       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 17, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1101
                         Lower Tribunal No. 15-24324
                             ________________


                                Bryan Harris,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant
Attorney General, for appellee.


Before SUAREZ, LAGOA, and SCALES, JJ.

      LAGOA, J.
      Appellant, Bryan Harris (“Harris”), appeals his final judgment of conviction

and sentence, challenging the denial of his motion to suppress physical evidence

from the warrantless search of his backpack following his arrest. Because the

warrantless search was not valid as either a search incident to arrest or an

automobile search, we reverse and remand for further proceedings.

I.    FACTUAL AND PROCEDURAL HISTORY

      About 10:44 a.m. on Thanksgiving Day 2015, Miami Gardens Police

Officers Blanco and Santiesteban were patrolling the residential area of NW 191st

Street and 32nd Avenue in an unmarked vehicle. The area is known for dirt bikes

being illegally driven on the streets.

      The officers heard the loud noise of such a dirt bike and observed Harris

driving one in their direction. The dirt bike lacked headlights, taillights, turn

signals, rearview mirrors, and a tag. Officer Santiesteban, the driver, conducted a

U-turn and followed Harris. When Harris ran a red light, the officers activated their

lights and siren in order to conduct a traffic stop of Harris. Harris attempted to

drive away, but this ended quickly as Harris fell off the dirt bike. Officer Blanco,

the passenger, then exited the unmarked police vehicle and arrested Harris for

reckless driving and driving an unregistered vehicle. Officer Blanco removed a

backpack from Harris’s person, handcuffed Harris, and placed the backpack on the

hood of the unmarked police vehicle. Officer Blanco then directed Harris, who



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was handcuffed, to sit on the grass approximately five feet from the officers’

vehicle.

         In their attempt to identify Harris and the dirt bike, Officer Blanco asked

Harris if he had any proof of ownership. Harris stated he had paperwork in his

backpack and told Officer Blanco to look in the small front compartment of the

backpack.1 Officer Blanco admitted that upon opening the front compartment, he

found paperwork for the dirt bike.2           Officer Blanco further testified that Harris

specifically told him not to open the main compartment of the backpack.3 When

1 On cross-examination, Officer Blanco acknowledged that Harris “directed [him]
to the front zip pocket of the back pack.”
2   Specifically, Officer Blanco testified:

               Q.    Okay.
                     And you opened the backpack the front pocket
               where he told you to go?
               A.    Correct.
               Q.    And inside that front zip pocket you saw
               paperwork concerning the dirt bike?
               A.    To a dirt bike, correct.
               Q.    To a dirt bike?
               A.    Correct.
3   Specifically, Officer Blanco testified:

               Q.     And at what point did you go back to the
               backpack?
               A.     We asked him if he had any proof of ownership to
               the dirt bike. He stated that he had paperwork to it in his
               backpack and also I went through his backpack to open it
               up. He stopped me and directed me as I was going to
               open the main compartment. He stopped me, directed me

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Officer Blanco opened the smaller compartment, he smelled marijuana and, based

on that smell, proceeded to search the remainder of the bag, eventually finding

marijuana, oxycodone, and drug paraphernalia.

      Harris was subsequently charged with possession of marijuana, oxycodone,

and drug paraphernalia. Harris filed a motion to suppress the physical evidence

found within his backpack.     At the two-day suppression hearing, the State

presented the testimony of Officer Blanco and a portion of the deposition of

Officer Santiesteban. The trial court denied the motion to suppress, finding that

            to the front smaller compartment which I opened up.

                    ****
            Q.     So once you discovered that there was paperwork
            for the dirt bike that’s when you opened the main pouch
            of the backpack?
            A.     That’s when I opened the small zipper and I
            smelled marijuana coming out of it then I opened the
            main compartment.

                   ****
            Q.     He specifically told you do not open the larger
            container, right?
            A.     Correct.
            Q.     But regardless of what he said according to you his
            consent or non-consent at that point would have been
            irrelevant, right?
            A.     Correct.
            Q.     No matter what, you would have searched that
            backpack at that point?
            A.     Correct. I would have searched it for inventory.
            Q.     Inventory search no matter what you were going to
            search that backpack?
             A. Inventory to arrest.

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there was probable cause to stop Harris and that there was a valid search incident

to arrest and determining the other presented arguments were either irrelevant or

moot in light of the first two findings. Based on the trial court’s ruling, Harris

entered a plea of guilty and reserved his right to appeal the denial of his motion to

suppress. This appeal timely followed.

