We affirm the appellant's conviction of trafficking in cocaine and possession of marijuana. The issue on appeal is whether the law enforcement officers who searched the defendant's luggage at the scene of his arrest were required to secure a warrant before conducting the search. At the time of arrest Stone was effectively in custody, and the luggage was out of his physical possession.

The evidence is undisputed that two Broward County deputies approached the defendant, who was seated on a Greyhound bus, and engaged him in conversation. They stated their purpose in seeking his cooperation and consent to a search of his luggage. The defendant did not consent to the luggage search, but did agree to permit a dog to sniff the bags. In the course of the conversation, and while still seated, the defendant told the deputies that he had marijuana in one of his two bags stored in the overhead rack immediately above his head.

Following the defendant's incriminating admission, the deputies asked the defendant to leave the bus with them. The deputies removed the defendant's suitcases and placed them next to the bus. There, a specially trained dog "alerted" on both of the bags while the defendant stood a few feet away. The "alert" indicated the presence of either heroin, cocaine, hashish or marijuana. The defendant was then formally placed under arrest, after which his bags were immediately searched. Two kilos of cocaine were found in one bag, and a small amount of marijuana in the other.

In a supplemental brief, the defendant contends that the evidence should also be suppressed on the ground that his admission arose out of an illegal stop and detention, in that he had been approached at random while a passenger on the bus. We note that this court has recently decided this issue, on related facts, adversely to the defendant. See State v. Avery, 531 So.2d 182 (Fla. 4th DCA 1988). In any event, we do not address this point because the issue was not argued at trial. We also note that no question concerning the conduct of the dog sniff itself has been raised in this appeal.

The appellant contends that a warrant was required before the luggage could be searched, relying on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). See also Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Chadwick, the Supreme Court held that a search warrant was required in order to search a locked footlocker that had been taken into custody by government agents at the scene of the defendant's arrest. The footlocker was opened and searched, without consent or warrant, at a federal building one and a half hours after the arrest.

We consider the appeal en banc, sua sponte, because we consider it to be of exceptional importance.

In this appeal, the defendant does not dispute that he was lawfully under arrest at the time of the search. One of the recognized exceptions to the Fourth Amendment warrant requirement is a search that is conducted incident to a lawful arrest. See, e.g., New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Savoie v. State, 422 So.2d 308 (Fla. 1982). See also United States v. Andersson, 813 F.2d 1450 (9th Cir. 1987); United States v. French, 545 F.2d 1021 (5th Cir. 1977).

In Chadwick, the Supreme Court rejected the arguments of the government that the warrant requirement of the Fourth Amendment be substantially restricted with respect to movable personal property. The court recognized the variety of settings in which warrantless searches are held unreasonable and therefore unconstitutional, and those, including searches incident to arrest, in which warrants are not required. 433 U.S. at 9-15, 97 S.Ct. at 2482-86. The Supreme Court concluded:

However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest," Preston v. United States, 376 U.S. 364, at 367, 84 S.Ct. [881], at 883 [11 L.Ed.2d 777 (1964)], or no exigency exists. 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.

Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency.

Id. at 15, 97 S.Ct. at 2485-86. (footnote omitted).

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court upheld the warrantless search of a jacket seized from within the defendant's automobile as incident to his arrest, notwithstanding that the defendant was securely in custody at the time of the search. The court held that the search incident to arrest exception applied to the search of any container found within the interior of an automobile that had been occupied by a defendant immediately prior to the arrest. 453 U.S. at 460, 101 S.Ct. at 2864.

The scope and authority of New York v. Belton is not limited to the search of the contents of automobiles. In Savoie v. State, 422 So.2d 308 (Fla. 1982), the Florida Supreme Court applied the holding in Belton to resolve the legality of a search that did not involve a vehicle. In Savoie, an undercover officer in a hotel room had seen the defendant place evidence into a locked briefcase. After the defendant was arrested, the arresting officer took physical possession and control of the briefcase. The defendant argued that the search of the briefcase could not be considered incidental to his arrest, as the briefcase was beyond his effective control at the time, and there was therefore no reason to be concerned about a physical threat to the officers or the destruction of evidence. However, our supreme court recognized that this viewpoint had been effectively rejected by New York v. Belton, and that although the briefcase was no longer available to the defendant as a result of having been seized, a warrant was nevertheless not required in order to conduct a lawful search.

