Opinion
No. 74-1359.
February 6, 1976.
Appeal from the Circuit Court for Orange County, Cecil H. Brown, J.
Kirk N. Kirkconnell and Chandler R. Muller, Muller Kirkconnell, Winter Park, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was convicted of possession of a controlled substance upon a plea of nolo contendere conditioned upon reserving his right to appeal the conviction and seek review of the order denying his motion to suppress.
The tangible evidence supporting the charge against appellant was discovered and seized by a police officer as a result of a warrantless search of the trunk of appellant's automobile after it was stopped by the police officer for the purpose of checking the identification of appellant and his passenger. No arrest of appellant occurred until after the controlled substance was discovered and seized, and hence the search was not incident to a valid arrest. Our review of the record satisfies us that the officer did not have probable cause to conduct the search. The State's position that the search was lawful because it was pursuant to legally sufficient consent is not supported by clear and convincing evidence in the record. See, Sagonias v. State, 89 So.2d 252 (Fla. 1956); Samuels v. State, 318 So.2d 190 (Fla.App. 2d 1975).
It was error to deny appellant's motion to suppress. The judgment and sentence are severally vacated and this cause remanded with directions that the court permit appellant to withdraw his plea, grant his motion to suppress, and permit him to enter such plea to the charge as he may be advised.
Reversed and remanded.
WALDEN, C.J., and CROSS, J., concur.