State v. Ross , 209 So. 3d 606 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D15-3682
)
DAMIEN TREMAINE ROSS, )
)
Appellee. )
)
Opinion filed December 9, 2016.
Appeal from the Circuit Court for Manatee
County; Susan B. Maulucci, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellant.
Brett D. McIntosh of McIntosh Law,
Sarasota, for Appellee.
SALARIO, Judge.
This is an appeal by the State of an order suppressing evidence on
grounds that it was obtained in violation of the Fourth Amendment. Damien Ross is
charged with possession of more than twenty-eight and less than 200 grams of cocaine,
fleeing and eluding an officer, and reckless driving. The cocaine was discovered during
warrantless searches of the home where Mr. Ross was arrested and the car he was
driving on the night of his arrest. We affirm without comment as to the search of the
home. We reverse as to the search of the car, however, because a warrantless search
became authorized when the police saw cocaine in plain view in the vehicle.1
The police encountered Mr. Ross while investigating a noise complaint at
an apartment complex in the middle of the night. Two police officers saw him asleep in
the driver's seat of his car while music was blasting from the car's speakers. An officer
attempted to wake him by rapping on the window and identifying himself. After several
minutes of this, Mr. Ross finally woke up. He rolled the window down slightly, told the
officers "fuck that," and then drove off. The officers followed him as he drove with no
headlights at speeds in excess of eighty miles an hour. The officers turned on the lights
and sirens, but he refused to stop. Apparently instructed not to continue the chase, they
lost sight of Mr. Ross when he made a left turn against a red light.
The officers went to an address matching the car's registration but then
got a radio call reporting that a man who looked like Mr. Ross had run into another
home nearby. When they arrived at that address, they found Mr. Ross's car parked on
the grass lawn of the home. The officers went to the front and side doors of the house
to look for Mr. Ross when two residents, a woman and her uncle, opened the doors.
The officers went through the house, knocking on doors and calling for people to come
out of the rooms. Mr. Ross answered a knock on a bedroom door and was arrested on
the spot.
1
The quantities of cocaine found in the car and the house appear to be the
sole basis of the possession charge. The trial court did not make any findings as to
whether the quantity of cocaine found only in the car was sufficient to support the total
quantity of cocaine charged. We make no determination on that issue either, other than
to note that it is a question that may need to be resolved on remand.
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During the investigation following the arrest, Sergeant Shannon Seymour
arrived at the scene. In anticipation of having Mr. Ross's car towed, Sergeant Seymour
approached the vehicle to see if it had been damaged. He looked through a window
and saw a half of a crack cocaine cookie—a circular piece of crack cocaine—on the
floor by the front passenger's seat. Without obtaining a warrant, the police thereafter
conducted a search of the inside of the car. That search uncovered a full crack cocaine
cookie and some powder cocaine in addition to the half-cookie of crack cocaine
Sergeant Seymour viewed through the window.
Mr. Ross moved to suppress the evidence found in the car, asserting that
the warrantless search of the car violated the Fourth Amendment. The State argued
that Sergeant Seymour's observation of crack cocaine from outside the vehicle justified
a warrantless search. The trial court rejected that contention and granted the motion to
suppress. We review that decision under a mixed standard: the trial court's findings of
historical facts are reviewed for competent substantial evidence, and its conclusions of
law and application of the law to the facts are reviewed de novo. See State v. K.S., 28
So. 3d 985, 987 (Fla. 2d DCA 2010); Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA
2003).
Applying the law to the historical facts, we conclude that the search of Mr.
Ross's car was authorized under the automobile exception to the Fourth Amendment's
warrant requirement. Generally speaking, that exception permits a warrantless search
of a readily mobile vehicle when the police have probable cause to believe that it
contains contraband. See Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (citing
California v. Carney, 471 U.S. 386, 393 (1985)). In State v. Green, 943 So. 2d 1004,
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1007 (Fla. 2d DCA 2006), our court held that the exception applies where, as here,
police observe drugs in plain view in a parked car after having arrested the owner.
The defendant in Green was arrested for gambling at an apartment
complex, and a search incident to the arrest turned up keys to a Ford Taurus, which the
police seized. Id. at 1005. The police then found the car, shined a flashlight into the
windows, and observed a razor blade with white residue on the center console. Id. The
police used the keys they seized to open the vehicle, which they then searched. The
search resulted in the seizure of drugs and paraphernalia. Id. Upon the defendant's
motion, the trial court suppressed the evidence because the police searched the car
without a warrant. Id.
Reversing the suppression order, we held that the automobile exception
authorized the warrantless search. Id. at 1006-07. We rejected the defendant's
contention that the exception applied only when exigent circumstances were present—a
finding that would have been unlikely when at the time of the search the car was
parked, the owner arrested, and the keys in the possession of police—and explained
that the warrantless search was authorized once the police developed probable cause.
Id. at 1006 ("[T]he justification to conduct such a warrantless search does not vanish
once the car has been immobilized." (quoting Michigan v. Thomas, 458 U.S. 259, 261
(1982))). Because the police had the requisite probable cause when they observed
drug paraphernalia in the car, the subsequent warrantless search of the automobile did
not violate the Fourth Amendment. See id. at 1005-06.
