        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            STATE OF FLORIDA,
                                Appellant,

                                      v.

                      CHRISTOPHER FREDERICKS,
                              Appellee.

                               No. 4D19-2407

                               [April 8, 2020]

   Appeal of nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Thomas J. Coleman, Judge; L.T. Case
No. 18-7153 CF10A.

   Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellant.

  Robert David Malove of The Law Office of Robert David Malove, P.A., for
appellee.

GERBER, J.

   This appeal, of a circuit court’s order granting a motion to suppress,
presents the novel issue of whether Arizona v. Gant, 556 U.S. 332 (2009),
which proscribed certain limits on law enforcement’s ability to search a
vehicle after the driver is arrested, still permits a narcotics K-9’s alert to
serve as probable cause for the warrantless search of the vehicle.

    More specifically, this case’s facts presents the following question: After
the police (1) lawfully investigate a driver who has voluntarily exited his
vehicle, (2) lawfully arrest the driver for a narcotics-related offense, (3)
lawfully move the arrested driver out of the vehicle’s reach, and (4) timely
deploy a narcotics K-9 which alerts to the vehicle to provide probable cause
to search the vehicle, are the police still permitted to conduct a warrantless
search of the vehicle in light of Gant?

   We conclude, under those facts, the answer is yes. Gant appears to
permit the warrantless search in this case because, regardless of the fact
the driver was out of the vehicle’s reach, the K-9 alert provided probable
cause to search the vehicle, that is, made it “reasonable to believe the
vehicle contain[ed] evidence of the offense of arrest.” Id. at 351. Moreover,
Gant is consistent with longstanding United States Supreme Court
precedent holding once probable cause exists that a vehicle contains
contraband, the police may conduct a warrantless search of the vehicle.
Thus, we reverse the circuit court’s order granting the motion to suppress.

   We present this opinion in three sections:

   1. The stop, search, and charges;
   2. The driver’s motion to suppress; and
   3. Our review.

                   1. The Stop, Search, and Charges

   The material facts of the stop, search, and charges are undisputed.

   A road patrol officer ran a license plate check on a car driving in a
neighborhood. While the officer waited for the computer to respond, the
car turned into a parking space. The computer revealed the registered
owner’s license was suspended. The officer pulled his vehicle directly
behind the car just as the driver was exiting the car. The officer saw the
driver matched the registered owner’s driver’s license photograph.

   The officer exited his vehicle and called for a narcotics K-9 handler to
respond. The officer would later testify this particular neighborhood was
inundated with methamphetamine, and the driver’s body language
indicated he may have been under the influence.

   The K-9 handler was down the street on another call and readily
available. Within four to five minutes, while the officer and driver
discussed the suspended license, the K-9 handler arrived. The K-9
handler deployed the K-9 around the driver. The K-9 alerted to a narcotics
odor coming from the driver. The officer searched the driver and found
two small bags each containing one gram of crystal methamphetamine.

  The officer handcuffed the driver and put him in the officer’s vehicle.
The driver did not consent to a search of his car.

   Nevertheless, the K-9 handler walked around the car with the K-9. The
K-9 alerted to a narcotics odor coming from the car’s driver’s side door.
The K-9 handler opened the door and deployed the K-9 inside. The K-9
alerted to the center console area. The K-9 handler saw a plastic chewing
gum container in the cupholder. He opened it and found fifteen grams of
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methamphetamine. He then opened the center console and found another
fifteen grams of methamphetamine, three grams of cannabis, and two
glass pipes, one with methamphetamine residue and the other with
marijuana residue. He next looked in the driver’s door pocket and found
a digital scale and plastic bags typically used for packaging drugs. He
lastly looked at the rear floorboard and found a tin with sixteen grams of
marijuana and a loaded handgun.

   After the officer read the driver his Miranda rights, the driver admitted
he knew of the illegal drugs in his car, and knew he was a convicted felon
who could not possess a firearm.

   The state charged the driver with five counts: (1) trafficking in
methamphetamine based on his possession of more than fourteen but less
than twenty-eight grams; (2) possession of a firearm and ammunition by a
convicted felon; (3) possession of cannabis less than twenty grams; (4)
possession of drug paraphernalia; and (5) driving while license suspended.