Here, the appellant argues that under Chadwick, a warrant was necessary for the lawful search of his luggage, as distinguished from other types of containers such as a purse or briefcase, and that the location of the luggage demonstrated that it was not within the area of his control. Appellant also contends that the search incident to arrest exception should not be applied, regardless of the proximity of the container to the defendant, if the officers intend to continue their investigation into the contents of the container. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. Mancini, 802 F.2d 1326 (11th Cir. 1986). However, we do not find these arguments persuasive, as we consider the arrest itself a sufficient reasonable intrusion not requiring further justification for the search of personal property, including containers, which are within the defendant's control immediately prior to the arrest. See New York v. Belton; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Savoie v. State.

There is little to distinguish between this case and Savoie that would justify our reaching a contrary result. In both situations, the search was incident to an arrest, the container had just been removed from the defendant's possession by the police and was safely out of the defendant's control, the container was one in which private effects are customarily found, and in each case the container was opened at the scene of the arrest.

In New York v. Belton, the majority recognized that it is often difficult to apply the principles of the arrest exception enunciated in Chimel v. California. The court reasoned that it is the arrest that justifies the search as a reasonable intrusion. The Supreme Court recognized the need for a fixed standard to guide police officers in understanding when such a search would not violate the warrant requirement of the Fourth Amendment. In Belton the Supreme Court noted that the New York Court of Appeals in that case had erroneously relied upon United States v. Chadwick and Arkansas v. Sanders in determining that the search of Belton's jacket was constitutionally invalid. The Supreme Court distinguished those earlier cases, saying:

But neither of those cases involved an arguably valid search incident to a lawful custodial arrest. As the Court pointed out in the Chadwick case: "Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incident to the arrest or as justified by any other exigency." 433 U.S., at 15, 97 S.Ct., at 2485. And in the Sanders case, the Court explicitly stated that it did not "consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e.g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The State has not argued that respondent's suitcase was searched incident to his arrest, and it appears that the bag was not within his `immediate control' at the time of the search." 442 U.S., at 764, n. 11, 99 S.Ct., at 2593, n. 11. (The suitcase in question was in the trunk of a taxicab. See n. 4, supra.)

New York v. Belton, 453 U.S. at 461-62, 101 S.Ct. at 2865. The court then went on to hold:

The jacket was thus within the area which we have concluded was "within the arrestee's immediate control" within the meaning of the Chimel case. The search of the jacket, therefore, was a search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments.

Id. at 462-63, 101 S.Ct. at 2865 (footnote omitted).

Certainly it offers no guidance to an arresting officer to have a different rule depending upon whether the bag in question is a briefcase, a satchel, a carry-on or tote bag, or larger luggage. Nor should an officer's authority to search depend on the fortuitous circumstances of how the probable cause to arrest arose. It should not matter whether the bags were immediately above the defendant's head rather than under the seat ahead of him, or whether the briefcase in Savoie's possession was carried in his hand or was being carried by a porter in a cart alongside him, as long as they were within the area recognized in Chimel. Nor is there anything in either Savoie or Belton to indicate that the motive of the officer should determine whether a search passes muster. Rather, 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. Officers, in the tension and exigency at the scene of making an arrest, cannot be reasonably expected to make a complex detached analysis before deciding whether the search of a container, located sufficiently near the defendant to satisfy the Chimel standards, requires a warrant. This conclusion is not inconsistent with the application of the general rule, recognized in Chadwick, that a warrant is always required where an exception to the warrant requirement is no longer applicable.

Chadwick does not require the suppression of evidence found incident to a search conducted at the scene of an arrest. The Chadwick opinion emphasized that the search in that case occurred long after the luggage had been removed from the scene. We note that in his dissenting opinion, Justice Blackmun was clearly satisfied that the search of the footlocker would not have been held unconstitutional by the Court had the agents simply conducted the search at the scene. Chadwick, 433 U.S. at 22-23, 97 S.Ct. at 2489-90.