II.   STANDARD OF REVIEW

      In reviewing a trial court’s ruling on motions to suppress, “appellate courts .

. . accord a presumption of correctness . . . to the trial court’s determination of

historical facts,” but review de novo “mixed questions of law and fact that

ultimately determine constitutional issues arising in the context of the Fourth . . .

Amendment.” Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). In considering the

relevant case law, we are required “to adhere to the interpretations of the United

States Supreme Court,” but are “not bound to follow the decisions of other federal

courts.” State v. Markus, 211 So. 3d 894, 902 (Fla. 2017); accord Smallwood v.

State, 113 So. 3d 724, 730 (Fla. 2013). If no U.S. Supreme Court precedent is

factually or legally on point, we may review “Florida state precedent, as well as

other state and federal decisions for guidance on a search and seizure issue.”

Markus, 211 So. 3d at 902.




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III.   ANALYSIS

       On appeal, Harris challenges the trial court’s determination that the search of

his backpack was valid as a search incident to his arrest. In response, the State

supports affirmance of the trial court’s determination, and also argues, in the

alternative, that Harris consented to the search of his backpack.

       A.     Search Incident to Arrest

       Warrantless searches “‘are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated

exceptions.’” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United

States, 389 U.S. 347, 357 (1967)). Searches conducted incident to the arrest of a

person are one such exception. See United States v. Robinson, 414 U.S. 218, 224-

25 (1973). However, as the Supreme Court has acknowledged, this exception has

been applied inconsistently.      See, e.g., Gant, 556 U.S. at 350 (noting the

“checkered history of the search-incident-to-arrest exception”); Chimel v.

California, 395 U.S. 752, 755 (1969) (“The decisions of this Court bearing upon

that question have been far from consistent, as even the most cursory review makes

evident.”).

       The State contends that the trial court was correct in finding that Officer

Blanco’s search of Harris’s backpack was incident to arrest. First, the State argues

that the backpack was a container within Harris’s reach both at the time of his



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arrest and through the time of the search. See Chimel, 395 U.S. at 762-63. Second,

the State argues that, as a container on Harris’s person at the time of his arrest, the

backpack was subject to search even if it was removed from Harris’s reach.

Robinson, 414 U.S. at 236.        Third, the State argues that the backpack was

searchable under the automobile exception as most recently iterated by Gant.

Finally, the State argues that under the tipsy coachman doctrine this Court may

affirm the trial court’s ruling by finding that Harris consented to the search of the

back pack. We address each argument in turn.

      1.     Within Harris’s Reach

      Modern jurisprudence delineating the search incident to arrest exception

begins with Chimel v. California, 395 U.S. 752 (1969). In Chimel, the Court held

that when an individual is arrested, the police officer may search the arrestee’s

person and the area within his immediate control, the latter being “the area from

within which he might gain possession of a weapon or destructible evidence.” Id.

at 763. While the purpose of the exception is for officer safety and preservation of

evidence, no showing that either exists is necessary for the search to fall within the

exception. Robinson, 414 U.S. at 235. Instead, subsequent litigation has mostly

dealt with the concept of the area within the control of the arrestee.

      In the instant case, Harris’s backpack was not in the area within his

immediate control at the time of the search. As noted, Officer Blanco removed the



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backpack from Harris, handcuffed him, and then sat him down against a fence five

feet from the car’s hood. Officer Blanco placed the backpack on the hood, and

within five minutes, examined it. Even if Harris was a combination of “an acrobat

[or] Houdini,”4 we do not see how Harris could have gained access to the backpack

following his arrest. Thus, we find that Harris’s backpack was outside his area of

control. See State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) (finding an

arrestee out of reach of car where he had been separated from car, handcuffed, and

was under supervision of other officers). Accordingly, the search of the backpack

cannot be upheld under this theory.

