Interest of LJA

18 Fla. Supp. 2d 131
CourtCircuit Court for the Judicial Circuits of Florida
DecidedAugust 25, 1986
DocketCase No. 86-3708-CJ
StatusPublished

This text of 18 Fla. Supp. 2d 131 (Interest of LJA) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Interest of LJA, 18 Fla. Supp. 2d 131 (Fla. Super. Ct. 1986).

Opinion

OPINION OF THE COURT

JAMES T. CARLISLE, Circuit Judge.

The issue in this case is whether a search of the passenger compartment of the defendant’s car violated the Fourth Amendment.

[132]*132On May 24, 1986, Deputy Sheriff Crerand observed defendant run a red light. He pursued him and made a routine traffic stop. Deputy Crerand observed defendant lean forward and reach down in a manner which he testified was consistent with retrieving or concealing an object near the floor.

Deputy Crerand testified that among other things he suspected the item might have been an open container of alcoholic beverage, which would be in violation of the County’s open container law. Deputy Crerand also considered the possibility that defendant was concealing contraband or arming himself with a weapon. Deputy Crerand did not call for a back-up officer because doing so was contrary to Sheriff Department policy regarding traffic stops.

The defendant was required to stand in front of the vehicle. Deputy Crerand observed a lump under the floor mat which he testified looked similar to a bump under the floor mat of his own automobile, caused by a short barrel revolver which he secreted there. He lifted the floor mat and found a plastic bag containing a white powder. He then looked under the seat and found another plastic bag also containing a white powder. In looking under the seat he lost sight of the defendant for a few seconds. Subsequent search of the vehicle revealed another bag of white powder, a marijuana cigarette, a small amount of suspected hashish, and currency in the amount of $9,992.00. At some point during the search Deputy Sheriff Combs arrived on the scene. During the search defendant was required to sit on the curb but was not handcuffed. After the interior of the car was examined, defendant was handcuffed and the search of his person revealed $291.00.

Defendant contends these facts do not justify a search of the automobile because the stop was for a traffic infraction and Deputy Crerand’s failure to handcuff the defendant, the lack of a back-up officer, and taking his eyes off the defendant indicate he did not apprehend a threat from the defendant nor fear that the defendant would attempt to escape or destroy evidence.

This case is remarkably similar to State v. Dilyerd, 467 So. 2d 301 (Fla. 1985). There the owners of an orange grove had asked deputies to be on the look out for trespassers who used the grove for drinking parties. A deputy sheriff noted a car parked in the orange grove with two male occupants. When he shined his spot light in the car the passenger leaned forward and appeared to do something with his hands on the floor board. The deputy summoned a back-up deputy and approached the car from the passenger’s side. When the back-up deputy arrived the occupants were ordered from the car. The passenger [133]*133testified they were not subjected to a pat-down search. The deputy could not remember but testified that they probably were because it was his standard procedure to do so. The deputy searched under the passenger seat while the back-up deputy watched the two males. At no time did the officers draw their weapons. Cocaine was found under the passenger seat. Dilyerd argued that the failure of the officers to do a pat-down after removing them from the car, failure to check for outstanding warrants or stolen car reports before searching the car, and failure to reach a decision on whether to arrest the suspects before searching the car, evidenced a lack of fear for their safety and the search of the passenger compartment could not be justified as incident to the officer’s safety because both occupants had been removed from the vehicle.

In approving the search the Supreme Court stated: “We are not prepared to prescribe as a matter of law a pre-determined series of acts that the police must follow in conducting an investigative stop and frisk of the motor vehicle.” The Court went on to hold that the movement of the passenger which the officer felt was made to conceal a weapon was a sufficient specific and articulable fact which would justify a search of the interior of the car.

Defendant pointed out some differences between this case. For example, a back-up deputy was summoned in Dilyerd and the entire search was conducted while the back-up deputy watched the two males. These differences can be dismissed as an attempt to “prescribe a pre-determined series of acts that the police must follow in conducting an investigative stop and frisk of motor vehicles.”

State v. Brown, 395 So.2d 1201 (Fla. 3d DCA 1981), involved a stop for suspicion of auto theft and driving with an expired license plate. Brown and his passenger made furtive hand movements under the car seat during the subsequent police investigation after the stop. The Third District Court of Appeal said the hand movements constituted articulable suspicion that the defendants were armed and dangerous, which in turn justified the police in searching the car seat after the police had ordered both defendants out of the car. Having properly stopped defendant for a traffic infraction and observed him do an act consistent with hiding evidence or obtaining a weapon, the instant search was valid.

Defendant also notes the stop in the instant case was for a traffic infraction and the stop in Dilyerd was for the criminal act of trespassing. This is a distinction without a difference. In New York v. Belton, 453 US 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, a police officer stopped [134]*134a vehicle for speeding. When he smelled burnt marijuana and saw an envelope on the floor of the car marked ‘Supergold’ he arrested the occupants for marijuana. He patted them down and directed them to four separate areas of the New York throughway, so they could not touch each other. A search of the vehicle revealed a black leather jacket belonging to Belton. The officer unzipped one of the pockets of the jacket and discovered cocaine. In reaching the holding that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may as a contemporaneous incident of that arrest search the passenger compartment of that automobile.” 69 L. Ed. at 775. In reaching this decision the Court harkened back to its holding in Chimel v. California, 395 US 752, 23 L. Ed 2d 685, 89 S. Ct. 2034, that:

“A lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediate surrounding area. Such searches have long been considered valid because of the need to remove any weapons that the arrestee might seek to use in order to resist arrest or effect his escape and the need to prevent concealment or destruction of evidence.” 69 L. Ed 2d 768, at 773.

The Court emphasized the principal that “the scope of such a search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Supra at 773, L. Ed. 2d.

It is easy to enunciate such principals but difficult to apply in specific cases. A single familiar standard was essential to guide police officers who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Chimel v. California
395 U.S. 752 (Supreme Court, 1969)
Adams v. Williams
407 U.S. 143 (Supreme Court, 1972)
United States v. Robinson
414 U.S. 218 (Supreme Court, 1973)
Pennsylvania v. Mimms
434 U.S. 106 (Supreme Court, 1977)
New York v. Belton
453 U.S. 454 (Supreme Court, 1981)
State v. Irvin
483 So. 2d 461 (District Court of Appeal of Florida, 1986)
State v. Dilyerd
467 So. 2d 301 (Supreme Court of Florida, 1985)
Elison v. Goodman
395 So. 2d 1201 (District Court of Appeal of Florida, 1981)

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Bluebook (online)
18 Fla. Supp. 2d 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interest-of-lja-flacirct-1986.