Opinion
No. 88-2610.
November 29, 1989. Rehearing and Stay Denied January 5, 1990.
Appeal from the Circuit Court, Palm Beach County, Carl Harper, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellant.
Douglas N. Duncan of Wagner, Nugent, Johnson, Roth, Romano, Eriksen and Kupfer, P.A., West Palm Beach, for appellee.
The State appeals the trial court's order granting the suppression of cocaine found as a result of an illegal search of appellee's luggage. The State claims that the search of the bag was lawful as it was sufficiently contemporaneous with appellee's arrest. We disagree and affirm.
This began as another bus search. Upon reaching appellee's seat on the bus, one of the officers introduced himself and asked appellee if he minded talking to him. Appellee was then asked about his luggage which he pointed out to the officer. The officer then asked if he could search appellee's luggage and advised him of his right to refuse permission. At that moment, one of the other officers had removed another bag no one had claimed and said, "I found some cocaine." Appellee, without answering the officer's earlier question regarding consent, then punched the officer, shoved him aside, and ran off the bus. Other officers followed him and ultimately arrested appellee several blocks from the bus station. After appellee fled from the bus one of the officers removed appellee's luggage and threw it in his patrol car. The officers could not testify that appellee was even present when the suitcase was searched, but it was not searched at the time or place of the arrest of appellee several blocks from the bus station.
In Stone v. State, 547 So.2d 158, 162 (Fla. 4th DCA 1989), this court stated:
. . . a search that is not remote in time or place should be deemed to be a reasonable intrusion if the object of the search had been within the defendant's immediate area of control just prior to his detention and the seizure.
In Stone, the defendant and his luggage were removed from the bus when he admitted that he had marijuana in one of his bags on the overhead rack. Outside the bus, the canine alerted on both of the defendant's bags. The defendant was then placed under arrest and the bags were searched. At all times both the defendant and the bags were in close proximity.
This case is distinguishable from Stone in that appellee was arrested several blocks from the bus station, and the search was clearly remote in place from the arrest. Thus, it is similar to Nease v. State, 484 So.2d 67 (Fla. 4th DCA 1986), rev. denied, 494 So.2d 1153 (Fla. 1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987), which held that a luggage search under similar circumstances was invalid under the Fourth Amendment, citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Here, the evidence clearly shows that the officers had seized the luggage prior to the arrest, put it within their possession, and searched it without the appellee ever being present. Thus, it cannot be justified as a search incident to a lawful arrest even under Stone.
The other arguments propounded by the State were not made to the trial court below and are thus not properly preserved for review, Sapp v. State, 411 So.2d 363 (Fla. 4th DCA 1982).
Affirmed.
GLICKSTEIN, J., concurs.
ANSTEAD, J., concurs specially with opinion.
Although I agree that the search of appellee's luggage was improper under the United States Supreme Court's holding in United States v. Chadwick, I am not as certain that this case is not in conflict with our recent decision in Stone v. State, 547 So.2d 158 (Fla. 4th DCA 1989), approving the search of a defendant's luggage. Other than the defendant bolting from the scene and being caught a few blocks away, this case is indistinguishable from Stone. In Stone, as in this case, it was undisputed that the defendant's luggage had already been seized by the police and that the defendant had no access to the luggage at the time it was searched.
In Nease v. State, 484 So.2d 67-70, another case whose critical facts cannot be distinguished from those of Stone, this court held:
We conclude that for all practical purposes Nease was under arrest at this time. The methaqualone found in his possession, therefore, was admissible because it was obtained in a search pursuant to a lawful arrest. We reach a different conclusion, however, with regard to the cocaine found in Nease's suitcase. Because we conclude that by running Nease effectively withdrew his consent to a search of his luggage, a warrantless search of those bags was improper. The Fourth Amendment protects an owner's expectation of privacy in the contents of a closed container. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Chadwick, the court concluded that a warrant was necessary to search a locked footlocker seized contemporaneously with the defendant's arrest, despite the fact that the police had probable cause to believe it contained marijuana. The court stated:
Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.
433 U.S. at 15, 97 S.Ct. at 2485, 53 L.Ed.2d at 51.