      2.    A Container on Harris’s Person

      As part of the search incident to arrest exception, courts have faced difficulty

in determining whether a container on or near an arrestee may be searched. The

basic premise is that an officer may seize, inspect, and search any container found

on the arrestee’s person during a search incident to arrest. See Robinson, 414 U.S.

at 236. In Robinson, an officer conducting a search incident to arrest found a

crumpled package of cigarettes. Id. at 223. Seizing it, he inspected it and found

heroin. Id. The Court concluded that “[h]aving in the course of a lawful search
4 United States v. Lyons, 706 F.2d 321, 330 (D.C. Cir. 1983) (“To determine
whether a warrantless search incident to an arrest exceeded constitutional bounds,
a court must ask: was the area in question, at the time it was searched, conceivably
accessible to the arrestee-assuming that he was neither ‘an acrobat [nor] a
Houdini’?” (footnote omitted) (quoting United States v. Mapp, 476 F.2d 67, 80 (2d
Cir.1973))).


                                          8
come upon the crumpled package of cigarettes, [the officer] was entitled to inspect

it; and when his inspection revealed the heroin capsules, he was entitled to seize

them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct.”

Id. at 236; see also Gustafson v. Florida, 414 U.S. 260 (1973). Robinson thereby

opened the door for the search of containers found incident to arrest.

      The Supreme Court revisited this doctrine a few years later in United States

v. Chadwick, 433 U.S. 1 (1977), abrogated on other grounds by California v.

Acevedo, 500 U.S. 565 (1991). In Chadwick, federal narcotics agents received

intelligence that a particular footlocker contained marijuana. Id. at 3-4. After

tracking down the footlocker, a trained dog alerted the agents that the footlocker

contained marijuana.    Id. at 4.    The agents arrested the three individuals in

possession of the footlocker and seized the footlocker. Id. An hour and a half after

the arrests, the agents opened the footlocker without a warrant. Id. at 5. After

holding that the Fourth Amendment applied to the footlocker, the Court addressed

whether the warrantless search was permissible. Id. at 11-16. Reaching the search

incident to arrest exception, the Court noted that “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,’ or no

exigency exists.” Id. at 15 (quoting Preston v. United States, 376 U.S. 364, 367

(1964)). The Supreme Court further stated:



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             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.

Id. Based on the federal agent’s control of the footlocker, the Court held that the

warrantless search violated the Fourth Amendment. Id. at 15-16.

      We need not, however, analyze the facts of this case based on Chadwick, as

the Supreme Court’s decision in Gant applies to the instant case. Although Gant

focused on the issue of searching automobiles, it held that once an arrestee has

been secured, both justifications for the search incident to arrest exception—officer

safety and preservation of evidence—are absent, as “there is no possibility that an

arrestee could reach into the area that law enforcement officers seek to search.”

Gant, 556 U.S. at 339, 343 (rejecting the Court’s previous precedent in New York

v. Belton, 453 U.S. 454 (1981), which interpreted Chimel to authorize “a vehicle

search incident to every recent occupant’s arrest,” and holding that “the Chimel

rationale authorizes police to search a vehicle incident to a recent occupant’s arrest

only when the arrestee is unsecured and within distance of the passenger

compartment at the time of the search.”); accord Smallwood v. State, 113 So. 3d

724, 735 (Fla. 2013). Indeed, the Florida Supreme Court interpreted Gant to

exactly do that:



                                         10
             Gant demonstrates that 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.

Smallwood, 113 So. 3d at 735; see also Ancrum v. State, 146 So. 3d 1217 (Fla. 2d

DCA 2014) (invalidating a search of a jacket from which the defendant had been

separated by applying Gant and Smallwood in holding that 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); State v. K.S., 28 So. 3d 985 (Fla. 2d DCA 2010)

(invalidating a search of a glovebox as incident to arrest where defendant had been

secured and where arrest had been for fleeing and eluding).

      The State argues that Brown v. State, 24 So. 3d 671 (Fla. 5th DCA 2009),

which was decided after Gant, applies to the instant case.          We find Brown

distinguishable from the instant case. In Brown, the Fifth District Court of Appeal

held that the search incident to arrest is valid “when the offense of arrest of an

occupant of a vehicle is . . . for a crime that qmight yield physical evidence,” and

the “police may search the passenger compartment of the vehicle, including

containers, to gather evidence, irrespective of whether the arrestee has access to the

vehicle at the time of the search.” Id. at 681. The court in Brown, however,

explicitly distinguished the crime of theft, which the Brown defendant committed,

from an arrest for traffic violations, which Harris committed in the instant case.


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Specifically, the Fifth District concluded that “‘[i]n 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.’” Id. at 677 (quoting Gant, 556 U.S.

at 343).

