Opinion
No. 80-422.
July 1, 1981. On Rehearing August 12, 1981. Rehearing Denied September 1, 1981.
Appeal from Circuit Court, Orange County; Lon S. Cornelius, Jr., Judge.
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
Patterson was charged with committing grand theft in the second degree in violation of section 812.014, Florida Statutes (1979). She moved to suppress a portion of the stolen property that was seized by the arresting officers. After a hearing on the motion, the trial court denied it. Patterson then pled nolo contendere to the charge and reserved the right to take an appeal of the denial of the motion to suppress. Both the state and Patterson's counsel stipulated that if the trial court had granted the motion to suppress, it would have been dispositive of the felony charge. The trial court accepted the plea, adjudicated the appellant guilty as charged, and placed her on probation. On this appeal, Patterson contends that the trial court erred in denying the motion to suppress.
The only witness to testify at the suppression hearing was the arresting officer, Katherine Ellis. While in her cruiser, she heard a report over her radio with regard to a shoplifting that had just taken place in the Winter Park Mall. The dispatch reported that the items taken were a light brown pair of pants and a shirt; the vehicle was described as a red Pinto with a current Florida tag, number FAZ058; the vehicle was traveling northbound from Ivey's with a black male driving it and a black female occupant who had pink curlers and a beige dress. The witness spotted the vehicle while it was still at the mall and stopped it. The officer had the driver exit the car and asked him for some identification. She then spotted the two items in the back end of the Pinto, partially covered by a leather jacket that had been described in the radio dispatch. The officer then noticed that the appellant, who was in the front passenger seat, was bending over, apparently attempting to conceal something beneath her dress or her legs. The officer had the appellant get out of the car, placed her under arrest for shoplifting, and put her in the back of her patrol car. The officer then returned to the Pinto to see what the appellant had been trying to hide. The officer found two handbags under the front seat, and opened them up to make sure that there were not any weapons in them. Inside the handbags, the officer found other articles of clothing, sunglasses, and jewelry that had been taken from various stores at the mall without having been paid for. The officer planned to let the driver go with the vehicle. There was no search warrant and no permission to search the vehicle.
Patterson does not contest her arrest or the seizure of the two stolen items that were in plain view in the back of the Pinto. Her contention is that the search under the front seat of the Pinto was not justified, since she had already been removed from that car and placed in the police car, and therefore the items found in the two purses should be suppressed. These items make the difference between whether the theft was petit or grand. Conversely, the state argues that the search and seizure of these items was justified as either (1) a search incident to an arrest, or (2) an "automobile exception" search based on probable cause combined with exigent circumstances.
Patterson was already in police custody at a safe distance from the Pinto at the time the search was made; therefore, the search was not incident to her arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Granville v. State, 348 So.2d 641 (Fla. 2d DCA 1977); Ackles v. State, 270 So.2d 39 (Fla. 4th DCA 1973); State v. Welsh, 84 N.J. 346, 419 A.2d 1123 (1980). Since the police officer was arresting a thief and stolen items were visible in the car, there was probable cause for the officer to believe that there might be other stolen items in the Pinto. This probable cause, combined with the exigent circumstance that the driver of the Pinto was going to drive it away, gave the officer justification to conduct a warrantless search of the Pinto. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980); State v. Dupart, 383 So.2d 1226 (La. 1980). However, once the police officer looked under the seat of the Pinto and seized Patterson's two purses, there was no longer an exigent circumstance requiring an immediate search of the purses and, therefore, the officer should have procured a warrant to search the purses. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (footlocker); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (luggage); Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979) (purse); Liles v. State, 375 So.2d 1094 (Fla. 1st DCA 1979) (satchel); United States v. Benson, 631 F.2d 1336 (8th Cir. 1980) (tote bag). We recognize the rationale of the arguments contained in Judge Cowart's dissent. However, his arguments were raised in the dissents of Chadwick and Sanders and were rejected by the majorities in those cases.
Accordingly, we must reverse the denial of the motion to suppress and remand for further proceedings on charges of petit theft.
REVERSED and REMANDED.
ORFINGER, J., concurs.
COWART, J., dissents with opinion.