In New York v. Belton, the Court said:

Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments "can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement." LaFave, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 S.Ct.Rev. 127, 142. This is because

"Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field.'" Id., at 141.

453 U.S. at 458, 101 S.Ct. at 2863.

We also note that State v. Wells, 539 So.2d 464 (Fla. 1989), which Judge Anstead considers persuasive, did not involve a search incident to arrest, nor was the search in Wells conducted at the scene of arrest. The statements quoted from Wells, by the dissenting opinion, do not purport to restrict the ability of an officer to conduct a search incident to arrest that is not remote in time or place.

We therefore conclude that the trial court did not err in denying the defendant's motion to suppress. The judgment and sentence are affirmed.

HERSEY, C.J., and DOWNEY, LETTS, DELL, WALDEN, GUNTHER, WARNER, POLEN and GARRETT, JJ., concur.

ANSTEAD, J., dissents with opinion.

GLICKSTEIN, J., concurs in part with ANSTEAD, J., dissent, and dissents with opinion.

ANSTEAD, Judge, dissenting.

I dissent from the decision to en banc what appears to be a typical search and seizure case. There is no discussion of why this case is of "exceptional importance" as stated in the majority opinion, and I see no reason why this case, one of hundreds we decide annually by three judge panel decision, should be treated differently. It appears that we have embarked upon an en banc road that encourages the full court to take over a case in any instance in which non-panel judges may disagree with a panel decision. I do not believe the en banc rule was meant to permit such full court review of every appeal. Aside from the work load consequences, which could be staggering, this kind of full court review undermines the integrity of the three judge panel system, a system of review mandated by the Florida Constitution for the district courts of appeal.

I also disagree with the majority's holding on the merits. This is a close case, as is evidenced by the well written opinions of my colleagues. Chadwick would appear to require a reversal. The viability of Chadwick has been in some doubt, however, and, if it were not for a recent Florida Supreme Court decision reaffirming the validity of Chadwick, I would probably concur in the majority's holding on the merits. In State v. Wells, 539 So.2d 464 (Fla. 1989), a case involving the warrantless search of a suitcase, the Florida Supreme Court stated:

Ross itself reached this conclusion when it explicitly distinguished United States v. Chadwick, 433 U.S. 1 [97 S.Ct. 2476, 53 L.Ed.2d 538] (1977), and Arkansas v. Sanders, 442 U.S. 753 [99 S.Ct. 2586, 61 L.Ed.2d 235] (1979). See United States v. Ross, 456 U.S. 798, 811-15 [102 S.Ct. 2157, 2565-68, 72 L.Ed.2d 572] (1982). Chadwick had drawn a clear distinction between automobiles, which have a "diminished expectation of privacy," 433 U.S. at 12 [97 S.Ct. at 2484], and luggage, which has "expectation of privacy . . . substantially greater than in an automobile." Id. at 13 [97 S.Ct. at 2484]. Sanders had suggested that a warrant was required to open a suitcase where "it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband." 442 U.S. [at] 767 [99 S.Ct. at 2595] (Burger, C.J., concurring in the judgment). Ross reaffirmed this holding, although it rejected some of Sanders' analysis. 456 U.S. at 824 [102 S.Ct. at 2172-73]. If this conclusion applies when the police actually have probable cause to search luggage, it certainly applies when they do not.

As stated in Chadwick:

Once the federal agents had seized it . . . there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained . . . With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.

433 U.S. at 13 [97 S.Ct. at 2484-85]. Moreover, Chadwick expressly noted that the search of the footlocker was a far greater intrusion into interests protected by the fourth amendment than was the mere seizure of the footlocker. Id. at 14 n. 8 [97 S.Ct. at 2485 n. 8].

539 So.2d at 467 n. 2.

The majority opinion notes from the outset that at the time of the search of his luggage, Stone was in custody, and the luggage was out of his possession. Chadwick clearly requires a warrant under those circumstances. The majority's suggestion that Chadwick stands for the proposition that the police could search at the scene, but couldn't search an hour later at the police station, would render the Chadwick holding ludicrous. If you have a right to search a person's wallet at the scene, you don't lose that right because you wait to search it until you get the suspect to the station. The Chadwick analysis and holding has been subject to criticism, much of which I find valid. In my view, a sounder rule would permit the search of any items in the possession of a suspect at the time of his lawful arrest. However, that is not the law, and I am bound by oath to follow the law as announced by the United States Supreme Court in Chadwick and the Florida Supreme Court in Wells.