                  2. The Driver’s Motion to Suppress

    The driver filed a motion to suppress, arguing that once he was
handcuffed and away from his car, the officers were required to obtain a
warrant to search his car. According to the driver, the officers’ warrantless
vehicle search incident to his arrest violated his Fourth Amendment right
to be protected against unreasonable searches and seizures, requiring
suppression of the drugs, paraphernalia, and firearm found in his car. In
support, the driver relied on, among other cases, Arizona v. Gant, 556 U.S.
332 (2009), Harris v. State, 238 So. 3d 396 (Fla. 3d DCA 2018), and State
v. K.S., 28 So. 3d 985 (Fla. 2d DCA 2010) (discussed in the next section).

   The state responded that the cases upon which the driver relied were
distinguishable because none of those cases, unlike this case, involved a
deployed K-9. Instead, the state relied on pre-Gant and post-Gant cases
to argue that a K-9’s alert to a drug’s presence within an automobile
constitutes probable cause for a warrantless search under the Fourth
Amendment’s “automobile exception.”

    The circuit court granted the defendant’s motion to suppress. The
circuit court initially recognized that once the K-9 alerted to the car, the
officers had probable cause to search the car. However, the circuit court
ultimately concluded, under Gant, that the officers could not have
conducted a warrantless search of the car, unless the driver could have
reached into the car when the car was being searched, and it was
undisputed the driver here could not do so.
                                     3
                              3. Our Review

   This appeal followed. The state argues the K-9’s alert gave the officers
probable cause to conduct a warrantless search of the driver’s car under
the automobile exception. According to the state, cases like Gant
addressing a warrantless search of a vehicle, where the arrestee is out of
the vehicle’s reach, are irrelevant here, because none of those cases
involved a K-9 alert providing probable cause to conduct the warrantless
search of the vehicle. The driver, however, argues Gant controls in any
situation where the arrestee is out of the vehicle’s reach.

   “The standard of review for motions to suppress is that the appellate
court affords a presumption of correctness to a trial court’s findings of fact
but reviews de novo the mixed questions of law and fact . . . .” Pasha v.
State, 225 So. 3d 688, 703 (Fla. 2017).

   Employing our mixed standard of review, we conclude the circuit court
erred in granting the driver’s motion to suppress. Our reasoning lies
somewhere between the state’s and the driver’s respective arguments.

    That is, Gant applies here, but in the state’s favor, because regardless
of the fact the driver was out of the vehicle’s reach, the K-9 alert made it
“reasonable to believe the vehicle contain[ed] evidence of the offense of
arrest.” 556 U.S. at 351. Moreover, Gant is consistent with longstanding
United States Supreme Court precedent holding once probable cause
exists that a vehicle contains contraband, the police may conduct a
warrantless search of the vehicle. We address each basis in turn.

   a. Gant applies here, but in the state’s favor, because regardless
      of the fact the driver was out of the vehicle’s reach, the K-9
      alert made it reasonable to believe the vehicle contained
      evidence of the offense of arrest.

    In Gant, the police arrested the defendant for driving with a suspended
license. Id. at 336. The police handcuffed the defendant and secured him
in a patrol car. Id. The police then searched the defendant’s vehicle
incident to the arrest, and found a jacket with a bag of cocaine in the
pocket. Id.

   The defendant was charged with two drug offenses. Id. He moved to
suppress the evidence found in his vehicle. Id. He argued the warrantless
search of his vehicle violated the Fourth Amendment because he posed no
threat to the officers after he was handcuffed in the patrol car and because
                                      4
he was arrested for a traffic offense for which no evidence could be found
in his vehicle. Id.

   The trial court denied his motion, apparently based on New York v.
Belton, 453 U.S. 454 (1981), which was understood at the time to hold the
police may search a vehicle’s interior areas incident to an occupant’s
arrest. 556 U.S. at 337.

    The state supreme court reversed, concluding that although Belton
addressed a search incident to arrest, Belton did not address whether the
police may search a defendant’s vehicle as an incident to arrest once the
police have secured the defendant in a patrol car. Id. The state supreme
court instead relied on the earlier case of Chimel v. California, 395 U.S.
752 (1969), which requires a search incident to arrest be justified by either
officer safety or preserving evidence. 556 U.S. at 337. According to the
state supreme court, because neither of those interests existed once the
police secured the defendant in the patrol car, the search of his vehicle
was unreasonable. Id. at 337-38.

