                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-5289

CLARENCE E. JOHNSON,

      Appellee.


_____________________________/

Opinion filed January 31, 2017.

An appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney
General, Tallahassee, for Appellant.

David W. Collins, Monticello, for Appellee.


WINSOR, J.

      Facing what it accurately called “a highly unique factual scenario,” the trial

court suppressed evidence officers found in Clarence Johnson’s car. This is the

State’s appeal. Finding no Fourth Amendment violation on the particular facts we

face, we reverse.
                                          I.

      Because “the totality of the circumstances controls in cases involving the

Fourth Amendment,” State v. Baez, 894 So. 2d 115, 117 (Fla. 2004), we begin with

a detailed look at the facts.

      Police officers went to Johnson’s house to execute an arrest warrant on

charges not relevant here. Johnson was not home when they arrived, but he pulled

into his driveway just as the officers were leaving. Before Johnson got out of his car,

one of the officers approached and told him the news. Johnson’s child was asleep in

the car, and Johnson asked if the officers could arrest him beyond the child’s sight.

The officers accommodated that request, and Johnson got out and walked behind the

car. There, Johnson was placed under arrest, handcuffed, and searched.

      The officer searching Johnson found an unbound bundle of cash—some

$1,188—in Johnson’s pocket. The officer initially laid the cash on the trunk of

Johnson’s car but then “dumped” it through Johnson’s open driver-side door onto

the driver’s seat, concerned the cash might otherwise blow away.

      Not long after, and while Johnson and the officers were still in the driveway,

Johnson’s friend showed up to take care of Johnson’s child and property. An officer

asked Johnson to choose between entrusting the friend with the cash and returning

the cash to Johnson’s pocket, where it would be inventoried at the jail. Johnson chose

the former, and an officer reached into Johnson’s still-open car door to retrieve the

                                          2
cash. As he reached inside, the officer noticed “just basically sitting there was a

white powdery substance” in a baggie. The officer recognized the substance as

cocaine and removed the baggie. The State charged Johnson with possession, and

Johnson moved to suppress the evidence.

                                          II.

      Johnson has not challenged the officers’ authority to arrest him or to search

him pursuant to that arrest. His complaint is with the officer’s intrusion into his car

to retrieve the cash—an intrusion Johnson contends required a warrant or probable

cause. The trial court granted the motion to suppress. It recounted the facts,

concluded that the “baggie was not in plain view,” and ultimately determined that

“this was a warrantless illegal search and seizure.”

      On appeal, the State does not argue that the officers had authority to search

Johnson’s car for evidence; 1 its argument is that under the circumstances, the

officer’s intrusion into the car was to protect Johnson’s property, meaning no

warrant or probable cause was required. Accordingly, the State argues there was no


      1
         Nor does the State support the intrusion as a search incident to arrest. The
trial court’s observation that Arizona v. Gant, 556 U.S. 332 (2009), did not support
the officers’ actions is therefore beside the point. Indeed, Gant recognized that a
search incident to arrest is not the only way to justify the warrantless entry into an
automobile. See id. at 338, 346-47; see also United States v. Frasher, 632 F.3d 450,
455 (8th Cir. 2011) (“Frasher’s argument that the search was not proper under
Arizona v. Gant is misplaced because the search was not conducted incident to arrest,
but rather was an inventory search. . . . Gant acknowledges that a search of a vehicle
may still be allowed if it is shown that another warrant exception applies.”).
                                           3
Fourth Amendment violation. Furthermore, the State argues, even if there were a

violation, the exclusionary rule would not apply.

                                        III.

       “The ultimate standard set forth in the Fourth Amendment is reasonableness.”

Cady v. Dombrowski, 413 U.S. 433, 439 (1973). In a series of cases evaluating

reasonableness, the United States Supreme Court has recognized that some

“searches” are conducted in connection with police’s “community caretaking

functions, totally divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute.” Id. at 441. In those

circumstances, an intrusion that might otherwise violate the Fourth Amendment can

be lawful.

      In Cady, for example, a police officer was detained for drunk driving. Id. at

436. The officer’s service revolver was not on him, and other officers checked to see

if it was in his car—they feared if it was unsecured, it might wind up in the wrong

hands. Id. at 436-37, 443. While in the car, they found evidence of the officer’s

involvement in another crime. Id. at 437. The officer sought to suppress that

evidence based on the warrantless intrusion. See id. But because the intrusion was

to protect the public from an unsecured service revolver—not to look for evidence

of a crime—the Court held “that the search was not ‘unreasonable’ within the

meaning of the Fourth and Fourteenth Amendments.” Id. at 448.

