Robert Burton v. State

237 So. 3d 488

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ROBERT BURTON,

Appellant,

v. Case No. 5D15-1310

STATE OF FLORIDA,

Appellee.

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Opinion filed March 2, 2018

Appeal from the Circuit Court for Orange County, Marc L. Lubet, Judge.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, C.J.

ON REMAND

In Burton v. State, No. SC16-1116, 2018 WL 798521 (Fla. Feb. 9, 2018), the

Florida Supreme Court summarily quashed this Court’s prior opinion in Burton v. State,

191 So. 3d 543 (Fla. 5th DCA 2016), and remanded for reconsideration based on

Carpenter v. State, 228 So. 3d 535 (Fla. 2017). In Carpenter, the majority held that “the good-faith exception to the exclusionary rule does not apply” when law enforcement is

“not relying on the type of longstanding, thirty-year appellate precedent” such as that at

issue in Davis v. United States, 564 U.S. 229 (2011). Carpenter, 228 So. 3d at 542.

Upon consideration of Carpenter, the good-faith exception as articulated in Davis

was inapplicable in the instant case. Therefore, Burton’s motion to suppress evidence

taken from the warrantless search of his cell phone incident to his arrest should have

been granted. See id.

REVERSED AND REMANDED.

PALMER, J., concur. BERGER, J., concurs specially, with opinion

2 Case No. 5D15-1310

While I continue to believe the police acted in good faith when they searched

Burton's cell phone without a warrant, I am constrained to concur based on the Florida

Supreme Court's opinion in Carpenter v. State, 228 So. 3d 535 (Fla. 2017).