vehicle which was seized from a driveway which abutted an alley behind the defendant s residence. Since the vehicle was located in an area that was not part of the curtilage of the home, the seizure was upheld. Interestingly, however, the police only seized the vehicle and obtained a warrant before conducting the actual search. 12