                                         4
      Similarly, in Harris v. United States, the Supreme Court found no Fourth

Amendment violation when an officer discovered evidence while securing a

defendant’s car. 390 U.S. 234, 236 (1968). The defendant was in custody; his car

was impounded. Id. at 235. An officer had opened a car door to roll up an open

window, and he found evidence (a robbery victim’s registration card) laying “face

up on the metal stripping over which the door closes.” Id. at 235-36. Under the

particular circumstances of that case, “the discovery of the card was not the result of

a search of the car, but of a measure taken to protect the car while it was in police

custody.” Id. at 236. “Nothing in the Fourth Amendment requires the police to obtain

a warrant in these narrow circumstances.” Id.; see also Cooper v. California, 386

U.S. 58, 61-62 (1967) (finding search of vehicle for safety of custodians not

unreasonable).

      This court applied these same principles in State v. Oglesby, 397 So. 2d 714

(Fla. 1st DCA 1981). Lawrence Oglesby, a corrections officer, suffered a medical

emergency and was rushed to the hospital. Id. at 714. Another officer went to put

some of Oglesby’s personal items in his car, where the officer discovered a gun. Id.

Other officers then removed the gun, along with bullets, mace, a knife, and a radio;

they removed them for safekeeping because the car was in an area accessible to

inmates. Id. It turned out the radio was stolen property, so Oglesby was charged with

theft. Id. at 715. The trial court suppressed the evidence, concluding that the officers

                                           5
found the radio through an illegal search. Id. But this court reversed because the

“good faith action of taking into custody for storage and safekeeping” the radio and

other items “was not constitutionally unreasonable under the reasoning of Cady v.

Dombrowski and Harris v. United States.” Id. (citations omitted); see also Cobb v.

State, 378 So. 2d 82, 83 (Fla. 3d DCA 1979) (finding no unlawful intrusion, noting

the undisputed fact “that the officer opened the door, not in order to search the car

or even to look into it, but rather only in the process of securing the vehicle against

theft, vandals and the elements during the time that it was to be left unattended on

the public streets while its owner was in jail”).

      Consistent with these cases, the officer’s intrusion into Clarence Johnson’s

car was not unreasonable under the Fourth Amendment. It is undisputed that the

officer reached into Clarence Johnson’s open car door to retrieve Johnson’s cash for

safekeeping, not to search for evidence of a crime. 2 The limited intrusion “was no

more than a routine and good faith attempt, in the exercise of reasonable caution, to

safeguard the defendant’s own property.” Cobb, 378 So. 2d at 83.




      2
        Even if the officer’s intent was disputed, the Supreme Court has made it clear
that an “officer’s subjective motivation is irrelevant.” Brigham City v. Stuart, 547
U.S. 398, 404 (2006). “An action is ‘reasonable’ under the Fourth Amendment,
regardless of the individual officer’s state of mind, ‘as long as the circumstances,
viewed objectively, justify [the] action.’” Id. (quoting Scott v. United States, 436
U.S. 128, 138 (1978)).
                                           6
      Because the officer’s reach into the car did not violate the Fourth Amendment,

the only remaining question is whether the officer’s seizure of the cocaine once

inside the car was lawful. “Objects falling in the plain view of an officer who has a

right to be in the position to have that view are subject to seizure and may be

introduced in evidence.” State v. Cash, 275 So. 2d 605, 606 (Fla. 1st DCA 1973);

accord Harris, 390 U.S. at 236. The trial court found that the officer who reached

into the car to recover the money “observed a baggie located at the back of the

driver’s seat toward the driver’s door.” This finding is consistent with both the

hearing testimony and Johnson’s representation in his motion to suppress. The

officer necessarily would have had a clear view of the driver’s seat when he reached

in to retrieve cash from the driver’s seat. Accordingly, if the officer had a right to

reach into the car (and we hold he did), he had a right to seize the cocaine.3

      The trial court therefore should not have suppressed the evidence.

      REVERSED AND REMANDED.

OSTERHAUS, J., CONCURS; LEWIS, J., CONCURS IN RESULT WITHOUT
OPINION.

      3
         The trial court’s order also found that “[t]he baggie was not in plain view
and had not been seen initially when the money was placed into the vehicle for
unknown reasons,” and we must accept all fact findings supported by competent,
substantial evidence, Vaughn v. State, 176 So. 3d 354, 355-56 (Fla. 1st DCA 2015).
To the extent the trial court meant the baggie was not in plain view from outside the
vehicle—or to the officer who dumped the cash into the vehicle—it is supported by
the record. If the baggie was at the back of the driver’s seat and toward the door (as
the trial court found), it would not necessarily be in plain view to someone passing
by, or to an officer tossing cash inside.
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