IF THERE WAS A SEARCH AND SEIZURE WITHOUT A WARRANT,
   DID IT INVOLVE A MOTOR VEHICLE?  Pages 286 -350

 
X.  IF THERE WAS A SEARCH AND SEIZURE WITHOUT A WARRANT, DID IT INVOLVE A MOTOR VEHICLE? IF SO, DIFFERENT CONSIDERATIONS APPLY. Page 286

A.  There is a limited expectation of privacy. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). [Back]

B.  When is the warrantless search of an automobile proper?  [Back]

1.  "[F]ounded suspicion to stop a vehicle does not carry with it authority to search the vehicle or its occupants. A search may only be conducted pursuant to (1) a search warrant; (2) a valid arrest based on probable cause; or (3) exigent circumstances." Tinson v. State, 650 So. 2d 189 (Fla. 2d DCA 1995).

2.  "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." This is based on the exigency created by the mobility and the reduced expectation of privacy. Pennsylvania v. Labron, 116 S.Ct. 2485, 135 L. Ed.2d 1031 (1996).

3.  Officers may search a motor vehicle without a warrant if they have probable cause to believe it contains contraband and a legitimate concern that the vehicle may be removed and the evidence destroyed. This is an extremely important and long decision that should be read in its entirety. White v. State, 710 So. 2d 949 (Fla. 1998).

4.  "[I]t appears that the automobile 'exception' to the warrant requirement has now become the automobile 'rule', with a warrant 'exception.' We understand from the holding in Carney that the police are now free to search any vehicle, any time, and any place (except when it is upon residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime. It is our understanding that the Carney holding has eliminated any Fourth Amendment requirement for a warrant or showing of exigent circumstances." State v. Starkey, 559 So. 2d 335 (Fla. 1st DCA 1990). See also Perdue v. State, 632 So. 2d 117 (Fla. 1st DCA 1994). [Note: these decisions are not consistent with the decision in White v. State, 710 So. 2d 949 (Fla. 1998).]

5.  The "automobile exception" to the warrant requirement set forth in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) and discussed in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), turns on the mobility of the vehicle and its presence in a setting "'that objectively indicates that the vehicle is being used for transportation.'" Under this exception only "'the prior approval of the magistrate is waived.'" Probable cause must be present just as it would have to be for a magistrate to issue a warrant. In this case the defendant was convicted of murder. A truck had been involved in the crime and officers, acting without a warrant, seized the truck from a public roadway, searched it, and found evidence. On appeal the Court held that the search and seizure met the aforementioned standards based on the following facts: (1) the officers relied on a description given by a witness of the vehicle; (2) a witness identified the truck as one entered by the victim on the night of the murder; (3) the truck had certain unique features which distinguished it from most other trucks. Crump v. State, 622 So. 2d 963 (Fla. 1993).

6.  "There is no requirement that the warrantless search of a vehicle occur simultaneously with its lawful seizure. U.S. v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). A vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search. Id. Cf. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed. 2d 325 (1974)(impoundment and 1-day delay did not make examination of exterior of vehicle unreasonable where it could have been done on the spot); State v. Starkey, 559 So. 2d 335 (Fla. 1st DCA 1990) (‘the police are now free to search any vehicle, any time, and any place (except when it is upon residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime.’" Perdue v. State, 632 So. 2d 117 (Fla. 1st DCA 1994).

7.  It was undisputed that there was probable cause to search the involved car which was stopped on a public street. It was searched without a warrant. The trial judge granted a motion to suppress. On appeal the Court reversed based on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The defense relied on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), because (1) there the car was parked on residential premises not on a public street, and (2) the police there had sufficient time to get a search warrant whereas here they did not. The Court relied on the following language from Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982): "'[W]hen police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody ... It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized.'" The Court also relied on the following language from State v. Starkey, 559 So. 2d 335, 339 (Fla. 1st DCA 1990: "'[T]he police are now free to search any vehicle, any time, and any place (except when it is on residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of crime. It is our understanding that the Carney holding has eliminated any Fourth Amendment requirement for a warrant or showing of exigent circumstances.'" State v. Daniel, 622 So. 2d 1344 (Fla. 3d DCA 1993).

8.  "[T]he smell of marijuana upon the officers' approach of the car gave the officers probable cause to search the occupants of the car and the car for contraband." State v. Wynn, 623 So. 2d 848 (Fla. 2d DCA 1993). See also State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988).

9.  The trained trooper had probable cause to search the entire vehicle when the trooper saw marijuana seeds in the tray of the car door. Greene v. State, 532 So. 2d 1309 (Fla. 5th DCA 1988).

C.  Stops for non traffic related conduct. [Back]

1.  "[W]e do not agree that an officer may stop a motorist only if he or she is violating the traffic code. For example, if an officer observes garbage being thrown from a vehicle, or that the driver is driving naked or sees a driver shoot at a pedestrian, a stop would appear appropriate." The court found that a violation of the noise statute, which the court found to be constitutional against a vagueness and first amendment attack, justified a stop. Davis v. State, 710 So. 2d 635 (Fla. 5th DCA 1998).

D.  Stops for traffic violations or unusual driving behavior.    [Back]

1.  These cases deal with the situation: Johnson v. State, 537 So. 2d 117 (Fla. 1st DCA 1988); Stafford v. State, 532 So. 2d 1361 (Fla. 1st DCA 1988); Hanley v. State, 547 So. 2d 1037 (Fla. 1st DCA 1989); Castillo v. State, 536 So. 2d 1134 (Fla. 2d DCA 1988); State v. Eady, 538 So. 2d 96 (Fla. 3d DCA 1989); Diaz v. State, 548 So. 2d 843 (Fla. 3d DCA 1989); State v. Rodriguez, 542 So. 2d 454 (Fla. 3d DCA 1989); State v. Frederick, 525 So. 2d 516 (Fla. 4th DCA 1988); Phillips v. State, 531 So. 2d 1044 (Fla. 4th DCA 1988); Andrews v. State, 540 So. 2d 210 (Fla. 4th DCA 1989); Green v. State, 530 So. 2d 480 (Fla. 5th DCA 1988).

2.  "All that is required for a valid vehicle stop is a founded suspicion by the officer that the driver of the car, or the vehicle itself, is in violation of a traffic ordinance or statute." Davis v. State, 788 So. 2d 308 (Fla. 5th DCA 2001). See also State v. Ramos, 755 So. 2d 836 (Fla. 5th DCA 2000).

3.  Once the officer stopped the vehicle he had a right to demand the license and registration even though he immediately determined that the temporary tag was valid. State v. Bass, 609 So. 2d 151 (Fla. 5th DCA 1992).

4.  A marine patrol officer has the authority to stop a citizen for a noncriminal traffic infraction and upon determining that there is probable cause to make an arrest for DUI. State v. Parsons, 569 So. 2d 437 (Fla. 1990).

5.  Where there is a lawful traffic stop it is proper for the officer to direct a narcotics detecting dog to sniff around the car for drugs and to do a search of the vehicle when the dog alerts on the trunk. State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990).

6.  Where the defendant failed to stop his vehicle after officers activated their emergency lights he violated §316.1935 and the officers had probable cause to arrest him for committing a first degree misdemeanor in their presence. Incidental to the arrest they had the right to search his person. Moore v. State, 561 So. 2d 625 (Fla. 1st DCA 1990).

7.  §316.238 Fla. Stat. does not require that two vehicles be on the same roadway at the time one of the vehicle operators fails to dim his high beams in order for that infraction to be committed. The court made this decision based on a reading of §316.003(43) and §316.238 together. Thus a stop by a trooper on an interstate on such grounds was lawful. Hester v. State, 563 So. 2d 191 (Fla. 4th DCA 1990), reversed on other grounds, 618 So. 2d 1365 (Fla. 1993).

8.  It was proper for the trial court to conclude that a stop was lawful where (1) the officer testified that he saw the vehicle weaving within its lane and slowing to 45 m.p.h. and then accelerating to 55 m.p.h. several times; (2) the officer testified that he had observed similar conduct many times in the past and was aware that such behavior often indicated sleepy or alcohol-impaired drivers and he had stopped vehicles under similar circumstances dozens of times. The Court cited the following language from the opinion in Bailey v. State, 319 So. 2d 22, 26 (Fla. 1975): "'Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other.'" Brown v. State, 595 So. 2d 270 (Fla. 2d DCA 1992).

9.  The trooper had reasonable suspicion where the defendant was observed at 2 A.M. driving his vehicle from the extreme right side of the road to the extreme left side of his lane about five times for about one quarter of a mile. He could stop the defendant even though he did not see any traffic violation and upon discovering additional facts make an arrest. State v. Carrillo, 506 So. 2d. 495 (Fla. 5th DCA 1987); See also, State v. Nugent, 504 So. 2d 47 (Fla. 4th DCA 1987); State v. Neumann, 567 So. 2d 950 (Fla. 4th DCA 1990), rev. denied, 576 So. 2d 289 (Fla. 1991); State v. Padilla, 4 Fla. L. Weekly Supp. 866 (Fla. Dade Cty. Ct. July 14, 1997).

10.  A trooper saw the defendant's vehicle going about 45 m.p.h. on an interstate and weaving within its lane for about a half a mile. The trooper said the manner of operation was consistent with the behavior of a person driving under the influence of alcohol or drugs, or a person falling asleep at the wheel, so he pulled the car over. He observed marijuana in the vehicle and seized it. Relying upon Bailey v. State, 319 So. 2d 22 (Fla 1975), the court concluded that the initial stop was lawful and the evidence was properly seized. Esteen v. State 503 So. 2d 356 (Fla. 5th DCA 1987). See also, Spann v. State, 512 So. 2d 1106 (Fla. 5th DCA 1987); State v. Ervin, 483 So. 2d 461 (Fla. 5th DCA), rev. denied, 491 So. 2d 279 (Fla.1986); State v. Frederick, 525 So. 2d 516 (Fla. 4th DCA 1988).

