Opinion
Case No. 5D02-1858.
Opinion filed March 14, 2003.
Appeal from the Circuit Court for Osceola County, C. Alan Lawson, Judge.
James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick V. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
Alexander Aponte appeals his conviction and sentence for possession of cocaine and the denial of his motion to suppress the cocaine found by a police officer in a cigarette box during a consensual search.
The officer observed Aponte standing behind a pick-up truck along with two other persons. As the officer approached, the others walked away leaving Aponte behind. Noticing that a television set was in the bed of the truck, and because they were in a high crime drug area, the officer suspected that Aponte may have been planning to use the television set in exchange for drugs. The officer engaged Aponte in "small talk," and then asked his name and what he was doing. Aponte responded by handing the officer a Florida driver's license. The officer then asked if he could search him and Aponte replied, "Okay." During the search the officer discovered a cigarette pack in a pocket, opened it, discovered crack cocaine, and subsequently arrested Aponte.
Aponte's motion to suppress the cocaine found in the cigarette box was denied. A trial followed and he was found guilty of possession of cocaine. He now raises two points on appeal, only one of which we find to have merit. We agree that the officer exceeded the scope of a consensual search by opening the cigarette box found in his pocket.
The Fourth Amendment of the United States Constitution prohibits the government from conducting unreasonable searches and seizures. U.S. Const. Amend. IV. Both the United States Supreme Court and Florida courts have defined the "scope" of a defendant's consent to a warrantless search in numerous cases. For example, in Jacobs v. State, 733 So.2d 552, 554 (Fla. 2d DCA 1999), the court generalized that "[t]he scope of a consent to search is generally limited to what a reasonable person would have understood to be the object of the search during the exchange between that person and the police." See also Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). "The scope of a search is generally defined by its expressed object." Jimeno at 251 citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Further, it is well established that an individual has a heightened expectation of privacy in the contents of a closed container. United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1997). "By placing his possessions inside a container, an individual manifests an intent that his possessions be `preserved as private.'" Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).
Applying the Fourth Amendment's basic test of objective reasonableness to the instant case, a reasonable person in Aponte's position would not understand that the officer's request to search him included a search of sealed containers on his person in which he has a heightened expectation of privacy. The more objective and reasonable understanding here would be that the officer's search was for a weapon on Aponte's person. We find that there was no reasonable basis or consent given for the extended search and the motion to suppress the evidence found in the cigarette box should have been granted. See, e.g., R.R. v. State 715 So.2d 1062 (Fla. 5th DCA 1998) (following protective pat down of juvenile defendant, officer, who determined that bulge in juvenile's pants was a cigar tube, not a weapon, had no reasonable basis or consent to search cigar tube and the motion to suppress should have been granted.)
REVERSED AND REMANDED.
PETERSON, PLEUS and MONACO, JJ., concur.