GLICKSTEIN, Judge, dissenting.

This is an appeal from a conviction for trafficking in cocaine and possession of marijuana. I would reverse and remand, with direction to discharge the defendant, because of the illegality of the search upon which his conviction was based. I concur in Judge Anstead's opinion insofar as it discusses the merits, but have no objection to consideration of this case en banc.

Deputies Vickie Cutcliffe and Joseph Damiano testified at a hearing on appellant's motion to suppress physical evidence that they approached appellant while he was seated on a northbound Greyhound bus and asked if they could speak with him a few moments. He agreed. Damiano explained they were narcotics officers charged with trying to stop drug smuggling. They asked for his cooperation by allowing them to search his two bags, which were in the rack overhead and which he had previously pointed out as his. Ms. Cutcliffe testified Damiano indicated to appellant he had a right to refuse, and Stone did refuse.

The deputies were wearing jeans and pullover shirts, with green jackets that said Broward County Sheriff's Office on the back and a patch with the same legend on the front. Both had weapons, but they were concealed.

Officer Cutcliffe said Stone could have left the bus if he wanted to, and was not blocked by either of the officers.

After Stone refused consent to a search of his luggage, Damiano asked him if he would allow a drug dog to check his bags. Stone said yes, but he wanted to tell them there was some marijuana in a coat pocket in one of the bags, but he couldn't remember which bag, and the dog would find it.

Because Stone had admitted he was in possession of an illegal drug, he was no longer, in Officer Cutcliffe's mind, free to leave. The officers asked him to come off the bus with them. Officer Cutcliffe believed she took possession of his two bags, and the two officers walked him off the bus.

Outside the bus, Deputy Bresinski was already present with the drug dog. This was part of the deputies' daily routine. Bresinski lined up Stone's bags with a few others and ran the dog over the bags. Stone was standing on the sidewalk three or four feet from the bags. The dog scratched, bit and pushed with his nose around both of Stone's bags. According to Deputy Cutcliffe, Stone was then handcuffed, and Deputy Cutcliffe at that point also relieved Stone of a small amount of marijuana he had previously told her he had in a pocket, Deputy Cutcliffe opened one of Stone's bags herself and found a few little ziplock bags of marijuana, five seeds and some marijuana residue. Detective Damiano opened the slightly larger bag and found two kilo packages of cocaine. This search was done at the bus station, but the packages were not opened there.

Deputy Cutcliffe said the bags were searched in order to look for weapons and to preserve evidence, to make sure nothing got destroyed. On cross-examination she said the bags were already in her control once Stone said there were drugs in one of them, and she would not allow Stone to have access to them.

Deputy Damiano's testimony was very similar to Deputy Cutcliffe's, but he said Stone was not physically handcuffed at the time his luggage was searched. He recalled that Stone was two to three feet from the bags. Deputy Bresinski did not recall how close Stone was to the bags, but seemed to think it unlikely he was that close, because Bresinski needs room when working the dog. However, Bresinski was concentrating on the dog, not other matters.

Stone was charged by information with trafficking by possession of more than 400 grams of cocaine and possession of less than 20 grams of marijuana. After a hearing, much of the testimony at which was summarized above, and submission of a legal memorandum, the court denied appellant's suppression motion.

Stone was tried to a jury. The arresting deputies' testimony on the search was much the same as at the suppression hearing. They also testified Stone told them on his arrest he thought he was transporting marijuana to Philadelphia, for which service he had been paid $1,000. His latent fingerprints were found on the tape and newspaper in which the cocaine was wrapped. Other, unidentified latent prints were found on the opaque inner wrappings. The substance was chemically identified as cocaine. Each package contained a little less than a kilo. The two little quantities of marijuana totaled four grams.

Stone was found guilty as charged and sentenced to fifteen years on the cocaine count — a mandatory minimum — and to time served on the marijuana count.