11.  A deputy followed the defendant's vehicle and observed that the driver seemed to be using the lane markers to position his car. The deputy also noticed that the defendant abruptly slowed from 55 to 30 miles per hour and then sped up rapidly. The officer stopped the car because he found that the driving behavior was "'erratic'". The deputy was concerned that either the driver was impaired or the vehicle was malfunctioning. As a result of the stop the officer secured additional facts which established probable cause for a DUI arrest. The issue was whether the stop was lawful. On appeal the court found that the officer had reasonable suspicion and the stop was valid. "Erratic driving similar to that involved in this case has been held sufficient to establish a founded suspicion and to validate a DUI stop.... Driving behavior need not reach the level of a traffic violation in order to justify a DUI stop.... The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior. In Bailey v. State, 319 So. 2d 22 (Fla. 1975), the Florida Supreme Court upheld the traffic stop of a driver who was observed driving her vehicle at a slow rate of speed and weaving within her lane of traffic. The court expressly stated that there were no circumstances which would reasonably have led the officer to believe criminal activity was taking place. 319 So. 2d at 26. The court nevertheless validated the traffic stop, stating that '[b]ecause of the dangers inherent to our vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation.'" Department of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).

12.  Officers saw the vehicle operated by the defendant cross over the right-hand line of the roadway three times. An officer stopped the defendant for violating § 316.089(1), which requires that a driver operate a vehicle, "as nearly as practicable entirely within a single lane" and that a driver not move from the lane until the driver has determined that the vehicle can be moved safely from the lane. The trial court found that the stop was valid. On appeal the court reversed because the evidence was insufficient to support a violation of that statute. This opinion might well be viewed as a departure from the decision in DeShong, but it is doubtful that the court had any such intention. The court makes no mention of Bailey, DeShong, or any similar cases. Thus, there is no indication that the significance of those case was even argued to the court or considered in any way by the court. The court also makes it clear that there was abusive and improper police conduct that shocked the conscience of the court and was probably a major factor in the court’s decision. Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).

13.  At about 2:00 a.m. a deputy saw the defendant continually weaving from side to side within her lane, crossing both the right and left lines several times. The deputy pulled the defendant over for violating §316.089(1), failure to maintain vehicle in a single lane. He issued a citation for that offense and other matters discovered after the stop. He also placed the defendant under arrest for DUI based on evidence secured after the stop. The defendant moved to suppress the evidence secured after the stop. The county judge granted the motion. The county judge concluded that the deputy did not have a founded or reasonable suspicion of criminal activity because a tape made of the driving did not show the vehicle actually crossing the lane lines, and because there was no evidence that the defendant’s driving interfered with or endangered any other vehicle or pedestrian. The circuit court reversed. The defendant filed a petition for certiorari with the district court. The court denied the petition. The district court said that Brown, DeShong, and Carrillo "stand for the proposition that a police officer can stop a driver based on a founded suspicion that the driver is under the influence, even where the driver is not committing a separate traffic offense. In the instant case, Robert’s continuous weaving, even if only within her lane, during the time that she was being followed presented an objective basis for suspecting that she was under the influence. Thus, the objective facts supported the stop." The court distinguished Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998). "In Crooks, there was no indication, suggestion, or basis for suspecting that the driver was intoxicated or impaired. The Court also noted that in Bailey v. State, 319 So. 2d 22 (Fla. 1975), the Court said:"’Because of the dangers inherent to our vehicular mode of life, there may be justification for stopping a vehicle by a patrolman to determine the reason for is unusual operation.’" Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999).

14.  A police officer [Reisner] followed the defendant "for ten to fifteen blocks with his lights and siren on with no indication that [defendant] was aware of his presence. Reisner observed [defendant] almost hit the median and over-correct to such a degree that he left his lane of travel. These circumstances were sufficient to give rise to a ‘founded suspicion’ that [defendant] was impaired." Ellis v. State, 755 So. 2d 767 (Fla.4th DCA 2000).

15.  An officer stopped the defendant’s vehicle based on reasonable suspicion of DUI. As a result of that stop, officers discovered cocaine on the defendant’s person. A motion to suppress was denied. On appeal, the court affirmed. "Deputy Alfred Araujo (Araujo), assigned to DUI enforcement in Palm Beach County, testified that he first observed appellant when appellant pulled his pick-up truck into the CITGO Gas Mart at the intersection of Westgate and Congress Avenues. Araujo had not noticed appellant driving northbound on Congress, but saw him when he crossed Congress Avenue and turned into the station. As appellant did so, the front and back tires on the driver’s side appeared to strike a raised curb. The truck lifted on the driver's side only, and there were no obstructions, speed bumps or anything else at the end of the driveway. The driveway leading to the market was anywhere from 25 to 30 feet wide, there was no other traffic at the time, and no obstructions in the driveway. Appellant’s truck then "sped up quite rapidly" to the pay phone area and came to a "quick stop." Based upon these observations, Araujo pulled behind the truck.... We hold that the trial court did not err when it denied appellant's motion to suppress. If a police officer observes a motor vehicle operated in an unusual manner, there may be justification for a stop even when there is no violation of vehicular regulations and no citation is issued. Bailey v. State, 319 So.2d 22 (Fla.1975); State, Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992).... We are not persuaded by appellant’s argument that before Araujo could possess a reasonable suspicion to stop him, he had to observe his driving for an extended period of time or distance. In this case, Araujo observed him operate his truck in an unusual manner by hitting the curb with the front and back tires, speeding up and then abruptly stopping in quick succession. Under the circumstances, we conclude that an extended observation was neither possible nor necessary." Finizio v. State, 800 So. 2d 347 (Fla. 4th DCA 2001).

16.  As a result of traffic stop, an officer secured consent to search and discovered drugs. The defendant moved to suppress on the grounds that the stop was unlawful. The trial judge denied the motion. On appeal, the court reversed. The officer observed the defendant’s vehicle pull out of a hotel parking lot with the tires squealing. "[T]he State argues the stop was valid because Officer Gendreau had a founded suspicion of criminal activity. The State relies upon the decision in Tamer v. State, 463 So.2d 1236, 1239 (Fla. 4th DCA 1985), approved, 484 So.2d 583 (Fla.1986).... The State’s argument that this case is similar to Tamer is not persuasive. In this case, the officer only saw Appellant pull out of a parking lot with tires squealing. Although it was 2:00 A.M., the parking lot belonged to a motel, not a building that was closed to the public at the time. Unlike the defendant in Tamer, in this case as soon as the officer initiated the traffic stop, Appellant pulled over. The officer did not observe any other unusual driving, nor any traffic infractions. Additionally, in this case the officer had no report of a crime in the area. Thus, the officer did not have any reasonable, articulable suspicion of criminal activity when he initiated the stop." Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

17.  As a result of traffic stop, an officer secured consent to search and discovered drugs. The defendant moved to suppress on the grounds that the stop was unlawful. The trial judge denied the motion. On appeal, the court reversed. The officer observed the defendant’s vehicle pull out of a hotel parking lot with the tires squealing. "The State ... argues that the officer was justified in stopping Appellant for driving under the influence (DUI), citing Department of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992). With regards to the ‘founded suspicion’ needed to effectuate a valid stop for DUI, the second district explained: ‘The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.’ Id. at 1352, relied upon, Ellis v. State, 755 So.2d 767, 768 (Fla. 4th DCA 2000). In DeShong, a sheriff followed the defendant for a period of time to check for a possible DUI offense. The sheriff observed the defendant use lane markers to position his vehicle. He then observed the defendant abruptly slow from 55 to 30 miles per hour and then accelerate rapidly for no apparent reason. 603 So.2d at 1350. The sheriff stopped the vehicle because he found the driving behavior ‘erratic.’ The second district determined that the driving behavior was sufficient to establish a founded suspicion and to validate a DUI stop. Id. at 1352. This case is distinguishable from DeShong. In this case, the officer simply observed squealing tires, not any erratic driving over a period of time. Additionally, the officer indicated that at the time there were no other cars on the road or in the parking lot that would have been endangered by Appellant squealing his tires. Thus, there was no evidence that Appellant drove in a sufficiently unsafe manner to validate a DUI stop. The officer ... did [not] have reasonable suspicion of ... DUI, rendering the stop illegal." Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

18.  The defendant was convicted of driving with a suspended license. The defendant argued that the traffic stop was improper because the officer did not have probable cause to make a stop for an illegal U-turn under either section 316.1515 or section 316.152. The first statute provides that a driver shall not make a U-turn "unless such movement can be made in safety and without interfering with other traffic and unless such movement is not prohibited by posted traffic control signs." The second statute prohibits a U-turn "upon any curve, or upon the approach to, or near, the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500 feet." The trial court found that the officer had probable cause for the stop. The appellate court affirmed. The court stated that there had to be objective evidence of a reasonable safety concern. The record contained no objective evidence that the U-turn interfered with traffic or violated a posted sign or was made directly on a curve. The court cited Crooks v. State, 710 So. 2d 1041, 1042 (Fla. 2d DCA 1998). "The testimony of the arresting officer, however, is sufficient to establish that probable cause existed for the stop on the grounds that the U-turn created a reasonable safety concern under section 316.1515." The officer used a map and testified that the place where the -turn was made was a dangerous area. The roadway was narrow, there was a curve in the area, and there was a convenience store at the location. The officer also noted that the defendant drove from shoulder to shoulder. "The officer’s observation of the ‘dangerous’ location at which Bender made the U-turn were based upon objective facts—the ‘pretty narrow’ road, the close proximity to a curve, and the manner of the turn itself—which together constituted reasonable grounds for the stop." Bender v. State, 737 So. 2d 1180 (Fla. 1st DCA 1999).

19.  A stop because the defendant failed to stop at a marked stop line before moving forward in violation of Florida Statutes, section 316,123(21). State v. Robinson, 756 So. 2d 249 (Fla. 5th DCA 2000).

