        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                             EDDIE TYLER,
                               Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D14-449

                          [February 10, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;     Karen     Miller,    Judge;     L.T.    Case     No.
502013CF009808AXXXMB.

  Carey Haughwout, Public Defender, and Zainabu Rumala, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

   After his motion to suppress was denied, the appellant pled guilty to
the charge of being a delinquent in possession of ammunition. He
reserved his right to appeal the suppression ruling, which is dispositive.
We agree with the appellant that the state did not meet its burden in
establishing an exception to the warrant requirement for searches, and
we reverse.

    The evidence at the suppression hearing revealed the following. An
officer with the Riviera Beach Police Department encountered the
appellant, who was the passenger in a vehicle, during a traffic stop.
Upon discovering the driver’s license of the driver was suspended, the
officer placed the driver under arrest. During a search of the driver
incident to arrest, the officer came upon an unspecified amount of
marijuana in the driver’s pocket.

   The vehicle did not belong to either the driver or the appellant, and
the officer was unable to contact the owner. The officer arranged to have
the vehicle towed. Meanwhile, the officer conducted an inventory of the
vehicle. In the trunk of the vehicle, the officer found a suitcase with the
appellant’s name written on it. The suitcase contained identification
cards for the appellant. The officer observed an open pocket on the front
of the suitcase; the pocket contained a black sock tied in a knot with
“little bumps inside it.” The officer opened the sock and discovered
seventeen “live ammunitions” nestled within. After the officer arrested
the appellant, the appellant admitted that the contents of the suitcase
belonged to him.

   The officer testified that, while conducting the inventory search, he
made a log, pursuant to the department’s impoundment policy. He had
been trained in conducting inventory searches of vehicles. During that
training, he learned that “if we go to tow the vehicle all the contents
inside the vehicle [have] to be documented as for liability reasons.”

   The state introduced the department’s impoundment policy, which
provided that an arrest of an individual who is driving a vehicle “will
result in the vehicle being towed to an approved storage facility by the
authorized towing firm,” and that “[a]n inventory search will be
conducted and a log will be produced of all vehicles authorized to be
towed by the Police Department.”         The state also introduced the
department’s policy on search and seizure, which appears to be a
summation of case law on search and seizure, some of which was
outdated. Neither policy spelled out the department’s policy for inventory
searches upon impoundment of a vehicle. The officer testified that
pursuant to the search and seizure policy, an “officer may as incident to
an arrest search the entire passenger compartment of the vehicle and
any contents . . . found therein whether opened or closed without the
requirements of probable cause.” Thus, he has always searched all
containers in a vehicle while conducting an inventory as that was the
procedure he was taught.

   As a preliminary matter, we address standing, an issue not raised by
the parties below or on appeal. Although the appellant did not own the
vehicle, the evidence established his possessory interest in the suitcase
and its contents. Thus, he established his standing to contest the search
of those items. See State v. Hernandez, 718 So. 2d 833, 836 (Fla. 3d
DCA 1998).

   We turn now to the merits.       “A warrantless search is per se
unreasonable under the Fourth Amendment subject to a few well-defined
exceptions. The state has the burden to prove that an exception to the
warrant requirement applies.” Kilburn v. State, 54 So. 3d 625, 627 (Fla.

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1st DCA 2011) (internal citation omitted). In this case, the state relied on
the inventory search exception. Our courts have elaborated on the
exception:

      An inventory search serves the needs of protection of the
      owner’s property, and protection of police against potential
      danger from such things as explosives.

      For an inventory search to satisfy the fourth amendment,
      law enforcement must conduct the search “in good faith and
      not use the inventory search as a subterfuge to conduct a
      warrantless search for incriminating evidence.” In addition,
      the impoundment and inventory of a vehicle and its contents
      must be performed in accordance with the governmental
      entity’s standardized operating procedures.

Williams v. State, 903 So. 2d 974, 976-77 (Fla. 4th DCA 2005) (internal
citation omitted); see also Leary v. State, 880 So. 2d 776, 778 (Fla. 5th
DCA 2004) (“[S]tandardized criteria or routines must be established to
regulate inventory searches. The police activity challenged must be in
conformity with those procedures.” (citations omitted)); Patty v. State,
768 So. 2d 1126, 1127 (Fla. 2d DCA 2000) (“[A]n impoundment and
inventory search must be conducted according to standardized criteria.”)
“[T]hese standardized procedures, which limit police discretion in
determining the scope of the inventory search, ensure that the police will
not abuse this exception to the warrant requirement.” Patty, 768 So. 2d
at 1127. Further:

      The validity of an inventory search relies on its purpose. The
      court must determine whether the impoundment of the
      vehicle was justified, and not just a pretext to an exploratory
      search of a vehicle. In making that determination, the court
      should consider the reason for the impoundment.