This case is not different from Green in any respect that matters. Mr.
Ross was arrested after fleeing and eluding police officers and hiding in a home. After
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his arrest, a police officer looked through the window of his car and saw crack cocaine
in plain view. Sergeant Seymour's lawful observation of illegal drugs in the car gave the
police probable cause to believe that the car contained evidence of a crime.2 The
warrantless search of the car was thus authorized by the automobile exception. Green,
943 So. 2d at 1006-07; see also State v. Gardner, 72 So. 3d 218, 220-21 (Fla. 2d DCA
2011) (reversing order suppressing evidence and finding probable cause to conduct
warrantless search of a parked automobile for evidence of a shooting where police had
lawfully arrested the vehicle's owner for the shooting two hours earlier); State v. Fischer,
987 So. 2d 708, 711-13 (Fla. 5th DCA 2008) (holding that warrantless search of car was
authorized where police observed white powder that appeared to be cocaine in open
view therein).
The trial court nonetheless suppressed the evidence obtained during the
search based, at least in part, on a belief that "something more" must have happened
between the time Mr. Ross was arrested and the time Sergeant Seymour saw the crack
2
Although the lawfulness under the Fourth Amendment of Sergeant
Seymour's observation of the drugs was treated by the trial court—and is treated by the
State on appeal—under the plain view doctrine, it is at least possible on these facts that
the open view doctrine actually applies here. See State v. Rickard, 420 So. 2d 303,
304-06 (Fla. 1982) (distinguishing between plain view and open view based on whether
observation occurred from a constitutionally protected area, based on the defendant's
reasonable expectation of privacy). Assuming that the plain view doctrine applies,
Sergeant Seymour's observation of the interior of the car from the yard was
constitutionally permissible because it was undisputed that he was legitimately in the
yard as part of an investigation, the crack cocaine cookie was in plain view, and its
illegal character was, on the testimony presented, immediately apparent. See Young v.
State, 41 Fla. L. Weekly D2352 (Fla. 2d DCA Oct. 14, 2016). Assuming instead that the
constitutionally protected area was limited to the car itself rather than the property on
which the officer stood, the same result would obtain under the open view doctrine. See
Adoue v. State, 408 So. 2d 567, 571 (Fla. 1981) ("[W]hen the officers looked through
the window of the airplane and saw marijuana, they stood in a nonconstitutionally
protected area where they had a lawful right to be.")
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cookie in the car. That belief appears to have been founded on testimony from the
arresting officers that the car windows were closed at the time of the arrest and
testimony from Sergeant Seymour that at least some of the windows may have been
open when he arrived at the scene. The trial court, however, made no findings (1) that
described what the "something more" was or could have been; (2) that were at odds
with Sergeant Seymour's testimony that a half-cookie of crack cocaine was in plain
view; or (3) that the testimony of Sergeant Seymour or any of the officers involved
lacked credibility.
We are left, therefore, with a mere suspicion that "something" happened
between the time of the arrest and the time when Sergeant Seymour saw the crack
cookie. That suspicion cannot support the suppression order for two reasons.
First, the trial court credited Sergeant Seymour's testimony that he saw
the half-cookie of crack cocaine in plain view on the front passenger-side floor of the
car. Although it might be possible that an unidentified person rolled the windows down
between the initial arrest and Sergeant Seymour's observation of the drugs on the car
floor, that unestablished possibility is not determinative at a suppression hearing
because no competent substantial evidence to that effect was presented. See Fla. R.
Crim. P. 3.190(g)(3) ("If the court hears the motion [to suppress] on its merits, the
defendant shall present evidence supporting the defendant's position and the State may
offer rebuttal evidence."). Nor was such a fact alleged in the motion to suppress such
that the State was required to rebut it. The only evidence presented was that the officer
saw the cocaine from outside the car. Taking the evidence in that way, the crack cookie
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was openly visible, and, as a result, the police had probable cause to believe that they
would find contraband inside Mr. Ross's car.
Second, the officer who had the initial encounter with Ross at the
apartment complex testified without contradiction that he could see into the car through
the rolled-up windows. Thus, under the undisputed facts of this case, whether the
windows were up or down when Sergeant Seymour saw the cocaine has no direct
bearing on any factual question regarding whether he saw it. See generally State v.
Navarro, 464 So. 2d 137, 140 (Fla. 3d DCA 1985) (en banc) ("A trial court's findings
must be accepted by the appellate court if there is evidence to support the findings. This
rule is, by definition, applicable only to a case in which the evidence supports the trial
court's findings and is not applicable to a case in which the evidence does not support
the findings."). The trial court's reliance on its suspicion that the windows were opened
between the time of the arrest and the time of Sergeant Seymour's observation was not
a basis upon which it could deviate from its conclusions that the officer's testimony was
credible and that the crack cocaine was in plain view. That gave the police probable
cause to conduct a warrantless search under the automobile exception.
For these reasons, although we affirm that portion of the trial court's order
suppressing the evidence found inside the home, we reverse that portion of the order
suppressing the evidence found inside the car. We remand the case to the trial court
for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; remanded.
KELLY and BADALAMENTI, JJ., Concur.
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