20.  A deputy stopped the defendant and as a result of the stop the deputy discovered cocaine. The trial court granted a motion to suppress. The deputy was on an interstate with his radar on. He noticed the defendant’s vehicle traveling at a speed of 40 to 48 m.p.h. where the maximum speed was 70 m.p.h. and the minimum speed was 40 m.p.h.. The deputy followed the vehicle. The vehicle was traveling between 40 and 50 m.p.h. and continually drifted across the line and then jerked back in a correcting manner. The deputy pulled the vehicle over because those actions are characteristic of an impaired driver. He said he knew something was wrong because people do not normally drive like that. The appellate court reversed based on the principle expressed in Bailey v. State, 319 So. 2d 22 (Fla. 1975): "‘Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the deputy that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other." The Court also cited several cases that followed Bailey. As to Crooks, the Court said that the defendant’s reliance on that case was misplaced: "In holding that the arresting deputy had no objective basis to stop Crooks for failing to maintain a single lane of traffic, this Court noted that the deputy did not think Crooks was intoxicated or otherwise impaired. Moreover, from the facts described in Crooks, it appears that some or all of Crooks’ drifting over the line was caused by the actions of the law enforcement personnel involved." State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999).

21.  An officer had probable cause for a stop where the officer observed the vehicle cross over the center line twice and impeding traffic by traveling far below the normal speed limit. State v. Thomas, 714 So. 2d 1176 (Fla. 2d DCA 1998).

22.  Where an officer saw the defendant leave a restaurant, begin to drive away in a car with a broken tail light, but then back his car into the parking lot and go back into the restaurant, the officer did not have grounds to detain the defendant. Terzado v. State, 513 So. 2d 741 (Fla. 3d DCA 1987).

23.  An officer pulled along side a vehicle at an intersection at 10:55 P.M. There were four people in it. The defendant was in the rear seat and appeared nervous. The car pulled away from the intersection slowly and traveled at about 20 M.P.H. In a 35 M.P.H. Zone, which caused the officer to conclude that the driver might be under the influence of alcohol or drugs. The officer observed a temporary tag inside the rear window, which he could not read. As the officer followed the vehicle the occupants continued to turn around and look at him. The officer decided to pull the car over. The court held that the officer did not have a founded suspicion to stop the defendant. L.W. v. State, 538 So. 2d 523 (Fla. 3d DCA 1989).

24.  The defendant was driving without a valid license. His arrest was lawful and the search of his person incident to that arrest was also lawful. The fact that the officers gave different versions as to how he was searched was irrelevant. State v. Jordan, 590 So. 2d 1118 (Fla. 4th DCA 1991).

25.  A stop could not validly be based on a reasonable suspicion that the defendant was committing a traffic infraction where the officer "reasonably suspected" that a cracked tail light was in violation of law, when in fact it was not in violation of any statute. The involved vehicle was equipped with two sets of rear lights consisting of a signal light on the outside of the light bank, a brake light, a reverse light, and a lens cover or reflector. It was the reflector that was cracked, rather than one of the lights. That was consistent with the requirements of §316.22l that a vehicle have two taillights that emit a red light plainly visible from a distance of 1,000 feet to the rear. The Court held that a reasonable officer would have known what the statutory requirements for taillights were and therefore would have known there was no violation. Doctor v. State, 596 So. 2d 442 (Fla. 1992). See also Hilgeman v. State, 790 So. 2d 485 (Fla. 5th DCA 2001)(officer could not base a stop on the mistaken belief that the defendant and others were violating an ordinance).

26.  In the aforementioned case the state argued that pursuant to §316.110 an officer can stop a vehicle for any equipment malfunction even if it does not violate any statute, pose a safety hazard, or otherwise violate the law. "We do not agree. Such an interpretation ... would allow police to stop vehicles for malfunctioning air conditioners or even defective radios, a result clearly beyond the statute's intended purpose of ensuring the safe condition of vehicles operating on our state's streets and highways." Doctor v. State, 596 So. 2d 442 (Fla. 1992).

27.  An officer has reasonable suspicion justifying a stop of a vehicle where he determines that the vehicle's registered owner does not have a valid driver's license. Smith v. State, 574 So. 2d 300 (Fla. 5th DCA 1991).

28.  Driving a vehicle in the dark without any lights and weaving outside the lane of traffic are sufficient circumstances to create a reasonable suspicion of careless driving, reckless driving and DUI. An officer was justified in stopping the involved vehicle and directing the driver to exit. State v. Mahoy, 575 So. 2d 779 (Fla. 5th DCA 1991).

29.  Around 1:00 a.m. a police helicopter saw a car parked in the parking lot of a closed business, and advised a deputy. The deputy saw a vehicle pull out of the parking lot without headlights on. He stopped the vehicle. On appeal the court ruled that there were sufficient grounds for the stop. R.S. v. State, 710 So. 2d 640 (Fla. 5th DCA 1998).

30.  Where an officer could not see a license tag on the exterior of the vehicle it was lawful for him to stop the car. It was also proper for the officer to approach the vehicle and look through the tinted window to see that the temporary tag had expired. "[T]he temporary tag was improperly displayed by being inside the window and not on the exterior of the car. Having made a lawful stop and observed an improperly displayed tag, [the officer] had the authority to further investigate the circumstances." State v. Bentley, 596 So. 2d 773 (Fla. 2d DCA 1992).

31.  Where officer observed the defendant make an abrupt U-Turn and proceed through a residential area at speeds exceeding 80 m.p.h. he had probable cause to make an arrest for reckless driving. State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992); rev. denied, 614 So. 2d 503 (Fla. 1993).

32.  The stop was unlawful where the only grounds giving for detaining a vehicle that was seen driving into and then out of a closed service station at 6:00 a.m. was that the officer wanted to find out why the driver wanted to go into a closed service station. Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992).

33.  The defendant was a passenger in a car. The vehicle was stopped for failure to give a turn signal when making a right turn in violation of §316.155. No other vehicle was affected by the turn. Drugs were found in the vehicle. The Court held that a Motion To Suppress was properly granted. "If no other vehicle is affected by a turn from the highway, then a signal is not required by the statute. If a signal is not required, then a traffic stop predicated on failure to use a turn signal is illegal and any evidence obtained as a result of that stop must be suppressed." The provision of the statute that requires a signal for the last 100 feet before the turn, is intended only to define the distance that a signal is required before a turn in the event that another vehicle would be affected by the turn. The Court disapproved State v. Kamins, 615 So. 2d 857 (Fla. 4th DCA 1993). State v. Riley, 638 So. 2d 507 (Fla. 1994).

34.  A stop because the turn signal on the defendant’s car was not operating, was based on probable cause and was proper. The fact that the defendant said it was operating was a credibility matter to be resolved by the trial judge. Scott v State, 710 So. 2d 1378 (Fla. 5th DCA 1998).

35.  "[O]fficer's knowledge that defendant's license had been suspended at least four or five weeks prior to stop was not stale and gave rise to reasonable suspicion, if not probable cause, to arrest for driving with a suspended license." State v. Pugh, 635 So. 2d 999 (Fla. 2d DCA 1994).

36.  An officer knew the defendant "all his life." He had cited the defendant for driving with an expired license. A short time later (two days to a week) he saw the defendant driving. He suspected that the defendant had not secured a new license in such a short time. He stopped the vehicle and as a result cocaine was discovered. The trial judge granted a motion to suppress on the grounds that the officer did not have reasonable suspicion for the stop. On appeal the Court reversed stating: (1) this was not an arbitrary invasion of privacy by stopping drivers without cause as was disapproved in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); (2) the officer's suspicion that the defendant had not secured a license in the short time period was reasonable in view of his familiarity with the defendant; (3) this was not a stop of all drivers, but rather a stop of one driver known to have been unlicenced a short time before and as a matter of common sense this would increase highway safety. State v. Carrs, 568 So. 2d 120 (Fla. 5th DCA 1990). See also State v. Leyva, 599 So. 2d 691 (Fla. 2d DCA 1992) [officer had reasonable suspicion for stop where he had stopped the defendant several times for driving on a suspended license and the last time was four or five weeks prior to the stop.]

37.  Where an officer determined that the tag on the defendant's vehicle did not match the vehicle, he had sufficient cause to stop the vehicle to determine the reason for the discrepancy. State v. Powell, 580 So. 2d 216 (Fla. 4th DCA 1991).

38.  An officer stopped the vehicle because he could not see a tag. The stop was lawful. Powell v. State, 649 So. 2d 888 (Fla. 2d DCA 1995).

39.  A recent case describes the history of temporary tag rules. In 1995 the statutes authorized such tags, but did not include any specific requirements for displaying them. An administrative rule required that such tags be taped to the rear window. That provision was repealed in 1996. From that time until October 1, 1997, a reasonable interpretation of the law was that a temporary tag had to be displayed like a regular tag. As of October 1, 1997, state statute allowed temporary tags to be displayed in the rear window of the vehicle. Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998).

40.  §316.605(1), requires that "all letters, numerals, printing, writing and other identification marks on the license plate be clear and distinct and that nothing shall be placed on the face of a Florida license plate unless permitted by law." It also requires that a license plate be visible from 100 feet. Both of these provisions were violated. So the stop was lawful. Saviory v. State, 717 So. 2d 200 (Fla. 5th DCA 1998). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001)(stop for no trailer license plate).

41.  The defendant driver gave the officer a registration for another vehicle. The officer had the right to detain and arrest the defendant. § 320.261. Indialantic Police dept. v. Zimmerman, 677 So. 2d 1307 (Fla. 5th DCA 1996).

42.  The defendant's vehicle was illegally parked. Thus, the officer was entitled to detain the defendant for a traffic violation and could order him to exit the vehicle. This is not inconsistent with the decision in Popple v. State, 626 So. 2d 185 (Fla. 1993) because here the defendant was illegally parked and the officer had reasonable suspicion to believe that the defendant was under the influence. Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996).