The state justified the physical search of appellant's luggage as a search incident to a lawful arrest. Appellant argues from United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), that "[o]nce 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." Id. at 15, 97 S.Ct. at 2485, 53 L.Ed.2d at 551. The Court added in a footnote there can be other justifications for warrantless search of luggage taken from a suspect at the time of his arrest, as, for example, if the officers have reason to believe the luggage contains a dangerous instrumentality such as explosives. In such case it would be foolhardy to take the luggage to the station house without opening it and disarming the weapon. Id. at n. 9. The Chadwick Court stated that when no exigency is shown to support the need for an immediate search, the Fourth Amendment protects the privacy interests of the suspects, pending evaluation by a neutral magistrate, albeit his issuance of a warrant is reasonably predictable. See id. at 15-16, 97 S.Ct. at 2486, 53 L.Ed.2d at 550-51.

The other side of the coin, so to speak, from Chadwick is found in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Under Chimel it is permissible to make an on-the-spot search of the area within the immediate control of an arrested person; and this includes packages or luggage carried by an arrested person, see Draper v. United States, 358 U.S. 307, 310-11, 79 S.Ct. 329, 331, 3 L.Ed.2d 327 (1959). There are court of appeals cases predating Chadwick which approved such searches even if the arrested person had been handcuffed and was no longer able to gain access to the items being searched. E.g., United States v. Eatherton, 519 F.2d 603, 609-10 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); United States v. Kaye, 492 F.2d 744 (6th Cir. 1974). Other pre- Chadwick cases used the Chimel reasoning as the basis for approving search of an arrested person's suitcase or brief case that was merely close by and not touching the arrested person. E.g., United States v. French, 545 F.2d 1021 (5th Cir. 1977). I believe Chadwick changed the law in this respect, as Justice Blackmun's dissent from Chadwick tends to bear out. Chadwick, 433 U.S. at 23 n. 5, 97 S.Ct. at 2490 n. 5, 53 L.Ed.2d at 556 n. 5. Chimel should not be read to supply a talisman for search incident to arrest.

Two somewhat more recent court of appeals cases shed light on how Chadwick applies. In United States v. Hill, 730 F.2d 1163 (8th Cir.), cert. denied sub nom., Frazier v. United States, 469 U.S. 884, 105 S.Ct. 255, 83 L.Ed.2d 192 (1984), Hill was unlawfully arrested in his home. Allegedly, after being escorted out of the house, he asked to return to his bedroom, and agreed to have an officer there with him. The officer testified at the suppression hearing that he asked Hill whether the suitcase in the bedroom was his, and Hill said it was. The officer opened it without asking Hill's permission, purportedly out of concern for his own safety. Hill was about five feet away at the time. The federal district court found that the officer apparently assumed Hill wanted to take either the suitcase or some of its contents with him to jail, and the search was justified under Chimel because incident to Hill's arrest, and its purpose could have been to prevent Hill from acquiring a weapon or destroying evidence within his immediate control. The appellate court, while accepting the district court's assessment of Hill's proximity to the suitcase, found the officer's search of the suitcase unreasonable under Chadwick. The appellate court feared Hill had been deliberately put near the suitcase so that the police would have a reason to search it; but even if this was untrue, the appellate court held the search of the suitcase was not conducted in an area within Hill's immediate control and incident to his arrest. The court pointed out that even under Chimel there is no justification incident to arrest for routinely searching through closed or concealed areas of the room in which the arrest takes place. Id. at 1167-68, citing 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694.

The second case is United States v. Andersson, 813 F.2d 1450 (9th Cir. 1987). There a warrantless search of a hotel room in connection with a major drug transaction of which the agents were reliably informed and some of the parties to which had just been apprehended was found to be justified by exigent circumstances. When the agents entered the room they found one of the suspects standing next to a bed on which were two suitcases. One of the suitcases was open and contained cocaine. After arresting the suspect, the agents opened the other suitcase and found more cocaine. The defendants argued the search of the second suitcase was illegal. The appellate court held that the agents had probable cause to arrest the man and the search of the second suitcase was properly incident to the arrest, as it took place contemporaneously with the arrest, and the arrestee, who was close to the suitcase, might be able to reach into it to retrieve a weapon or destroy evidence. The appellate court did not accept the appellants' argument that the suitcase search did not occur until considerably after the man's arrest, and therefore, under Chadwick, a warrant was required, because there was no evidence of the lack of contemporaneity on the record. 813 F.2d at 1456.