      Likewise, the only post-Gant, non-automobile Florida case that differs in

result is easily distinguishable. In State v. Bultman, 164 So. 3d 144 (Fla. 2d DCA

2015), the police went to Bultman’s house to search for a suspect in an unrelated

case. Id. at 145. Although Bultman consented to the search, the police grew

increasingly suspicious of her due to the smell of marijuana and the presence of

methamphetamine on the premises.            Id.    The officers asked Bultman for

identification, which she retrieved from her purse. Id.

             However, Bultman then attempted to hide her purse from
             the officers, and when they asked to search the purse, she
             refused. The officers repeatedly asked Bultman to place
             the purse on the hood of their police car for officer safety
             and twice had to remove it from her person. The officers
             arrested Bultman for resisting their commands to leave
             the purse on the hood of the car and conducted a search
             of her purse incident to arrest, wherein they found drugs
             and paraphernalia.

Id. Although upon arresting Bultman the officers had arguably reduced the purse

to their control, it was the officers’ concern about a weapon and Bultman’s refusal

to separate herself from the purse that led to the arrest in the first place. In contrast




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to an arrest on an unrelated event and a search of the purse, Bultman’s arrest was

directly caused by her actions towards her purse.

      Applying Smallwood, Gant, and Chadwick to the instant case, it is clear that

the police officers had reduced Harris’s backpack to their exclusive control and

that Harris had no possibility of accessing the backpack. Having so secured the

backpack, the police officers were not entitled to search the backpack without a

warrant as a search incident to arrest.

      3.     Automobile Search

      In addition to clarifying the application of Chimel in the automobile context,

Gant also explained that an exception unique to the automobile context and

independent of Chimel existed. Gant, 556 U.S. at 343-44. Specifically, the Court

held that, even when Chimel would not authorize a search incident to arrest of a

vehicle, a search of the vehicle incident to the arrest will be upheld when “it is

‘reasonable to believe evidence relevant to the crime of arrest might be found in

the vehicle.’” Id. at 343 (quoting Thornton v. United States, 541 U.S. 615, 632

(2004)); accord Davis v. United States, 564 U.S. 229, 234-35 (2011).

      Assuming a dirt bike qualifies as a vehicle for purposes of this exception, the

facts are clear that Harris’s backpack was not a part of the dirt bike nor stored on or

in it. Instead, the backpack was worn by Harris, and after Harris and the dirt bike

were separated, Officer Blanco separated Harris from his backpack. Accordingly,



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Harris’s backpack could not be searched as a part of the vehicle of the arrestee

exception established in Gant.

      B.     Consent to Search

      Lastly, the State argues that this Court may affirm the trial court’s denial of

the motion to suppress based on the assertion that Harris consented to the search of

the backpack. While it is true that a warrant is not required to conduct a search if

the individual validly consents to the search, Schneckloth v. Bustamante, 412 U.S.

218, 219 (1973), the State has the burden of proving by a preponderance of the

evidence that the consent was freely and voluntarily given, and the issue of

voluntary consent “is a question of fact based upon the totality of the

circumstances.” Wilson v. State, 952 So. 2d 564, 569 (Fla. 5th DCA 2007).

      In the instant case, the trial court made no finding that Harris consented to

the search, as it had already concluded that the search was a valid search incident

to arrest.   The State, therefore, asks this Court to affirm based on the tipsy

coachman doctrine. This doctrine, however, is inapplicable “where a lower court

has not made factual findings on an issue.” See Bueno v. Workman, 20 So. 3d

993, 998 (Fla. 4th DCA 2009). Accordingly, we cannot affirm the denial of the

motion to suppress based on a factual question not reached below. See Powell v.

State, 120 So. 3d 577, 590-91 (Fla. 1st DCA 2013), modified on reh’g. On

remand, the trial court may consider the question upon proper motion by the



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parties. As this Court only addressed the search incident to arrest issue, either

party may raise below other exceptions to the Fourth Amendment’s warrant

requirement.

III.   CONCLUSION

       Based on the foregoing, we find that the search of Harris’s backpack was not

a valid search incident to arrest and was not a valid search under Gant’s

automobile exception. Additionally, because the trial court made no factual

findings regarding the issue of consent, it would be improper for us to consider this

argument on appeal. Accordingly, we reverse and remand for further proceedings

consistent with this opinion.

       Reversed and remanded for further proceedings.




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