43.  An officer stopped the defendant because the defendant's car "windshield had a large crack and a windshield wiper stuck directly across the driver's view." The officer said he intended to give the defendant a warning. The defendant was unable to produce a license. The officer arrested him on that charge, but never gave him a citation for the windshield matter. The officer said this was standard procedure. Drugs were discovered in a pat down. The officer had a right to stop the vehicle. "Section 316.610(1), Florida Statutes (1991), states: ‘Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.’" "Section 316.2952(4), Florida Statutes (1991), states: ‘Every windshield wiper upon a motor vehicle shall be maintained in good working order.’" "[T]here is no question that legal authority for the stop existed pursuant to a valid traffic safety statute, and that a traffic stop of this type fell within the usual duties of officers in Deal's department." There is a presumption that the officer would carry out this duty. "In sum, once the State has established that the traffic stop was legally authorized and that it fell within the usual duties assigned to similar officers, then any legitimate doubt whether the State has met its burden should be resolved in favor of the State." State v. Daniel, 665 So. 2d 1040 (Fla. 1995), overruled by, Holland v. State, 696 So. 2d 757 (Fla. 1997).

44.  Officers saw the defendant lawfully driving his car, in the middle of the day, in an area that has a reputation for high crime activity. The rear window of the vehicle was completely knocked out. Both officers stated that the broken rear window was the basis for the stop. As a result of the stop contraband was discovered in the defendant's change purse. The trial judge denied a motion to suppress. On appeal the court reversed because: (1) neither officer knew whether driving a car with a broken rear window was illegal; (2) in fact, the defendant had committed no violation because the Florida Statutes deal only with tinted windows, but none of them require that there even be a rear window; (3) "[t]he police are not permitted to compensate for lack of founded suspicion that a crime has been or is being committed by justifying a stop on an obscure traffic violation or malfunctioning equipment. Doctor v. State, 596 So.2d 442 (Fla.1992)." "Because the officers had observed no violation of the law, and because no reasonable police officer would have stopped the defendant based merely upon the condition of the rear window" the motion to suppress should have been granted. The court relied on Daniel v. State, 647 So. 2d 220 (Fla. 1st DCA 1994) Jackson v. State, 660 So. 2d 312 (Fla. 2d DCA 1995).

45.  Officer Whitehead saw the car swerving and being operated erratically within the city limits. Officer Whitehead sent out a radio transmission. Officer Hardwick responded. Whitehead followed the defendant to the foot of a bridge. The car stopped. Whitehead then followed the car over the bridge and saw it cross the center line four times on the bridge. Whitehead also saw the vehicle almost hit several vehicles in the turn lane of an intersection. Hardwick did not see any of the erratic driving. Hardwick relied on Whitehead’s observations, which he was told about. Whitehead and Hardwick stopped the car outside of the city limits. Hardwick arrested the defendant because he looked drunk and failed field sobriety tests. The defendant refused to take a chemical test. The defendant’s license was suspended. The hearing officer upheld the suspension. The circuit court reversed on the grounds that the officer did not have probable cause for the stop, Hardwick was not in "fresh pursuit," and the fellow officer rule only applies to felonies. On appeal the court reversed. The stop was proper based on fresh pursuit or the felony officer rule. The manner in which the defendant was operating his vehicle was sufficient to justify the stop. "Section 901.18 authorizes an officer to elicit assistance from another officer; and the second officer has the authority to arrest based on the observations and report of the first officer. State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990); Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997); Mahoy. The combined observations of two or more officers may be united to establish probable cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well as felony offenses. Eldridge, Mahoy; Steiner. Further, an arrest made outside an officer’s jurisdiction is authorized by §901.25 where, as here, the officer is in fresh pursuit. Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982); Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). Fresh pursuit included misdemeanor offenses. Edwards. Where there are signs of the offense continuing, the officer has authority to arrest a defendant outside of her jurisdiction for committing the offense within the jurisdiction. Edwards. In this case the erratic driving justified the stop and the defendant’s appearance and conduct after the stop justified the DUI arrest. Dept of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

46.  The officer had probable cause for a stop when he saw the vehicle being driven across the grassy median which divided the north and south bound traffic. That constituted a civil infraction pursuant to §316.090(2). State v. Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).

47.  An officer stopped the defendant for making a stop without giving a signal. On appeal, the court found that the stop was unlawful because the officer was not in a position to see the taillights. Bowling v. State, 779 So. 2d 613 (Fla. 2d DCA 2001).

48.  An officer stopped the defendant for obstructing traffic. As a result, the officer discovered drugs. The trial judge denied a motion to suppress. On appeal, the court reversed because the officer did not have probable cause for such a charge. "[W]hen a person is charged with a violation of the statute prohibiting obstruction of traffic, the offender's conduct must be willful for the statute to apply.... Appellant acknowledges that he intentionally stopped his car in the middle of the street. However, there is no evidence that he did so with the specific intent to impede or hinder traffic. The undisputed evidence suggests otherwise. According to the testimony at the suppression hearing, when the deputy first observed appellant's car, there were no vehicles coming from either direction waiting to pass through. As soon as the officer’s vehicle approached, appellant moved forward, allowing the officer to continue his travel along the street without having to stop or drive around appellant's vehicle. Although the deputy had to slow down, there is no indication that his ‘normal use’ of the street was hindered or endangered by appellant's conduct. But see Covington v. State, 728 So.2d 1195, 1196 (Fla. 4th DCA 1999)(probable cause for traffic stop found where facts showed that defendant stopped car in roadway with driver's side door open and his foot on the road, causing traffic to be blocked); State v. Constant, 2 Fla. L. Weekly Supp. 407 (Fla. 11th Jud. Cir. Aug. 26, 1994)(probable cause for traffic stop found where defendant left his car unattended in the middle of an intersection of two roadways maintained by traffic control lights, which caused traffic to slow down and to go around the defendant's vehicle). Because we conclude that the officer lacked probable cause to stop appellant for obstruction of traffic, the evidence seized pursuant to the unlawful stop should have been suppressed." Underwood v. State, 801 So. 2d 200 (Fla. 4th DCA 2001).

49.  As a result of traffic stop, an officer secured consent to search and discovered drugs. The defendant moved to suppress on the grounds that the stop was unlawful. The trial judge denied the motion. On appeal, the court reversed. The officer observed the defendant’s vehicle pull out of a hotel parking lot with the tires squealing. "The officer testified that he was concerned that Appellant may be impaired or fleeing from the scene of a crime.... At the time there were no other cars on the road that would have been endangered. Officer Gendreau did not feel that Appellant was an impaired driver but remained concerned because Appellant appeared nervous.... The State argues that Officer Gendreau had probable cause to believe that Appellant violated section 316.154, Florida Statutes (1999), by improperly starting his vehicle. Section 316.154 provides, ‘No person shall start a vehicle which is stopped, standing, or parked, unless and until such movement can be made with reasonable safety.’ The State argues that Appellant’s actions in starting and driving his vehicle at such a rate of speed so as to cause his tires to squeal coupled with the fact that he was entering a major roadway demonstrated a disregard for the safety of others. The State's argument is not supported by Officer Gendreau’s testimony. Officer Gendreau testified that he saw Appellant pull out onto the roadway and heard the tires squealing. When asked if the car was originally parked, he replied: ‘I'm not sure if it was parked. I just know that, as it pulled out of the parking lot, the actual sound of the squealing tires is what drew my attention to the vehicle as it was pulling out of the--like, driving through the parking lot, if you will.’ There was no evidence with respect to how Appellant started his vehicle. The officer did not see Appellant ‘start a vehicle which is stopped, standing, or parked.’ § 316.154, Fla. Stat. (1999). There is no indication that squealing tires alone constitutes a traffic infraction. We are at a loss to understand how squealing tires without more constitutes a danger to public safety. Therefore, the officer did not have probable cause to believe that Appellant committed a traffic infraction, rendering a stop on that basis illegal. Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

50.  "The State appeals the order dismissing the information charging [Defendant] with obstructing or opposing a law enforcement officer with violence and battery on a law enforcement officer. We reverse." The defendant attempted to avoid a driver’s license checkpoint. "An officer at the checkpoint radioed the arresting officers to stop Osuji after she observed him make an abrupt turn without using a signal just before reaching the checkpoint and drive through a retirement home parking lot. A conviction for either obstructing a law enforcement officer or battery on a law enforcement officer requires proof that the officer was engaged in the performance of a lawful duty. Taylor v. State, 740 So.2d 89, 90 (Fla. 1st DCA 1999). The arresting officers were authorized to stop Osuji based upon section 316.074(2), Florida Statutes (2000) ("No person shall drive any vehicle from a roadway to another roadway to avoid obeying the indicated traffic control indicated by such traffic control device.") and section 316.155 (requiring use of turn signal). Violation of this statute constitutes a noncriminal traffic infraction, § 316.074(2), .155(5), for which an individual may be stopped by law enforcement. See Willis v. State, 762 So.2d 1005 (Fla. 5th DCA 2000)." State v. Osuji, 804 So. 2d 501 (Fla. 2d DCA 2002).

51.  See cases below on pretextual stops.

E.  Authority to arrest in motor vehicle cases. [Back]

1.  Officers may make a warrantless arrest for chapter 316 violations "upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver has violated chapter 316 ... when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer." § 901.15 Fla. Stat. (2000).

2.  Upon observing the defendant's demeanor the trooper arrested him for DUI. The Court held: §901.15(1) authorizes an officer to arrest a person for a misdemeanor in his presence and a DUI is a misdemeanor. State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987).

3.  Two officers arrived at the scene of an accident to investigate. Neither officer had witnessed any driving. When they arrived, the defendant and another person were in the back seat of the car. The other person identified the defendant as being the driver of the vehicle. The defendant did not respond. He also gave officers a false name and his license was suspended. One of the officers arrested the defendant for driving on a suspended license. Both officers were involved in the investigation. After completion of the investigation, one of the officers arrested the defendant for DUI. A county judge denied a motion to suppress on the grounds that there was no probable cause for the arrest. On appeal, the circuit court reversed. The court relied on §901.15(1), "which provides that an officer has probable cause to make a warrantless arrest for a misdemeanor when the offense is committed in the officer’s presence." The court found that none of the statutory exceptions to the warrant requirement were present. This was before the amendment of the statute incorporating the fellow officer rule, but here no officer witnessed the accident; therefore, that provision would not have applied even if it had been in effect. The circuit court rejected the argument that the provisions of §316.645, authorizing an officer to make an arrest for DUI, if the officer develops probable cause during an accident investigation, was an exception to the warrant requirement. On appeal, the court reversed the circuit court and quoted the statute: "‘A police officer who makes an investigation at the scene of a traffic accident may arrest any driver of a vehicle involved in the accident when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter or chapter 322 in connection with the accident.’ (Citation omitted) This statute constitutes an exception to the requirement of section 901.15 that an officer has authority to make a warrantless arrest for a misdemeanor only when the offense has been completed in his presence." State v. Hemmerly, 723 So. 2d 324 (Fla. 5th DCA 1999).

