State v. Howell

District Court of Appeal of Florida

State v. Howell

384 So. 2d 60, 1980 Fla. App. LEXIS 16351

District Court of Appeal of Florida·Decided June 4, 1980·No. No. 79-2078·Published·Cited by 1 cases

Opinion

BERANEK, Judge.

This is an appeal by the State of the grant of a motion to suppress evidence seized from the defendant’s automobile. A gun, located in the console on the floor between the seats, and some marijuana, found in a briefcase in the trunk, were seized when the defendant was stopped for driving while intoxicated. We affirm as to the suppression of the marijuana, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 2594, 61 L.Ed.2d 235 (1979), but reverse as to the suppression of the gun.

The evidence is clear that probable cause existed to stop the defendant who was driving his automobile in a very erratic and reckless manner. Further, when the defendant got out of his car, he exhibited clear signs of intoxication, including slurred speech and staggering. We consider the gun search to have been proper under State v. Gustafson, 258 So.2d 1 (Fla.1972), affirmed, Gustafson v. State, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and Rivera [61]*61v. State, 373 So.2d 64 (Fla.3d DCA 1979). We conclude that the trial court committed error in suppressing the gun and reverse and remand the cause for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.

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BERANEK, Judge.

This is an appeal by the State of the grant of a motion to suppress evidence seized from the defendant’s automobile. A gun, located in the console on the floor between the seats, and some marijuana, found in a briefcase in the trunk, were seized when the defendant was stopped for driving while intoxicated. We affirm as to the suppression of the marijuana, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 2594, 61 L.Ed.2d 235 (1979), but reverse as to the suppression of the gun.

The evidence is clear that probable cause existed to stop the defendant who was driving his automobile in a very erratic and reckless manner. Further, when the defendant got out of his car, he exhibited clear signs of intoxication, including slurred speech and staggering. We consider the gun search to have been proper under State v. Gustafson, 258 So.2d 1 (Fla.1972), affirmed, Gustafson v. State, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and Rivera [61]*61v. State, 373 So.2d 64 (Fla.3d DCA 1979). We conclude that the trial court committed error in suppressing the gun and reverse and remand the cause for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.

State v. Howell, 384 So. 2d 60, 1980 Fla. App. LEXIS 16351 (Fla. Ct. App. 1980).

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Opinion

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