Williams, 903 So. 2d at 977 (internal citation omitted).

   Accordingly, if a department’s standard inventory procedure calls for
the opening of closed containers, then such action can be found to be a
reasonable part of an inventory search. See State v. Wells, 539 So. 2d
464, 469 (Fla. 1989). However, the inventory policy does not need to
mandate that all containers either be opened or that no containers be
opened:

      [I]n forbidding uncanalized discretion to police officers

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      conducting inventory searches, there is no reason to insist
      that they be conducted in a totally mechanical “all or
      nothing” fashion. “[I]nventory procedures serve to protect an
      owner’s property while it is in the custody of the police, to
      insure against claims of lost, stolen, or vandalized property,
      and to guard the police from danger.” A police officer may be
      allowed sufficient latitude to determine whether a particular
      container should or should not be opened in light of the
      nature of the search and characteristics of the container
      itself. Thus, while policies of opening all containers or of
      opening no containers are unquestionably permissible, it
      would be equally permissible, for example, to allow the
      opening of closed containers whose contents officers
      determine they are unable to ascertain from examining the
      containers’ exteriors.    The allowance of the exercise of
      judgment based on concerns related to the purposes of an
      inventory search does not violate the Fourth Amendment.

Florida v. Wells, 495 U.S. 1, 4 (1990) (citations omitted). In sum,
although officers have some discretion with respect to inventory
searches, there must be evidence of the department’s procedures for
such searches. In the absence of any policy whatsoever with respect to
the opening of closed containers, a search of the container is not
sufficiently regulated by the Fourth Amendment. Id. at 4-5.

    Here, the record does not indicate any pretextual reason for
impoundment of the vehicle. The officer testified that the owner could
not be located after the driver was arrested.          Additionally, the
department’s impoundment policy provides for impoundment after a
driver is arrested. There was also no indication that the officer’s search
of the trunk, luggage, and sock was for any reason other than to catalog
the contents of the vehicle before impoundment.

   However, the state provided no evidence of the department’s inventory
policy, other than the officer’s testimony that one existed and that the
contents of the impounded vehicle were required to be inventoried and
logged for liability purposes. This sort of testimony has been found to be
insufficient. See Kilburn, 54 So. 3d at 627 (reversing denial of motion to
suppress where officer testified it was department policy to conduct an
inventory search whenever a vehicle was towed but he acknowledged
there were no standardized criteria for performing such a search and
there was no evidence that it was a standard procedure to open closed
containers during the search); Leary, 880 So. 2d at 778 (finding that the
record lacked sufficient evidence of any standardized procedure where

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the officer testified “only that the vehicle ‘was going to be towed’ from the
premises and it is the sheriff’s policy to inventory vehicles before
towing”); Beezley v. State, 863 So. 2d 386, 387 (Fla. 2d DCA 2003)
(reversing denial of motion to suppress where officer testified that
“pursuant to Department policy, the decision to impound a vehicle is
within an individual officer’s discretion, but after the decision to
impound is made, a complete inventory must be performed”).

    The state points to the officer’s testimony that he was trained to
search the entire vehicle during an inventory search, including contents
of closed containers. However, because of the way the state conducted
the direct examination, it appears the officer was referring to the
department’s search and seizure guide rather than to an inventory
policy. The officer’s testimony simply failed to make it clear that the
officer’s search of the vehicle and his training regarding such searches
was pursuant to a set of standardized procedures related to inventory
searches.     The Riviera Beach Police Department may have such
standardized procedures or may not. There is a total lack of evidence in
the record to suggest, however, that these standardized procedures
existed at the time of the warrantless search of the appellant’s personal
property.

   As an alternative avenue to affirming, the state argues that the search
was legal because the officer developed probable cause after a search of
the driver incident to arrest turned up marijuana. We find the record
was not sufficiently developed for us to undertake a totality of the
circumstances analysis. We reverse and remand for the trial court to
vacate the appellant’s conviction and sentence, grant his motion to
suppress, and permit him to withdraw his plea.

   Reversed and remanded.

TAYLOR and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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