4.  Officers may make a warrantless arrest for chapter 316 violations "upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver has violated chapter 316 ... when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer." § 901.15 Fla. Stat. (2000).

5.  The arresting officer never saw the defendant drive the car or in control of the car. A security guard observed the defendant in the car when it started smoking and had him exit the vehicle. The security guard called the police. There was no accident. The trial judge suppressed the evidence in the case on the grounds that the arrest was unlawful because the misdemeanor with which the defendant was charged was committed outside of the officer's presence and there was no accident. The circuit court reversed. On appeal the court agreed with the trial judge. "Here the officer did not witness one of the essential elements of the crimes, namely the control of the vehicle by the petitioner. If we were to permit the security guard's observations which were relayed to the police as sufficient to constitute the officer's knowledge of an essential element of a crime, then as to misdemeanors there would be no point in the statutory requirement that the misdemeanor be committed in the officer's presence. Any citizen could walk up to an officer and relate the commission of a misdemeanor by someone, and the officer would have probable cause to arrest. This is clearly inconsistent with the statutory requirements. See § 901.15 (1)." Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997).

6.  A deputy saw the defendant driving and stopped his vehicle based on a description given to her in the course of a theft investigation. When the defendant exited the vehicle the deputy noticed an odor of alcohol and other signs of intoxication. She called for a backup. The backup officer arrested the defendant for DUI even though he did not witness the defendant in actual physical control of the vehicle. The original deputy processed the theft charge. The trial judge on the DUI charge suppressed the evidence resulting from that arrest on the grounds that the offense did not occur in the arresting officer's presence. On appeal, the court reversed based on §901.18, which provides that a peace officer making a lawful arrest may command the aid of other persons he or she deems necessary to make the arrest and that persons so commanded have the same authority to arrest as the summoning peace office. Thus, the court concluded that the back-up officer could arrest the defendant for DUI based on the information from the original officer who observed the offense. State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990). See also McClendon v. State, 440 So. 2d 52 (Fla. 1st DCA 1983); State v. Ostrow, 579 So. 2d 292 (Fla. 3d DCA 1991); State v. Mahoy, 575 So.2d 779 (Fla. 5th DCA 1991); State v. Leichliter, 23 Fla. Supp.2d 168 (Fla. 11th Cir. Ct. 1987); Katzenberg v. Department of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly Supp. 366 (Fla. 18th Cir. Ct. June 3, 1994).

7.  An officer (Officer A) from one city saw the involved vehicle swerving and being operated erratically within his city. Officer A sent out a radio transmission and another officer from his city (Officer B) responded. Officer A continued to follow the vehicle and clearly developed probable cause for a DUI stop. Officer B did not see any erratic driving, but relied on Officer A’s observations, which were communicated to him. Ultimately, both officers stopped the vehicle outside the city limits of their city. Officer B arrested the driver because he appeared drunk and failed the field sobriety test. He refused a breath test. The hearing officer found that the arresting officer had probable cause. On certiorari, the circuit court reversed, finding that Officer B did not have probable cause, was not in "fresh pursuit" and could not rely on the "fellow officer rule" because the case did not involve a felony. On appeal the court reversed. "Section 901.18 authorizes an officer to elicit assistance from another officer; and the second officer has the authority to arrest based on the observations and report of the first officer.(citations omitted) The combined observations of two or more officers may be united to establish probable cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well as felony offenses." Department of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

8.  One officer (Officer A) had knowledge that the defendant was involved in a pending deportation proceeding, was always armed, and had been previously apprehended by INS. That officer asked another officer (Officer B) to stop the vehicle in which the defendant was a passenger. After stopping the car, Officer B patted the defendant down. Officer A was standing next to Officer B during the pat down. Officer B discovered a gun. Officer B said that he patted the defendant down for officer safety, but that he had no idea who the defendant was or whether or not he was armed. "Not knowing these things he had to assume the worst, so he patted [the defendant] down." The trial judge denied a motion to suppress. On appeal the court affirmed. An INS agent had the right to question aliens about their immigration status. "In order to justify a seizure, however, the agent must articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country." Here the INS agent (Officer A) had sufficient facts to establish reasonable suspicion. He testified that he knew that "Smith was previously apprehended by INS, was involved in a pending deportation proceeding, and was known to be always armed." While Officer B had none of this information, he had the authority to detain the defendant pursuant to the "fellow officer" rule. Which allows an officer to presume that his or her fellow officers who tell him to make a stop have probable cause or reasonable suspicion. "It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received information from some person, usually the victim, official source, or eye witness, who it seems reasonable to believe is telling the truth. See Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971). The "fellow officer" rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, and between federal and state or local authorities." Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998).

9.  An off-duty officer observed the defendant driving erratically within the officer’s jurisdiction and followed her outside of his jurisdiction. He contacted an on-doing officer from his jurisdiction who made the stop outside that jurisdiction. The on-doing officer did not witness any bad driving. As a result of the stop, evidence of DUI was generated. The defendant was arrested for DUI. The defendant moved to suppress the evidence on the theory that the off-duty officer had no authority to make the arrest. The county judge denied the motion and certified these two questions to the district court: (1) "Whether an off-duty police officer is an officer for purpose of Florida Statutes 901.18, 901.25(2) and the ‘fellow officer’ doctrine." (2) "Whether an officer is in ‘fresh pursuit’, within the meaning of Florida Statute 901.25, where his testimony establishes that he has probable cause to arrest a suspect for violations of law committed in his jurisdiction, and he follows the suspect into a foreign jurisdiction with the intention to have the suspect stopped or arrested, and takes actions which lead to such arrest by another officer that he summoned from his jurisdiction, although he testified that he was not in ‘fresh pursuit’." The appellate court answered both questions affirmatively. An off-duty officer has authority to make an arrest pursuant to §790.052 Fla. Stat.. Thus, the off-duty officer had the authority to summon aid pursuant to §901.18 Fla. Stat., but this statute was not the basis for a lawful arrest here. Although, the off-duty officer summoned the aid, that officer did not make the arrest or participate in it as required by §901.18. The off-duty officer could provide information which could be properly relied on under the fellow officer rule. Here the off-duty officer had probable cause and under the fellow officer doctrine the on-doing officer could rely on that as the basis for the stop and arrest. He did not have to have any other basis for probable cause. However, in this case the officer developed probable cause for DUI after the stop. The off-duty officer’s information provided a proper basis for the stop. The Fresh Pursuit Doctrine is set forth in §901.25 Fla. Stat.. It applied to this case. The off-duty officer developed probable cause for a DUI as prohibited in chapter 316. A Fresh Pursuit stop is authorized for such violation. Pursuant to the Fellow Officer Doctrine the arresting officer properly relied on the off-duty officer’s information to pursue the defendant outside the officer’s jurisdiction and make the stop. The arresting officer began the chase outside his jurisdiction and made the stop outside his jurisdiction . Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999).

10.  If an officer of one county makes an arrest in another county, that officer must notify the officer in charge of the jurisdiction where the arrest is made. Both officers must, without unnecessary delay, take the arrested person before a county judge or committing magistrate of the county where the individual was arrested. §901.25(3) Fla. Stat.

11.  An officer may make an arrest outside of his jurisdiction pursuant to the "hot pursuit" doctrine. This principle authorizes an officer who observes the commission of a crime inside the city limits, to pursue the defendant into another city to make the arrest. §901.25 Fla. Stat.(1987); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1983), affirmed, 455 So. 2d 1024 (Fla. 1984); Cheatem v. State, 416 So. 2d 35 (Fla. 4th DCA 1982).

12.  Where an officer is investigating an accident and the defendant has left the scene of the accident, the officer may arrest him outside of his jurisdiction, because leaving the scene of an accident is a continuing offense and the officer is effectively in fresh pursuit. State v. Englehardt, 465 So. 2d 1366 (Fla. 4th DCA 1985).

13.  An officer can follow a suspect into a neighboring community based solely on reasonable suspicion of a traffic infraction, and lawfully make a DUI arrest outside the officer’s city based on the conduct of the defendant in the other jurisdiction. State v. Joy, 637 So. 2d 946 (Fla. 3d DCA 1994).

