         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

              Appellant,

 v.                                                      Case No. 5D15-3429

EUGENE LENARD MAYE,

              Appellee.

________________________________/

Opinion filed August 12, 2016

Appeal from the Circuit Court
for Orange County,
Keith A. Carsten, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellant.

James S. Purdy, Public Defender, and
Robert E. Wildridge, Assistant Public
Defender, Daytona Beach, for Appellee.


LAWSON, C.J.

       The State appeals an order granting a motion to suppress in its case against

Eugene Maye. We have jurisdiction. Fla. R. App. P. 9.140(c)(1)(B). The State argues

that the trial court erred in finding that an unlawful search occurred when a police officer
pressed the panic button on a key fob obtained in a lawful search incident to arrest. We

agree, and reverse.

       Police officers arrested Maye for urinating in public at an Orlando-area shopping

plaza. In the search incident to Maye’s arrest, an officer found and seized an electronic

vehicle key fob. The officer asked Maye if he had a vehicle in the shopping plaza parking

lot, which he denied. The officer then pressed a button on the fob, which activated an

alarm sounding from a nearby white Dodge parked at the plaza. An officer looked into

the Dodge and saw, in plain view, a plastic baggy that appeared to contain cocaine. The

substance was ultimately seized and Maye, post-Miranda, admitted that the substance

was cocaine and belonged to him.

       The trial court found that although the key fob was lawfully obtained by police in

their search incident to Maye’s initial arrest, the officer had no lawful basis for pressing a

button on the key fob (and violated Maye’s Fourth Amendment rights by doing so). This

argument presumes, of course, that the officer’s act of pressing the key fob button

constituted a search for Fourth Amendment purposes. We hold that it was not. As

explained in Smallwood v. State, 113 So. 3d 724, 730 n.3 (Fla. 2013) (citing United States

v. Jones, 132 S.Ct. 945, 949–50 (2012)):

              The United States Supreme Court has articulated two
              standards for determining when a Fourth Amendment search
              has occurred: (1) whether there has been a physical trespass
              or intrusion upon private property, and (2) whether the person
              searched had a reasonable expectation of privacy in the area
              searched by government officials.

       The second factor is determinative here, because Maye had no reasonable

expectation of privacy in the only information that could be obtained when the officer

touched the button on the fob lawfully in his hand—the presence of Maye’s vehicle in the



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public lot. Although this issue appears to be one of first impression in Florida, it has been

addressed by the federal Eighth Circuit and several other state courts, which all reached

the same conclusion. See, e.g., United States v. Cowan, 674 F.3d 947, 955 (8th Cir.

2012); State v. Bland, 2013 WL 5755670, at *4 (Del. Super. Ct. 2013); Com. v. Harvard,

64 A.3d 690, 699 (Pa. Super. Ct. 2013); Wiley v. State, 388 S.W. 3d 807, 819 (Tex. Crim.

App. 2012).

       We reverse the suppression order and remand for further proceedings.

       REVERSED AND REMANDED.


LAMBERT and EDWARDS, JJ., concur.




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