              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT

CAMERON D. ANCRUM,                        )
DOC #H43092,                              )
                                          )
             Appellant,                   )
                                          )
v.                                        )       Case No. 2D13-5329
                                          )
STATE OF FLORIDA,                         )
                                          )
             Appellee.                    )
                                          )

Opinion dated September 3, 2014.

Appeal from the Circuit Court for
Highlands County; William D. Sites
and Wayne M. Durden, Judges.

Howard L. Dimmig, II, Public Defender,
and Richard J. Sanders, Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Donna S. Koch,
Assistant Attorney General, Tampa,
for Appellee.


WALLACE, Judge.

             Cameron D. Ancrum appeals his judgment and sentences for possession

of a firearm with an altered serial number, possession of cocaine, possession of

cannabis, and possession of paraphernalia after entering an open, no contest plea to
those offenses while reserving his right to appeal the trial court's denial of his dispositive

motion to suppress. We affirm in part and reverse in part.

                  I. THE FACTUAL AND PROCEDURAL BACKGROUND

              Mr. Ancrum argued in the trial court that police illegally searched his

personal property and seized contraband after a relative consented to a search of the

bedroom where he was staying. The relative leased a three-bedroom apartment and

had permitted Mr. Ancrum to stay there with her and her children for a couple of weeks

before his arrest. Mr. Ancrum occupied one of the bedrooms. Although he had

provided the relative some money for expenses, he did not pay rent. The relative and

her children continued to have access to the bedroom that Mr. Ancrum occupied.

Moreover, Mr. Ancrum did not take any steps to establish any greater degree of privacy

in his bedroom by padlocking the door or securing any other space inside of the room.

              When police officers arrived at the apartment to arrest Mr. Ancrum on

charges unrelated to this case, the relative permitted them to enter the apartment and

the bedroom where Mr. Ancrum was sleeping. After the officers arrested Mr. Ancrum

and removed him from the room, the relative consented to a search of the bedroom.

The officers found crack cocaine in an open cigarette pack on the floor of the bedroom

closet and cannabis and paraphernalia inside of a jacket on the bedroom floor. Based

upon the evidence seized during the search, the State charged Mr. Ancrum with

possession of cocaine with intent to sell within 1000 feet of public housing, possession

of cannabis, and possession of paraphernalia.1 Mr. Ancrum moved to suppress the



              1
               The officers also seized a firearm, which fell out of the bed where Mr.
Ancrum was sleeping during his arrest. The State charged Mr. Ancrum with possession
of a firearm with an altered serial number after seizing the firearm. Mr. Ancrum has not
                                              2
evidence seized during the search. After the trial court denied his motion, Mr. Ancrum

entered an open plea to possession of cocaine, possession of cannabis, and

possession of paraphernalia while reserving his right to appeal the trial court's

dispositive ruling on his motion to suppress.

                            II. THE TRIAL COURT'S RULING

              In denying Mr. Ancrum's motion to suppress, the trial court concluded that

the relative had actual authority to consent to the officers' entry into her apartment and

had apparent authority to permit a search of the bedroom that Mr. Ancrum occupied.

The trial court further concluded that "[t]he officers had the authority to search the closet

in the bedroom occupied by [Mr. Ancrum] based upon consent given by [the relative].

The cigarette pack that contained cocaine was not particularly identifiable to [Mr.

Ancrum] at the time and was lawfully seized and searched." Conversely, the trial court

found that Mr. Ancrum's jacket "was particularly identifiable to [Mr. Ancrum] and

therefore [the relative] did not have apparent authority to provide consent to the

officer[s] for the search of the contents within the jacket." The trial court concluded,

however, that because "the jacket was on the bedroom floor near the bed in which [Mr.

Ancrum] was located and arrested, was within plain view of the officers, and was within

the wing span of [Mr. Ancrum] at the time of his arrest[,] . . . the jacket was properly

searched as incident to the arrest."

                                       III. DISCUSSION

A. The Consent to Search




challenged the seizure of the firearm or his conviction for possession of a firearm with
an altered serial number in this appeal.
                                              3
              On appeal, Mr. Ancrum concedes that his relative had actual authority to

consent to the search of the bedroom that he occupied, but he challenges the search of

the cigarette pack and the search of the jacket. We agree with the trial court's legal

conclusion that the relative had actual authority to consent to the search of the

apartment and at least apparent authority to consent to the search of the bedroom. In

addition, the officers reasonably believed that the relative's authority and consent

extended to the bedroom closet, which was not secured in any way.

B. The Cigarette Pack

              We also agree with the trial court's finding that the open cigarette pack

discovered on the closet floor was properly seized and searched because the cigarette

pack was not particularly identifiable as the personal property of Mr. Ancrum for two

reasons. First, the cigarette pack was not secured inside of a purse or backpack, but

was open and lying on the floor. Second, unlike a purse or backpack, a cigarette pack

is not an inherently personal item. People do not generally store items intended to be

kept private in a cigarette pack. When left open in an area to which others have

common access, a cigarette pack is arguably similar to a box of cookies or a pack of

gum that might be opened by others.