    The United States Supreme Court affirmed the state supreme court’s
decision. Id. at 351. The Court first concluded the police are authorized
to search a vehicle incident to arrest “only when the arrestee is unsecured
and within reaching distance of the passenger compartment at the time of
the search.” Id. at 343. The Court then also concluded:

      [C]ircumstances unique to the vehicle context justify a search
      incident to a lawful arrest when it is reasonable to believe
      evidence relevant to the crime of arrest might be found in the
      vehicle. In many cases, as when a recent occupant is arrested
      for a traffic violation, there will be no reasonable basis to
      believe the vehicle contains relevant evidence. But in others
      . . . the offense of arrest will supply a basis for searching the
      passenger compartment of an arrestee's vehicle and any
      containers therein.

Id. at 343-44 (emphasis added; internal citations and quotation marks
omitted). The Court later summarized its two conclusions as follows:

      Police 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. When these justifications are absent, a
      search of an arrestee’s vehicle will be unreasonable unless
                                     5
      police obtain a warrant or show that another exception to the
      warrant requirement applies.

Id. at 351 (emphasis added).

   Gant’s two conclusions apply here, but one of those conclusions leads
us to reverse the circuit court’s order granting the motion to suppress in
this case.

   As in Gant, the driver here was not within reaching distance of his
vehicle’s passenger compartment at the time of the search because he was
secured in a patrol car. Under that ground, the officers’ warrantless
search would appear to have been unreasonable

   However, unlike Gant, the officers here reasonably believed the driver’s
vehicle contained evidence of the offense of arrest, i.e., methamphetamine
and/or other illegal narcotics. The narcotics K-9 first alerted to the driver’s
shirt pocket which contained methamphetamine. Then the narcotics K-9
alerted to not only the driver’s side door, but also to the center console.
The K-9 handler found methamphetamine, marijuana, and drug
paraphernalia in those areas.

   Thus, because the driver here was arrested outside of his vehicle for a
narcotics offense, and because the K-9 alerted to more narcotics in the
driver’s vehicle, the officers reasonably believed more narcotics evidence
relevant to the crime of arrest might be found in the vehicle, per Gant. As
a result, the K-9 handler’s warrantless search of the vehicle did not violate
the Fourth Amendment.

   The other cases upon which the driver has relied are distinguishable
because, in those cases, like Gant, the police had no reason to believe the
driver’s vehicle contained evidence of the offense of arrest. See, e.g., Harris
v. State, 238 So. 3d 396 (Fla. 3d DCA 2018) (after the police arrested the
defendant for reckless driving on a dirt bike, removed his backpack,
handcuffed him, and had him sit on the grass five feet away, the police’s
search of the defendant’s backpack, leading to the discovery of illegal
drugs, did not fall under Gant’s warrantless search exceptions); State v.
K.S., 28 So. 3d 985 (Fla. 2d DCA 2010) (after the police ordered the
defendant away from his car, arrested him for fleeing and eluding,
handcuffed him, and found no weapons on him, the police’s search of the
car’s glove box, leading to the discovery of a firearm, did not fall under
Gant’s warrantless search exceptions, because the juvenile was not within
reaching distance of his car, and the police could not reasonably have
believed they would find evidence of fleeing and eluding in the glove box).
                                      6
   b. Gant is consistent with longstanding United States Supreme
      Court precedent holding once probable cause exists that a
      vehicle contains contraband, the police may conduct a
      warrantless search of the vehicle.

   The state has relied on post-Gant and pre-Gant cases for the
proposition that once a K-9 alerts to a drug’s presence within an
automobile, the alert constitutes probable cause for a warrantless search
under the Fourth Amendment, thus making the defendant’s reliance on
Gant “misplaced,” according to the state. See, e.g., Campbell v. State, 139
So. 3d 490, 497-98 (Fla. 2d DCA 2014) (counsel’s failure to file motion to
suppress search results of defendant’s vehicle was not deficient
performance where K-9 alerted on defendant's vehicle, which provided
police officers with probable cause to search); Bennett v. State, 111 So. 3d
983, 986 (Fla. 1st DCA 2013) (K-9’s “sniff was up to snuff,” and thus trial
court did not err in denying motion to suppress based on its determination
that police had probable cause to search a vehicle’s trunk); State v. Hill,
770 So. 2d 280, 282 (Fla. 5th DCA 2000) (“[T]he canine alert gave probable
cause to search the automobile irrespective of its ownership or the
proximity of the owner.”); State v. Robinson, 756 So. 2d 249, 250-51 (Fla.
5th DCA 2000) (once the defendant was legally stopped, the use of a drug-
sniffing K-9 was not an unconstitutional search, because a properly
trained K-9’s alert provides probable cause for a search, and the officer’s
detention of the driver did not last any longer than reasonably necessary
for the officer to write the citation and make the customary license, tag,
insurance and registration checks).