14.  An officer (Officer A) from one city saw the involved vehicle swerving and being operated erratically within his city. Officer A sent out a radio transmission and another officer from his city (Officer B) responded. Officer A continued to follow the vehicle and clearly developed probable cause for a DUI stop. Officer B did not see any erratic driving, but relied on Officer A’s observations, which were communicated to him. Ultimately, both officers stopped the vehicle outside the city limits of their city. Officer B arrested the driver because he appeared drunk and failed the field sobriety tests. He refused a breath test. The hearing officer found that the arresting officer had probable cause. On certiorari, the circuit court reversed, finding that Officer B did not have probable cause, was not in "fresh pursuit" and could not rely on the "fellow officer rule" because the case did not involve a felony. On appeal the court reversed. The court found that the arrest was authorized by §901.25. "Fresh pursuit includes misdemeanor offenses. Edwards. Where there are signs of the offense continuing, the officer has authority to arrest a defendant outside her jurisdiction for committing the offense within the jurisdiction. Edwards." The court also found that, "The fellow officer rule applies to misdemeanor as well as felony offenses." Department of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

15.  An off-duty officer observed the defendant driving erratically within the officer’s jurisdiction and followed her outside of his jurisdiction. He contacted an on-duty officer from his jurisdiction who made the stop outside that jurisdiction. The on-doing officer did not witness any bad driving. As a result of the stop, evidence of DUI was generated. The defendant was arrested for DUI. The defendant moved to suppress the evidence on the theory that the off-duty officer had no authority to make the arrest. The county judge denied the motion and certified these two questions to the district court: (1) "Whether an off-duty police officer is an officer for purpose of Florida Statutes 901.18, 901.25(2) and the ‘fellow officer’ doctrine." (2) "Whether an officer is in ‘fresh pursuit’, within the meaning of Florida Statute 901.25, where his testimony establishes that he has probable cause to arrest a suspect for violations of law committed in his jurisdiction, and he follows the suspect into a foreign jurisdiction with the intention to have the suspect stopped or arrested, and takes actions which lead to such arrest by another officer that he summoned from his jurisdiction, although he testified that he was not in ‘fresh pursuit’." The appellate court answered both questions affirmatively. An off-duty officer has authority to make an arrest pursuant to §790.052 Fla. Stat. Thus, the off-duty officer had the authority to summon aid pursuant to §901.18 Fla. Stat., but this statute was not the basis for a lawful arrest here. Although, the off-duty officer summoned the aid, that officer did not make the arrest or participate in it as required by §901.18. The off-duty officer could provide information which could be properly relied on under the fellow officer rule. Here the off-duty officer had probable cause and under the fellow officer doctrine the on-doing officer could rely on that as the basis for the stop and arrest. He did not have to have any other basis for probable cause. However, in this case the officer developed probable cause for DUI after the stop. The off-duty officer’s information provided a proper basis for the stop. The Fresh Pursuit Doctrine is set forth in §901.25 Fla. Stat. It applied to this case. The off-duty officer developed probable cause for a DUI as prohibited in chapter 316. A Fresh Pursuit stop is authorized for such violation. Pursuant to the Fellow Officer Doctrine the arresting officer properly relied on the off-duty officer’s information to pursue the defendant outside the officer’s jurisdiction and make the stop. The arresting officer began the chase outside his jurisdiction and made the stop outside his jurisdiction . Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999). See also State v. Greer, 761 So. 2d 343 (Fla. 4th DCA 1999).

16.  A citizen discovered two men burglarizing his vehicle. He called the police and described the offenders their vehicle. An officer located the vehicle within ten minutes at a car wash and stopped them outside the officer’s jurisdiction. The defendant moved to suppress the defendant’s confession and tangible evidence on the grounds that the stop was unlawful. The State argued that the officer was in fresh pursuit. The trial judge granted the motion. The appellate court affirmed because the vehicle was not spotted until it was outside of the jurisdiction and burglary is not a continuing offense. State v. Greer, 761 So. 2d 343 (Fla. 4th DCA 1999).

17.  Police officers received a BOLO that an armed robbery had occurred within their city. Two officers were traveling in the vicinity of the robbery. In response to the BOLO and based on additional information provided by an off-duty officer, the two officers immediately drove a short distance and entered an interstate in an effort to locate the vehicle and individuals described in the BOLO. The officers traveled on the interstate into another city, five to seven miles from the scene of the crime. Within three to three and half minutes of receiving the BOLO, the officers observed a vehicle that matched the description in the BOLO traveling at a high rate of speed. The officers followed the vehicle and saw that it had the number of black males indicated in the BOLO. They continued to follow the car for about one or one and half miles and put on their flashing lights. The car continued at a high rate of speed. This all took place in a city other than the one where the officers were employed. The vehicle pulled into an apartment complex and the occupants fled. The officers were able to detain the defendant. The officers observed material from the robbery in the car and arrested the defendant. The officers were outside their jurisdiction from the time they observed the vehicle to the time that they made he arrest. The defendant moved to suppress. The trial judge denied it because the officers were in fresh pursuit. On appeal the defendant argued that the decision in State v. Greer compelled a different result. The appellate court affirmed for reasons set forth hereafter. "[F]resh pursuit encompasses: 1) that the police act without unnecessary delay; 2) that the pursuit be continuous and uninterrupted; and 3) that there be a close temporal relationship between the commission of the offense and the commencement of the pursuit and apprehension of the suspect. We adopt these criteria for establishing what constitutes fresh pursuit.... [T]here is no logical reason why the pursuit should not be deemed a ‘fresh pursuit’ when the officers responded without unnecessary delay to the BOLO and, in continuous and uninterrupted fashion, sought and apprehended the occupants of the white Cadillac within a matter of minutes. This is not an instance where the robbery was committed in another jurisdiction and these officers took it upon themselves to make an arrest outside their jurisdiction; nor is this an instance where there was an extended time lapse between the commission of the robbery, the issuance of a BOLO and the apprehension of the perpetrators... There are insufficient facts outlined in Greer to determine whether the suppression of the evidence would be affirmed under the criteria for fresh pursuit that we enunciate in the instant case. The facts outlined in Greer do not reflect whether the pursuit was "continuous and uninterrupted." Rather, they only show that a BOLO was issued and ten minutes later the defendant was apprehended at a car wash located outside the officer's jurisdiction. However, to the extent our opinion in the instant case conflicts with Greer, we hereby recede from it. Porter v. State, 765 So. 2d 76 (Fla. 4th DCA 2000).

F.  Citizen’s arrest.  [Back]

1.  An officer may make an arrest outside of his jurisdiction as a private citizen for a felony or a breach of peace occurring in his presence or for a felony based on probable cause. Wilson v. State, 403 So. 2d 982 (Fla. 1st DCA 1980); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); Collins v. State, 143 So. 2d 700 (Fla. 2d DCA), cert. denied, 148 So. 2d 280 (Fla. 1962); Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA), rev. denied, 475 So.2d 694 (Fla. 1985); State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1983), affirmed, 455 So. 2d 1024 (Fla. 1984); Cheatem v. State, 416 So. 2d 35 (Fla. 4th DCA 1982). In order for this arrest to be lawful two elements must be met: (1) the officer must have probable cause to believe the defendant has committed a felony and (2) he must believe that the defendant has committed a felony. State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla. 1991).

2.  The dissent in State v. Sobrino, supra, contains an excellent discussion of the law on citizen's arrest.

3.  There are limitations on the application of this principle.

a.  An officer cannot make an arrest under color of office outside of his jurisdiction, but that principle has been interpreted to mean that he cannot use his authority to observe criminal activity or to secure evidence that he could not have otherwise obtained. v. Phoenix v. State, 455 So. 2d 1024 (Fla. 1984); State v. Moonie, 505 So. 2d 575 (Fla. 4th DCA 1987). The fact that he is in a police cruiser, in uniform and identifies himself as an officer has been construed by the court to not constitute "color of office". Phoenix v. State, 455 So. 2d 1024 (Fla. 1984).

b.  An officer making a stop outside of his jurisdiction was not operating under color of office where he was wearing his city police uniform, operating a police cruiser, and used his blue lights to detain the individual. State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1999).

c.  An officer cannot make a terry stop as a private citizen. State v. Schuyler, 390 So. 2d 458 (Fla. 3d DCA 1980).

d.  An officer cannot make a stop to issue a citation for a civil infraction as a private citizen. Schachter v. State, 338 So. 2d 269 (Fla. 3d DCA 1976).

e.  An officer has no authority to make a stop outside his jurisdiction unless there are exigent circumstances or he is in fresh pursuit. State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla. 1991).

4.  The following cases illustrate the application of these principles.

a.  An officer, while outside of his jurisdiction, saw the defendant's vehicle: (1) cross the center line three to seven times, (2) force approaching vehicles onto the berm, but not completely off the roadway, and (3) almost hit a bridge abutment before coming to a halt. The officer managed to stop the defendant, identified himself as an officer and detained the defendant. The court held that this was a valid citizen's arrest because such behavior constituted "a breach of the individual and collective peace of the people." This decision supports the lawfulness of an arrest by an officer outside of his jurisdiction as long as the nature of the DUI justifies the conclusion that the activity is endangering life or property. Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA), rev. denied, 475 So.2d 694 (Fla. 1985).

b.  Where an officer observes erratic driving resulting in an accident he may make an arrest as a private citizen. State v. Englehardt, 465 So. 2d 1366 (Fla. 4th DCA 1985).

c.  An officer received a report about a truck being all over the road. He located the truck and saw it cross the center line several times. This took place outside the officers jurisdiction. The court held that the officer made a lawful citizen’s arrest for breach of the peace. The court rejected any requirement that vehicles be forced off the road as in Edwards and ruled that "‘operating a motor vehicle while intoxicated is an activity which threatens the public security and involves violence. As such, it amounts to a breach of the peace.’" State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1999).

G.  Scope of search.   [Back]

1.  Probable cause to search a vehicle does not give officers authority to do a body search of the passengers in the vehicle. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 310 (1948). See also Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

2.  If there is probable cause to believe that a lawfully stopped vehicle contains contraband or evidence of a crime, officers may search any part of the vehicle and anything that it contains that may hide the object of the search. The officers "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched.’" 102 S.Ct. At 2160. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). See also Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

3.  If there is probable cause to believe that a lawfully stopped vehicle contains contraband or evidence of a crime, officers may search any of the passenger’s belongings that are in the vehicle "that are capable of concealing the object of the search." In this case, the Court upheld the search of the passenger’s purse where there was probable cause to believe that there were narcotics in the car. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

4.  "The Court in Ross put it this way: ‘The scope of a warrantless search of an automobile ... is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ 456 U.S., at 824, 102 S.Ct., at 2172. It went on to note: ‘Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’ Ibid. We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment." California v. Acevedo, 500 U.S. 565, 111 S. Ct.1982, 114 L. Ed. 2d 619 (1991).

5.  "Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." This case overruled United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.d.2d 538 (1975). See also Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235. California v. Acevedo, 500 U.S. 565, 111 S. Ct.1982, 114 L. Ed. 2d 619 (1991).