              Because of the nature and location of the open cigarette pack, the officers

could have reasonably believed that the relative had common authority over and

common use of the cigarette pack. Further, the officers knew that Mr. Ancrum had only

been staying in the apartment for a couple of weeks, and it would not be unreasonable

to assume that someone other than Mr. Ancrum had left the cigarette pack on the closet

floor. See King v. State, 79 So. 3d 236, 238-39 (Fla. 1st DCA 2012) ("[L]aw


                                             4
enforcement may only rely on a person's apparent authority to give consent [to search

personal property] if such consent is reasonable given the totality of the circumstances."

(quoting Brock v. State, 24 So. 3d 703, 704 (Fla. 1st DCA 2009)). Under the

circumstances shown here, we conclude that the officers were not required to conduct

further inquiry about ownership of the cigarette pack before searching it. See id. at 239

("If the basis for the asserted authority is not clear, the officer must conduct further

inquiry before relying on the third party's representations.").

C. The Jacket

              On the other hand, we agree with the trial court's finding that the jacket

was a personal item, particularly identifiable to Mr. Ancrum, and that the relative did not

have apparent authority to consent to the search of the jacket. We disagree, however,

with the trial court's determination that the officers' search of the jacket was justifiable as

a search incident to Mr. Ancrum's arrest.

              "Searches incident to arrests . . . are permitted: (1) to protect the officer's

safety, and (2) to prevent destruction of evidence." Brown v. State, 377 So. 2d 819, 820

(Fla. 1st DCA 1979) (interpreting Chimel v. California, 395 U.S. 752 (1969)).

Accordingly, "[a] warrantless search incident to a lawful arrest is limited to the area

within the immediate control of the defendant." State v. Futch, 715 So. 2d 992, 994

(Fla. 2d DCA 1998). "A warrantless search outside the area controlled by a defendant

cannot be upheld as a search incident to an arrest." Brown, 377 So. 2d at 821.

              In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court addressed

the search of a motor vehicle incident to the arrest of a defendant who had recently

been an occupant of the vehicle. The Court held, in part, that once law enforcement


                                              5
had removed the defendant from the vehicle, a search of the vehicle incident to the

defendant's arrest could not be justified as a means to protect the arresting officer or to

prevent the destruction of evidence because the defendant no longer had access to the

vehicle or its contents. Id. at 341-48.

              Recently, in Smallwood v. State, 113 So. 3d 724 (Fla. 2013), the Florida

Supreme Court applied the Supreme Court's reasoning in Gant to the search of a

defendant's cell phone incident to his arrest. The court noted that after Gant, "while the

search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is

physically separated from an item or thing, and thereby separated from any possible

weapon or destructible evidence, the dual rationales for this search exception no longer

apply." Id. at 735. Accordingly, the search of an item from which a defendant has been

physically separated cannot be upheld as a search incident to the defendant's arrest.

              Here, Mr. Ancrum's jacket was located on the floor in the bedroom where

Mr. Ancrum was arrested. And, while arresting Mr. Ancrum, the officers pulled him from

his bed to the floor. But there was no evidence about the proximity of the jacket to the

bed or Mr. Ancrum, and there was no testimony that the jacket was within his immediate

control at any point. Thus the trial court's finding that the jacket was within Mr.

Ancrum's "wing span"2 is not supported by the evidence. More important, the officers

removed Mr. Ancrum from the bedroom before the search. Thus the trial court's



              2
               "In law enforcement training, the phrases used to remember the area that
can be searched following the arrest of a person are often referred to as the area of
'immediate control,' the theoretical 'wingspan' of the arrested person, or the grabbable
area." Jeffrey R. Beck, Arizona v. Gant: Heightening a Person's Expectation of Privacy
in a Motor Vehicle Following Searches Incident to Arrest, 55 S.D. L. Rev. 299, 307
n.106 (2010) (citing John G. Mills, Jr. et al., The Law Officer's Pocket Manual, § 7.6
(2008 ed.)).
                                              6
conclusion that the officers could search the jacket incident to Mr. Ancrum's arrest is

contrary to the holding in Smallwood because Mr. Ancrum was physically separated

from the jacket when it was searched. Accordingly, we reverse the trial court's denial of

the motion to suppress with regard to the cannabis and the paraphernalia found in the

jacket.

                                   IV. CONCLUSION

              For the foregoing reasons, we affirm the trial court's order to the extent

that it denies suppression of the rock cocaine discovered in the cigarette pack, and we

affirm Mr. Ancrum's convictions and sentences for possession of a firearm with an

altered serial number and for possession of cocaine. We reverse the order to the extent

that it denied suppression of the cannabis and paraphernalia found in Mr. Ancrum's

jacket, and we reverse Mr. Ancrum's convictions and sentences for possession of

cannabis and for possession of paraphernalia. On remand, the trial court shall

discharge Mr. Ancrum on those charges.

              Affirmed in part, reversed in part, and remanded.



ALTENBERND and SLEET, JJ., Concur.




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