ON REHEARING GRANTED
Subsequent to our original consideration of the above case, the United States Supreme Court has decided and issued State of New York v. Belton, ___ U.S. ___, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Based on that decision, we grant rehearing, recede from our original opinion, and affirm the trial court.
ORFINGER and COWART, JJ., concur.
I agree that, because the shoplifting thief when arrested with some stolen goods was observed hiding something in the front of the vehicle in which she was a passenger, the arresting officer had reason to believe other stolen items were being hidden and had probable cause to forthwith search the vehicle for them without a warrant under the exigent circumstances existing when the vehicle was about to be removed from the area by its driver. I do not agree that probable cause justified the seizure of the two open top carryall-tote bags but not their immediate search. The officer's reason and right to search and seize without a warrant related to the probable presence of stolen property in the vehicle. It was the vehicle that was being searched and not the bags. The bags were not known to exist until, during the search of the vehicle, they were discovered. It was not known that the bags contained stolen property until they were searched. Necessarily the bags were removed from their location before the officer could look into them to ascertain if they contained stolen property. This removal of the bags from their original hidden location in the vehicle was not itself a seizure but was one step in the authorized search of the vehicle. The seizure occurred, as it normally does, after the search had revealed the contents to contain stolen property. It was the contents of the bags that were the object of the search and seizure and not the bags themselves. The tote bags, being in the vehicle, necessarily partook of the mobile nature of the vehicle itself, justifying their warrantless search as part of the search of the vehicle. If, when searched, the bags had not contained stolen property, their contents would not have been seized but would have been left in the vehicle to leave with it, just as was the driver and other unseized contents of the vehicle.
The bags were variously referred to as two handbags and two purses but later they were described as "carryall totes, about this big by about that wide (indicating). They were open on top. — The one was a tan canvas carryall-type bag, and the other was a straw carryall-type bag with yellow flowers on it." (TR 8, 12, 13, and 15)
In Chadwick suspicion and probable cause had focused on a double locked footlocker while it was in railway transit and it was seized just as it was being placed in the trunk of a parked car and both the footlocker and the car were taken into custody. Likewise, in Sanders suspicion amounting to probable cause had centered on Sanders' suitcase while it was in transit and long before it was put into the taxi from which it was seized. In both Chadwick and Sanders the officers were not searching vehicles for something unknown, they were after the luggage which they already had probable cause to believe to contain contraband and the luggage had only incidentally been placed into a vehicle at the time of its seizure. In Ulesky, unlike in this case, it was the driver who was arrested, the vehicle was not leaving the area, and the officers reasonably could have obtained a search warrant for the vehicle and its contents. In Liles, as in Chadwick and Sanders, the officers impounded the vehicle in which was located the satchel later searched without a warrant. In Chadwick and in Sanders it was actually the footlocker and the suitcases which were desired to be searched, not the vehicles, and in Ulesky and Liles the vehicle and its contents were immobilized and it was practical for police officers to have obtained a search warrant before searching the vehicle and its contents.
Because of its absurdity, police officers will never understand that the law authorizes them to seize an object such as a shopping bag on the basis that they have reason to believe that it contains contraband but will not authorize them to immediately look into it to determine the truth and forthwith either return it to its owner if it does not contain contraband or keep possession of it if it does. As a practical matter it will never occur to a police officer that he should, after taking possession, not look into it but must take it to a magistrate, explain his probable cause for believing that its contents are subject to seizure and then have the magistrate sign a search warrant authorizing the police officer to look into the container. Under these circumstances, since the officer is the one in possession of the object to be searched at the time the search is authorized who does he represent to the magistrate is in possession of the property to be searched? After the search warrant is issued must the officer then go back and find the person from whom the container was seized and serve the search warrant on that person?
As the same probable cause and exigent circumstances making it reasonable to search the vehicle without a warrant also makes it reasonable to search the tote bags before seizing them I would not extend Chadwick and Sanders to further limit Chambers v. Maroney but would affirm the denial of the motion to suppress in this case and affirm the trial court's disposition of this case based upon the appellant's nolo contendere plea.
The trial court's denial of a motion to suppress based upon its finding of probable cause comes to this court clothed with a presumption of correctness. McNamara v. State, 357 So.2d 410, 412 (Fla. 1978). In my opinion appellant has failed to overcome that presumption in this case.