Florida 2d DCA conflicts on Gant Issue with 5th DCA

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STATE, v. McCULLOUGH, 37 Fla. L. Weekly D49b (Fla. 2d DCA, Dec 30,2011) – The State appeals from the trial court’s order granting Sharon Laverne McCullough’s motion to suppress evidence seized following her arrest. Because the search of McCullough’s car was illegal under the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009), we affirm.

McCullough was arrested during a “warrant round-up.” The arresting officer executed the warrant after McCullough pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. After McCullough locked the vehicle door, the officer effectuated the arrest under the outstanding warrant by instructing her to put her hands behind her back for handcuffing. Before being handcuffed, McCullough threw her vehicle keys to her son, who entered the residence at which the car was parked. McCullough was then escorted into the patrol car “without incident.” No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough’s son to give him the keys. After McCullough’s son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough’s key, and conducted a search inclusive of McCullough’s purse that was inside the car. The search revealed cash, marijuana, and cocaine inside McCullough’s purse.

The State argues on appeal that because the offense underlying the outstanding arrest warrant was drug-related, it necessarily follows that a search of McCullough’s vehicle incident to that arrest was per se reasonable and no further analysis is appropriate. If this reasoning is accurate, then an arrest warrant for a single sale of perishable contraband would authorize a search of the arrestee’s vehicle at any time, whether days, months, or even years later, despite the fact that it may not be reasonable to believe any evidence of the original illegal act remained. We do not believe this is what the Supreme Court envisioned when it explicitly conditioned the search of a secured arrestee’s vehicle on a reasonable belief that evidence of the underlying offense exists inside.

Gant holds that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer’s patrol car when her car was searched, this case concerns only the second prong of Gant’s holding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough’s vehicle contained evidence of the offense underlying her arrest. From the officer’s lawful standpoint outside the vehicle, he observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior — at an unknown location — would exist inside McCullough’s vehicle at the time of her arrest.

Order granting motion to suppress is affirmed. Certify conflict with Brown v. State, 24 So. 3d 671, 677 (Fla. 5th DCA 2009).

Eric J Dirga, PA

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