Here the luggage was clearly not in contact with appellant at the time of the physical search thereof. Appellant was under arrest. Depending on which officer's recollection one finds more credible, appellant may or may not have been handcuffed at the time. One officer put him three or four feet from the luggage; the other, two or three feet. It is debatable whether the search of the luggage was, in terms of Chadwick, removed in time or place from the arrest; but for certain there were not exigent circumstances. There was no reason to believe that a bomb or something of that sort was in the luggage; and is it at all reasonable to suppose that Stone could grab the luggage and run, or get it open and pull a gun out of it, or destroy the contraband, with three officers in the immediate vicinity, two of them no doubt keeping a close eye on Stone? Unless Chimel and Chadwick are read mindlessly, the mere proximity of Stone to the luggage at the time of the physical search of the two suitcases does not justify the warrantless search. As I understand Chadwick, once luggage is reduced to the exclusive control of the law enforcement officers, search ceases to be an incident of arrest unless there is a genuine danger the arrestee may regain access. It seems sophistical in this case to pretend such a danger existed.

The state and the majority support the physical search of the luggage by analogy to Savoie v. State, 422 So.2d 308 (Fla. 1982). Savoie negotiated with a police officer, offering a bribe in exchange for dropping of criminal charges against an associate of Savoie. The officer prepared simulated evidence against that suspect and arranged to meet Savoie in a certain motel room. In an adjacent room were several law enforcement officers. The officer gave Savoie the "evidence" in exchange for $5,000 in cash. Savoie placed the evidence in an attache case, which he locked, and left the room with the case. Down the hall, one of the other officers arrested Savoie, who was carrying the locked case. The officer searched Savoie, handcuffed him and took control of the attache case. During the search of Savoie the officer found the key to the attache case. He immediately opened the case at the scene of the arrest.

The Florida Supreme Court approved the trial court's refusal to suppress the contents of the attache case. The motion was not made until much testimony of the arresting officer had been heard at trial. The trial court cited Chadwick as its authority, holding that the search of the attache case was reasonable because incident to a valid arrest. The district court affirmed on the ground the right to move suppression had been waived because not offered before trial, and thus appeal of any error had not been preserved. The Supreme Court held the motion could be heard at the court's discretion at trial, as it was, and the appeal had been preserved. It upheld the denial of suppression on the basis of Chadwick and also New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (when officer has made lawful custodial arrest of automobile occupant he may as contemporaneous incident of the arrest search the passenger compartment of the car and examine the contents of any containers found there).

I have reservations about the pertinence of Belton, where the automobile exception is clearly operative. See the recent Florida Supreme Court opinion in State v. Wells, 539 So.2d 464, 467 n. 2 (Fla. 1989) (discussing the distinction drawn between automobile search, and luggage search pursuant to Chadwick, in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). Nevertheless, the search of Savoie's attache case was proper pursuant to Chadwick, because Savoie had the case on his person when he was arrested, and the officer unlocked and searched it immediately. Under Chadwick, as the Savoie Court pointed out, it is not required that there be probable cause to believe there is a weapon in the container or the arrestee is about to destroy the evidence, if otherwise the search is incident to the arrest.

Savoie is distinguished from the instant case by the fact that Savoie was carrying the case at the time he was stopped and arrested, and the contents of the case were examined at once. The Savoie Court clearly hitched its holding to the fact Savoie was carrying the case. Here, on the other hand, one or another of the officers had taken the suitcases from the overhead rack and carried them out of the bus; the sniff lineup had occurred, and the arrestee had been placed in custody and by some of the testimony was in handcuffs. Those are not the circumstances of the legal search of a container incident to an arrest, as I understand Chadwick. I find no justification for legitimizing a warrantless search beyond the limits of Savoie.