6.  An officer smelled the odor of marijuana coming from a vehicle that he had lawfully stopped and then smelled it on the person of the defendant, who had exited the vehicle. The officer searched both the interior of the vehicle and the trunk and found a container in the trunk. It contained marijuana. Before searching the vehicle, the officer did a pat down of the defendant and discovered a baggie of marijuna. He arrested the defendant .The trial court denied a motion to suppress all of the marijuana. On appeal, the Supreme Court affirmed. "[I]t is important at the outset to analyze the limited occasions upon which the United States Supreme Court has spoken regarding the automobile exception to the warrant requirement. There are three principal cases which impact the question presented here. In 1925, Chief Justice Taft penned the opinion of the Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Faced with a situation in which federal prohibition agents had stopped and searched the automobile of suspected bootleggers without a warrant, the Court held: ‘[T]he true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. ‘ Id. at 149, 45 S.Ct. 280. With this opinion, the Court created what has become known as the automobile exception to the warrant requirement. The Court concluded that because probable cause existed, the government agents could search ‘behind the upholstering of the seats’ for contraband. Id. at 136, 45 S.Ct. 280. As the opinion did little to elaborate upon the scope and limitations upon the exception, the actual definition of the exception remained extraordinarily unclear. Probably the most important decision of the United States Supreme Court for guidance in the instant action is United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). First, the Court established there the scope of the Carroll automobile exception to the warrant requirement. The Court stated, ‘The scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause.’ Id. at 823, 102 S.Ct. 2157. Indeed, the scope of a warrantless search of a car ‘is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ Id. at 824, 102 S.Ct. 2157. Thus, the crux of the Ross holding was that it is the extent of the law enforcement officer’s probable cause in each particular situation that defines the permissible magnitude of the warrantless search. After defining the scope of the automobile exception in the broad fashion described above, Justice Stevens specifically addressed two seemingly recurrent factual scenarios within the Ross opinion. First, he spoke to the situation in which law enforcement officers have probable cause to search a specific item or container, which is eventually placed within an automobile. In this setting, ‘[p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’ Id. Thus, when probable cause only concerns one specific item and the police know where that item is within the automobile, their warrantless search cannot extend to other areas of the car. The second facet of the Ross opinion addresses the situation in which more generalized probable cause to search an automobile is possessed by the police. In this type of situation, the police do not know where the contraband is contained within the car, but they only have probable cause to believe that it is within the confines of the vehicle. Faced with this situation, the Court stated that ‘[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’ Id. at 825, 102 S.Ct. 2157. Finally, in 1991 the Supreme Court further refined the law in this area with its decision in California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The Court reaffirmed the first facet of Ross by holding that where police officers knew that contraband had been placed in the trunk of a vehicle, while they could open the container within which the contraband had been secreted, their probable cause to search for that contraband did not extend beyond the trunk area to the rest of the vehicle. See id. at 580, 102 S.Ct. 2157. Specifically, the Court stated that ‘[t]he facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.’ Id. However, nowhere in the opinion did the Court restrict the other component of its prior Ross holding. Thus, we conclude that the legitimate scope of the power of police officers to search an entire automobile, based upon the Ross generalized probable cause to do so, was not altered by the United States Supreme Court's Acevedo opinion. It is our view that Acevedo did not speak directly on the issue before us today, so we must conclude the district court misapplied Acevedo in its decision below. As previously noted, the Supreme Court’s Acevedo opinion addressed the situation in which police officers suspected that a certain compartment or area of a motor vehicle contained contraband. See Acevedo, 500 U.S. at 580, 111 S.Ct. 1982. In that scenario, ‘p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’ id. The Supreme Court, however, did not speak on the situation in which the police officer has probable cause to believe the car contains contraband, but does not know precisely where it is secreted within the vehicle-precisely the issue before us today.... As Acevedo is inapposite here, the United States Supreme Court opinion most applicable to the facts before us is the Ross decision. There, the Supreme Court stated, ‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of that vehicle and its contents that may conceal the object of the search.’ 456 U.S. at 825, 102 S.Ct. 2157. Certainly, the broad statements contained in the Supreme Court’s Ross opinion guide our decision here. Indeed, the Court’s pronouncements in Ross alone could dictate a conclusion in the instant case.... [T]he police officer here had probable cause to search both the passenger compartment and the trunk of Betz’s automobile. First, of course, Officer Harrold smelled ‘a very strong odor of marijuana coming directly out’ of the respondent’s car window. As the odor of previously burnt marijuana certainly warranted a belief that an offense had been committed, this unquestionably provided the police officers on the scene probable cause to search the passenger compartment of the respondent’s vehicle.... In addition to the marijuana odor, Officer Harrold testified that Betz attempted to draw him away from the vehicle by exiting the vehicle and approaching him before he could reach the rear of Betz’s auto. Betz also became extremely ‘nervous’ and ‘jittery’ during his pre-search interaction with Officer Harrold. When the police officer attempted to pat-down search the respondent, he pushed off of the car two times during the frisk--twice acting in an extraordinarily suspicious manner. Finally, during his frisk of the respondent, Officer Harrold found and confiscated a storage bag containing marijuana. Considering the totality of the circumstances presented to the police here, we conclude that Officer Harrold possessed probable cause to search the entirety of the respondent's automobile, including the trunk. ... Based upon the foregoing, we hold that based upon the totality of the circumstances within the perception of the law enforcement officers in the instant case, probable cause to search the entirety of the respondent's vehicle existed. Therefore, we quash the Second District's decision below. Additionally, we approve the result reached by the Fifth District Court of Appeal in State v. Jarrett, 530 So.2d 1089 (Fla. 5th DCA 1988). State v. Betz, 815 So. 2d 627 (Fla. 2002).

7.  The entire vehicle can be searched including trunk and engine compartment. Cole v. State, 559 So. 2d 622 (Fla. 3d DCA 1990); Hall v. State, 562 So. 2d 714 (Fla.1st DCA 1990).

8.  The trained trooper had probable cause to search the entire vehicle when the trooper saw marijuana seeds in the tray of the car door. Greene v. State, 532 So. 2d 1309 (Fla. 5th DCA 1988).

9.  The odor of burnt marijuana coming from a vehicle gives an officer probable cause to stop the vehicle and to search the entire passenger compartment and all of its occupants. State v. Betz, 815 So. 2d 627 (Fla. 2002). See also State v. K.V., 2002 WL 1332506 (Fla. 4th DCA June 19, 2002).

10.  If it was a vehicle search incidental to a lawful arrest, was the defendant "a recent occupant" of the vehicle, which would allow a search of the interior of the vehicle and all sealed containers found therein? New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

a.  Where an officer makes a lawful arrest of the driver of a vehicle the officer may search the inside of the car and all the containers found in it. "[A] hatchback which can be reached from inside the car is part of the passenger compartment and, thus, subject to search." State v. Dexter, 596 So. 2d 88 (Fla. 2d DCA 1992).

b.  The decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981, establishes a "'straightforward rule' that the scope of a search incident to an arrest includes the interior of an automobile where the arrestee is a recent occupant of the automobile." In this case, the driver of the vehicle was lawfully arrested and a search revealed drugs in the passenger's purse which was found in the interior of the vehicle. It was closed. The passenger argued that the search was unlawful because she had not consented. On appeal the court ruled that under Belton the search of the purse was lawful even though it belonged to the passenger and the passenger did not consent. State v. Moore, 619 So. 2d 376 (Fla. 2d DCA 1993).

c.  The defendant was on the street and no where near his vehicle. He was detained by officers and officers took his car keys and searched the "car even though [the defendant] was not in or near the car at the time of his detention." The defendant had admitted that officers would probably find marijuana in the car. The state argued that this admission gave the officers probable cause. They did find drugs in the car. A motion to suppress was denied. On appeal the court reversed. "Officers are allowed to search a vehicle incident to the lawful arrest of a recent occupant. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Here [the defendant] was never seen in or near the vehicle. Even if he were lawfully in the officers' custody when they learned where his car was parked, they had no legal basis to search his car without a warrant or his consent. The search was too remote in both place and time to be justified as a search-incident-to-arrest." Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

d.  The defendant was arrested for a misdemeanor. The court upheld a search of her vehicle because she was a recent occupant. "The Belton rule is ‘applicable to all cases involving the arrest of a recent occupant of an automobile, without regard to the facts in the particular case.’ Chapas v. State, 404 So.2d 1102, 1104 (Fla. 2d DCA 1981)." State v. Ciucio, 548 So. 2d 1184 (Fla. 2d DCA 1989).

e.  The defendant was arrested for urinating in the street behind a car. Officers searched that car incident to the arrest. On appeal the court held that the search was unlawful because there was no proof that the defendant was a recent occupant of the vehicle. Patrick v. State, 603 So. 2d 640 (Fla. 2d DCA 1992).

f.  The defendant had an accident, left the vehicle, and came back to try to retrieve the vehicle. The defendant was arrested two and half hours after the defendant left the vehicle. Officers searched the vehicle. The court ruled that the search was unlawful because the defendant was not a recent occupant of the vehicle, since he had been out of the vehicle for two and half hours. State v. Vanderhorst, 419 So. 2d 762 (Fla. 1st DCA 1982).

g.  EXTREMELY IMPORTANT! The defendant pulled up to a house where arrests were being made for narcotics crimes. An officer saw him drive up. The defendant exited his vehicle and the officer met him at the rear of the defendant's car. The officer asked the defendant for his driver's license. A license check revealed an outstanding warrant. The officer arrested the defendant and searched his car. Five minutes elapsed between arrest and search of car. That search revealed contraband. The trial judge granted a motion to suppress. On appeal the court reversed. The trial judge relied on State v. Howard, 538 So.2d 1279 (Fla.5th DCA 1989). The appellate court distinguished Howard and relied on Belton. The Supreme Court reversed the district court and ruled "that Belton's bright-line rule is limited to situations where the law enforcement officer initiates contact with the defendant, either by actually confronting the defendant or by signaling confrontation with the defendant, and the officer subsequently arrests the defendant regardless of whether the defendant has been removed from or has exited the automobile. Applying the aforementioned analysis to the present situation, the record is clear that the defendant did not exit the vehicle upon the direction of the law enforcement officer. Because Belton does not apply, the trial court must determine whether the factors in Chimel justify the search of Thomas's vehicle." That means pursuant to Chimel, the trial court must determine whether the officer’s safety was endangered or whether the preservation of evidence was in jeopardy. Thomas v. State, 761 So. 2d 1010 (Fla. 1999). See also Patty v. State, 768 So. 2d 1126 (Fla. 2d DCA 2000).