   However, the state’s reliance on the foregoing K-9 cases lacks any
reconciliation with Gant’s initial conclusion 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.”
556 U.S. at 351 (emphasis added). To merely rely on the foregoing K-9
cases, and then simply say the defendant’s reliance on Gant is “misplaced”
in cases like the instant case, where the driver was not within reaching
distance of his vehicle at the time of the search, is too narrow and too
convenient of a solution.

   Instead, we reconcile Gant with this line of cases. That is, we conclude
Gant is consistent not only with the cases holding that a K-9’s alert
constitutes probable cause for a warrantless search, but also is consistent
with the United States Supreme Court’s longstanding “automobile
exception” to the Fourth Amendment’s warrant requirement.

                                     7
    For nearly a century, the United States Supreme Court has held once
probable cause exists that a vehicle contains contraband, the police may
conduct a warrantless search of the vehicle, under what has become
known as the “automobile exception” to the Fourth Amendment’s warrant
requirement. See, e.g., Carroll v. United States, 267 U.S. 132, 153 (1925)
(after law enforcement officers had probable cause to believe a car they
observed on the road contained illegal liquor, their warrantless stop and
search of the car was proper because a “necessary difference” exists
between searching “a store, dwelling house or other structure” and
searching “a ship, motor boat, wagon, or automobile,” because a “vehicle
can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought”); United States v. Ross, 456 U.S. 798, 823-24
(1982) (police who had lawfully stopped a vehicle, and had probable cause
to believe contraband was concealed within it, could conduct a warrantless
search of the vehicle, because the scope of a warrantless search of a vehicle
is not defined by the nature of container in which the contraband is
secreted, but rather by the object of the search and the places in which
probable cause suggests the object may be found); California v. Carney,
471 U.S. 386, 394 (1985) (after DEA agents had probable cause to believe
the defendant was distributing a controlled substance from a motor home,
notwithstanding its possible use as a dwelling place, their warrantless
search of the motor home was not unreasonable); Pennsylvania v. Labron,
518 U.S. 938, 940 (1996) (“If a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth Amendment . . .
permits police to search the vehicle without more”; where the police had
seen one defendant put drugs in the trunk of the car and had seen another
defendant act in ways suggesting he had drugs in his truck, the police’s
warrantless searches of the vehicles did not violate the Fourth
Amendment).

    Thus, Gant’s conclusion that a search is justified “when it is reasonable
to believe evidence relevant to the crime of arrest might be found in the
vehicle,” 556 U.S. at 343 (citation omitted), is entirely consistent with the
reliance on probable cause to justify the warrantless search of a vehicle,
whether that probable cause arises from a K-9’s alert to a vehicle or from
any other source. In fact, the Court in Gant supported its conclusion by
citing the automobile exception’s reliance on the probable cause standard.
See Gant, 556 U.S. at 346-47 (“Other established exceptions to the warrant
requirement authorize a vehicle search . . . when . . . evidentiary concerns
demand. For instance . . . [i]f there is probable cause to believe a vehicle
contains evidence of criminal activity, [Ross] authorizes a search of any
area of the vehicle in which the evidence might be found.”) (citing Ross,
456 U.S. at 820–21).

                                     8
                                 Conclusion

   Gant appears to permit the warrantless search in this case because,
regardless of the fact the driver was out of the vehicle’s reach, the K-9 alert
provided probable cause to search the vehicle, that is, made it “reasonable
to believe the vehicle contain[ed] evidence of the offense of arrest.” Id. at
351. Moreover, Gant’s foregoing holding is consistent with longstanding
United States Supreme Court precedent holding once probable cause
exists that a vehicle contains contraband, the police may conduct a
warrantless search of the vehicle.

   Based on the foregoing, we reverse the circuit court’s order granting the
defendant’s motion to suppress. We remand to the circuit court to enter
an order denying the defendant’s motion to suppress, and for further
proceedings.

   Reversed and remanded for further proceedings.

GROSS and DAMOORGIAN, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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