The facts of the instant case are more nearly like those in Nease v. State, 484 So.2d 67 (Fla. 4th DCA 1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987). There a man who was under articulable suspicion of carrying drugs had been stopped for questioning pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). After giving the officers permission to search his luggage, the man fled. Although methaqualone found on his person after he was chased and caught was held to have been obtained in a legal search following arrest — his flight having transformed articulable suspicion into probable cause — the cocaine found in his luggage was suppressed as the product of an illegal search. This court determined that the man's flight constituted withdrawal of his consent to search his luggage; and, pursuant to Chadwick, the contents of his closed luggage were protected by the Fourth Amendment. 484 So.2d at 70.

The state also urged in the instant case that the search of Stone's luggage is sustainable as an inventory search. It is true that when a person allows the police to take his personal effects into custody and inventory them, the arrestee has allowed his privacy interest to dissipate, Lightbourne v. State, 438 So.2d 380, 387 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); but that has to do with belongings on the arrestee's person. Luggage is included under the inventory search doctrine when found in a car that has been legally impounded, but inventory search as a pretext for looking for incriminating evidence is reprehensible, Fields v. State, 369 So.2d 603, 605 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla. 1979), cited in Delatte v. State, 384 So.2d 245, 247 (Fla. 1st DCA 1980). In Delatte the appellant was taken into lawful custody when in possession of his bag. The bag accompanied him to jail because there was nothing else to be done with it. Because of the danger of storing it at the police station without knowing what was in it, it was held that an inventory search of its contents was not in violation of Delatte's Fourth Amendment rights.

Appellee argued that once Stone was properly booked an inventory search of the bags could legally have been made and there would have been the same result — discovery of the contraband. One could as well argue that there was no violation of a Fourth Amendment protection because once a warrant had been obtained a search of the luggage could have been made and the contraband would have been discovered. Both lines of reasoning are flawed.

The reason for the limitations on search imposed by Chadwick is not that but for the improper invasion of the arrestee's Fourth Amendment rights the evidence would not have been discovered; the reason is to promote regard by law enforcement authorities for the constitutional protections against unreasonable search and seizure. Thus in Chadwick it was obvious that a warrant could readily have been obtained; yet, because it was not obtained, the contents of the foot locker could not be used as evidence. Here, the fact that a subsequent inventory search would have turned up the same contraband cannot justify a search that was actually conducted for the purpose of finding the actual drugs admitted to be there by the arrestee and the drugs sniffed out by the drug dog. It was not an inventory search.

If the inevitable discovery exception could be applied in the instant case as it was in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), cert. denied, 471 U.S. 1138, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985), and in State v. McLaughlin, 454 So.2d 617 (Fla. 5th DCA 1984), the exception would effectively swallow up the exclusionary rule. Anytime property in a closed container, belonging to an arrestee, came into the hands of law enforcement authorities, they could evade obtaining a search warrant, and open the container, simply by saying they would have found out what was inside anyhow when an inventory search was done. The constitutional fathers cannot have intended such a result, nor, in my opinion, is that what the Williams court intended.

The instant case is distinguished in a critical way from Williams. In Williams a totally independent search was going on simultaneously, conducted by numerous volunteers, at the time the police obtained information on the body's whereabouts in violation of Williams' constitutional right to advice of counsel. The instant case differs from McLaughlin in that there no arrest was involved, the owner was not definitely known, and McLaughlin was entitled to no privacy expectation considering the box was found in a lot to which the whole world had access.

LaFave urges that application of the inevitable discovery exception requires the courts to use a surgeon's scalpel rather than a meat axe. See 4 W.R. LaFave, Search and Seizure § 11.4(a) (1987). Mechanical application of the inevitable discovery doctrine will encourage unconstitutional short cuts. It should not be applied where the police have acted in bad faith to speed up discovery of the evidence, or it will erase the Fourth Amendment search warrant requirement.

Finally, attention is called to Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). While that case may seem on the surface to support the state, I find the opinion to be helpful to appellant, in that the Court there distinguishes inventory search of an arrestee's personal effects found in an automobile, which was the case in Bertine, from search of closed luggage for investigative purposes, as in Chadwick, supporting the conclusion that Chadwick remains good law.

Stone v. State

Summary

Opinion

EN BANC

Stone v. State

Stone v. State

Case Details

Citations

Citing Cases

Stone v. State

Summary

Opinion

EN BANC

Stone v. State

Stone v. State

Case Details

CitationsCopy Citation

Citing Cases

Citations