h.  "In Thomas, the supreme court held that the police are authorized to search a car incident to arrest under a Belton analysis only if "the law enforcement officer initiates contact with the defendant, either by actually confronting the defendant or by signaling confrontation with the defendant" while the defendant is still in the car. Thomas, 761 So.2d at 1014. Absent such a confrontation, the police can search the vehicle only under a case-by-case analysis of the factors set out in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This generally means that the search is permissible only to preserve evidence or protect the officer's safety. Preservation of evidence and protection of officer safety were not issues in this case, and the facts did not justify a search of Mr. Kavallierakis's vehicle under a Chimel analysis. Consequently, the State had the burden to establish that the police officer initiated contact with Mr. Kavallierakis while he was still in the car. We conclude that Thomas requires proof that the police contact is confrontational in nature. In this case, at best, the State presented evidence that the officer greeted Mr. Kavallierakis in a friendly manner while he was exiting the car or moments thereafter. Because the State failed to prove the necessary confrontational contact, we must reverse the trial court." The trial court denied a motion to suppress evidence seized when the officer stopped the vehicle and searched the vehicle after the defendant existed. Kavallierakis v. State, 790 So. 2d 1201 (Fla. 2d DCA 2001).

i.  An officer made a lawful traffic stop and subsequently lawfully arrested the defendant for witness tampering. The search of the vehicle was lawful. "An officer may search the passenger compartment of a vehicle and examine the contents of any container therein following the lawful custodial arrest of a defendant. Consent is not needed. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). " State v. Emmanuel, 779 So. 2d 310 (Fla. 2d DCA 1998).

11.  Officer had consent to search a vehicle. He observed a panel ajar and based on his many years of experience and the other circumstances of the stop he had probable cause to pry open the panel. Those circumstances included speeding, confusion about destination and point of origin, and nervousness. State v. Ramirez, 625 So. 2d 119 (Fla. 5th DCA 1993).

12.  The areas of the passenger compartment in which a weapon may be placed or hidden may be searched if the officer has "a reasonable belief based on specific articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." State v. Gonzalez, 562 So. 2d 705 (Fla. 3d DCA 1990); Stanley v. State, 559 So. 2d 460 (Fla. 4th DCA 1990); Morales v. State, 557 So. 2d 893 (Fla. 4th DCA 1990).

13.  A stop for a traffic violation justifies a detention solely for the purpose of issuing the citations. Officers did not have the right to pat down and search a defendant, who was a passenger, because he kept sticking his hand in his pocket when they had no reason to believe he was armed. E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991).

14.  "When an officer in a roadside encounter perceives a threat to safety founded on articulable facts and rational inferences which would warrant a reasonably prudent person's fearing a danger, the officer may conduct a weapons search of the passenger compartment." Snelling v. State, 591 So. 2d 246 (Fla. 4th DCA 1991).

15.  Officers chased down a vehicle because it had an expired temporary tag. When the driver could not produce a license the officers asked the occupants to exit. The defendant was a passenger and he made "a furtive movement". An officer did a pat down and discovered a gun. The officer who did the search said it was because of the movement, but other officers said it was because the defendant fit a profile. The trial judge granted a motion to suppress. On appeal the Court reversed and said that the furtive movement was sufficient for a pat down of the defendant even though some reasons given by other officers would not have warranted a pat down. State v. T.P., 588 So. 2d 286 (Fla. 3d DCA 1991).

16.  When the driver of a vehicle commits a traffic infraction, he or she subjects himself or herself to the inconvenience of the stop and a drug dog sniff of the car so long as it is "conducted within the time required for the issuance of the citation." In this case when the officer ordered the parties out of the car, he ordered the passenger over her objection to leave her purse in the car during the drug dog sniff. If the officer was concerned about the contents of the purse for safety reasons as he claimed, he could have patted the purse down. Requiring the passenger "to leave it behind so that it would be exposed to a drug sniff is an impermissible seizure. If the officer cannot extend a lawful stop beyond the time it takes to write a citation in order to have the k-9 unit perform its task ... certainly he may not subject those who are not being 'detained' under any lawful authority to such a test." The court concluded that both the defendant and her property were seized. McNeil v. State, 656 So. 2d 1320 (Fla. 5th DCA 1995).

H.  Forced exit of occupants.  [Back]

1.  "[O]nce a vehicle has been lawfully stopped, a police officer may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L. Ed.2d 331 (1977)." State v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995).

2.  The rule in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L. Ed.2d 331 (1977) has been extended to passengers. If an officer lawfully stops a car, the officer may order the passengers to exit the vehicle without any additional grounds for such action. This is based purely on officer safety and establishes a bright line test. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

3.  The occupants may be required to exit the vehicle after a traffic stop. State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990).

4.  An order to exit a vehicle is a Fourth Amendment seizure. An officer may order passengers as well as drivers to exit the vehicle during a traffic stop, "as a protective measure for his own safety, without any additional evidence of wrongdoing or danger." In this case, an officer ordered a passenger to exit a vehicle. Here the detention was unlawful because it clearly had nothing to do with officer's safety. The officer did not even maintain that it did. The defendant in this case kept being verbally abusive to the officer. "More importantly, [the officer] did not initially make such an order and never disturbed the two rear-seat passengers at all. It is therefore obvious that the order was issued to [the defendant] alone because of his 'hostile-attitude.' This is not constitutionally enough." R.H. v. State, 671 So. 2d 871 (Fla. 3d DCA 1996).

5.  Officers "may order a passenger to get out of a lawfully stopped vehicle without reasonable suspicion. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)." J.B. v. State, 718 So. 2d 1280 (Fla. 4th DCA 1998); State v. Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).

I.  Was the search the result of an unlawful pretextual stop?   [Back]

1.  Development and changes in legal standards.  [Back]

a.  In Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987), the Court upheld a stop for an illegal turn even though the officers would not have stopped the defendant but for the fact that he was a suspect in a murder. It appeared that the Court adopted the rule set forth in State v Ogburn, 483 So. 2d 500 (Fla. 3d DCA 1986), which was that stopping a person for a minor traffic infraction to investigate unrelated criminal activity is not an unlawful pretext stop if any citizen could be stopped for the infraction. See also, Mullins v. State, 366 So. 2d 1162 (Fla. 1978); Bascoy v. State, 424 So. 2d 80 (Fla. 3d DCA 1982).

b.  The Hansbrough decision was clarified in Kehoe v. State, 521 So. 2d l094 (Fla. 1988), where officers stopped the defendant for having a bent tag in order to investigate unrelated criminal activity. The Supreme Court noted that it is unlikely that a reasonable officer would have stopped the defendant solely for that violation and that the defendant was really stopped because of suspicion of other criminal activity. The Court recognized the fact that "When the police realize that they lack a founded suspicion, they sometimes attempt to justify a stop on some obscure traffic violation." The Court said: "Police officers ordinarily would likely stop somebody for making an illegal turn. For this reason Hansbrough is not controlling in situations where the traffic violation is too minor to warrant detention absent some other motivation. We decline to adopt the Ogburn 'could arrest' approach. . . . This Court . . . will not allow officers to get around the fourth amendment's mandate by basing a detention upon a pure pretextual stop. The state must show that under the facts and circumstances a reasonable officer would have stopped the vehicle absent an additional invalid purpose."

The Court dealt with the following certified question: "Does the ruling in Kehoe v. State, 521 So.2d 1094 (Fla.1988), require suppression of evidence obtained as a result of the stop of a motor vehicle for a minor traffic violation where there is no evidence that the stop was pretextual, but the state fails to affirmatively establish by evidence that a reasonable police officer would have routinely stopped a motor vehicle for the same violation?" The Court answered with a qualified affirmative. In answering this question, the Court reviewed the U.S. Supreme Court decisions and other decisions and concluded that there are three different approaches to this issue, and the U.S. Supreme Court has not resolved the matter. The three approaches are: (1) the subjective approach (officer's actual intent); (2) objective test (stop lawful if officer lawfully could have made stop); (3) reasonable officer approach (stop lawful if a reasonable officer would have made the stop based on the traffic offense without some other reason). The last of these is the test adopted in Kehoe v. State 521 So.2d 1094 (Fla.1988). "The reasonable officer test is better suited for an individualized inquiry because it also asks whether the usual police practice would be to effect a stop when confronted with a particular kind of minor infraction. In sum, would the officer have effected the stop absent any improper motive? If the answer is "yes," then the stop was lawful even if a pretextual motive may have influenced the officer's actions. As is obvious, this test by definition would never bar a stop where there is probable cause to suspect more serious offenses, including felonies or crimes involving harm or the threat of harm to others, or where exigent circumstances exist. More serious offenses always will provide independent justification, however pretextual the stop may be. Rather, the reasonable officer test applies exclusively where a stop is justified solely by a minor infraction, generally those that are purely regulatory in nature and that do not address conduct potentially harmful to other persons or property." The Court adopted the position set forth in United States v. Bates, 840 F.2d 858 (11th Cir.1988). The Court concluded that in this case the court adopted a rule "that a stop for a minor infraction cannot be deemed pretextual on appeal where (1) the officer was acting within the proper scope of lawful authority, and (2) the record below contains competent substantial evidence that the stop was not objectively pretextual without regard to any subjective intentions, as demonstrated by the fact it was a usual police practice, and (3) the trial court has so found." The Court found that this was generally consistent with state decisional law. "[T]he fact that a stop fails under the reasonable officer test does not warrant dismissal of evidence if some other valid basis for the stop existed, including a probable-cause arrest or arrest by warrant." The Court also relied on the decisions in Doctor v. State, 596 So. 2d 442 (Fla.1992) and State v. Riley, 638 So. 2d 507 (Fla.1995), in support of the proposition that if the stop was for conduct that is not unlawful, the stop is improper regardless of what the evidence shows concerning the pretext issue. "In other words, it did not matter whether the trial court below had found competent substantial evidence that these stops were a routine practice of similar officers, because the stop