Opinion
No. 92-01415.
November 5, 1993.
Appeal from the Circuit Court, Pinellas County, W. Douglas Baird, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Elaine L. Thompson, Asst. Atty. Gen., Tampa, for appellant.
William G. Pontrello, Clearwater, for appellee.
The state appeals the trial court's order which granted Carlton McCray's motion to suppress cocaine found in McCray's hat. We reverse because the search was incident to an arrest.
Although McCray's motion sought to suppress "all evidence, statements, contraband, pills, and drugs," the evidentiary hearing on his motion and the single issue argued by both McCray and the state in this appeal dealt only with the cocaine seized in McCray's hat. We, therefore, shall address only the issue of the seizure of cocaine in this appeal.
The evidence adduced at the hearing on the motion to suppress revealed the following facts. On September 18, 1991, Officer Colton, a police officer for the Pinellas County Campus Police Department, was on duty at Clearwater High School. At 6:45 p.m. Colton noticed a car with four passengers on the school's property. Colton observed a fifth individual speaking to the people in the car. After watching the group for approximately fifteen minutes, Colton observed the occupants of the car throwing a beer can and wine cooler bottle from the car. As Colton approached the group, the car pulled away. Colton questioned Charles Townes, the individual who was standing next to the car. Townes stated that he was a student at Clearwater High but that he did not know the occupants in the car. Townes told Colton that he had walked to school.
While Colton was speaking with Townes, the vehicle driven by McCray returned. McCray inquired as to whether Townes was "okay." Colton asked McCray and the other occupants of the vehicle why they were on campus. They gave three different answers. Thereafter, McCray made eye contact with Townes at which time Townes changed his story and told Colton that the guys in the car had given him a ride to school.
Colton then requested identification from all of the individuals in the car. McCray was the only individual able to produce identification. A check for outstanding warrants on the individuals revealed an outstanding warrant for one of the occupants of the car. When Colton attempted to arrest this individual, he punched Colton and fled.
Colton advised the suspects that they were under arrest for trespassing on school grounds and possession of alcohol by a person under the age of twenty-one. He further advised them that they would be released on notices to appear as long as there were no complications to the arrest. When Colton searched McCray, he found cocaine inside his hat. McCray resisted arrest, and it required three officers to subdue him.
Florida Rule of Criminal Procedure 3.125 provides a procedure whereby an officer may issue a notice to appear in lieu of an arrest in misdemeanor and ordinance violation cases.
The trial court found that the stop was proper and that there was probable cause to believe the individuals were committing a trespass. The court, however, stated that McCray was not arrested because Colton issued a citation. The court stated that if Colton had arrested McCray, then it would have been proper to conduct a search incident to the arrest. The court, however, determined that McCray was not arrested because he was not taken into custody. Accordingly, the trial court granted the motion to suppress.
McCray argues that he was released on a notice to appear. There is nothing in the record to indicate that McCray was released on a notice to appear. Regardless, this court, in State v. Boulia, 522 So.2d 528, 530 (Fla. 2d DCA 1988), held that instructing a defendant that he may be released on a notice to appear does not negate the officer's authority to conduct a search incident to an arrest. The record supports that the officers placed McCray under arrest, put him in a patrol car, and read him his Miranda rights. In Boulia, this court stated that once an officer has probable cause to arrest the defendant, the officer can conduct a search of that person as incident to the arrest prior to the arrest actually being effected. Boulia, 522 So.2d at 529. Accordingly, the search of McCray's hat was permissible as a search incident to an arrest. Boulia, 522 So.2d at 530. We, therefore, reverse the trial court's order suppressing the seized cocaine and remand for further trial proceedings.
RYDER, A.C.J., and BLUE, J., concur.
PARKER, J., concurs specially.
I concur with the majority's result; however, I would reverse based upon the legal insufficiency of the defendant's motion and the trial court's failure to comply with Florida Rule of Criminal Procedure 3.190. Rule 3.190 which provides the method by which a motion to suppress evidence and an admission or confession should proceed in the trial court, states:
(h) Motion to Suppress Evidence in Unlawful Search.
. . . .
(2) Contents of Motion. Every motion to suppress evidence shall clearly state the particular evidence sought to be suppressed, the reasons for suppression and a general statement of the facts on which the motion is based.
(3) Hearing. Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, the defendant shall present evidence supporting his position and the State may offer rebuttal evidence.
. . . .
(i) Motion to Suppress a Confession or Admission Illegally Obtained.
(1) Grounds. Upon motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant.
. . . .
(3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.
I conclude that McCray's motion to suppress is legally insufficient under the rule. The first and last paragraph of McCray's motion state:
THE DEFENDANT, CARLTON L. McCRAY, by and through his undersigned attorney pursuant to Florida Rules of Criminal Procedure 3.190 and hereby moves this Honorable Court for an Order suppressing all the evidence obtained with regard to Defendant's arrest in the above captioned matters and as grounds therefore would show:
. . . .
WHEREFORE, Defendant moves this Honorable Court for an Order suppressing any and all evidence, statements, contraband, pills and drugs pertaining to Defendant's arrest which were obtained at the time of the illegal arrest.
The facts set out in the motion neither allege the seizure of any evidence nor that the officer obtained any admission or confession. Even though the burden is on the state to point out the legal insufficiency of the motion, I believe the ultimate burden still rests with the trial court to determine whether the motion is legally sufficient. See State v. Jackson, 513 So.2d 797 (Fla. 4th DCA 1987). I conclude that this record does not support that the trial court ever determined the legal sufficiency of the motion.
I am aware that the Fourth District, in State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975), which involved an order granting a motion to suppress evidence, concluded that an appellate court will not reverse a trial judge on a matter which is not presented to the trial judge for a ruling. Hinton, 305 So.2d at 808 n. 2. Hinton cites Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972) as support for that position. In Dickenson, the defendant filed a motion to suppress evidence, continued the hearing, and then alleged on appeal that the rule required a hearing on the defendant's motions before trial. Dickenson concluded that an appellate court will not reverse a trial judge upon a matter which is not presented to him for ruling unless a party has shown that fundamental error occurred. While I agree with Dickenson, I disagree with the footnote in Hinton because Florida Rule of Criminal Procedure 3.190(h)(3) contains the word "shall," a mandatory requirement upon the trial court to determine the legal sufficiency of the motion. While this court can find harmless error when the trial court does not determine the legal sufficiency of a motion to suppress evidence if that motion in fact is legally sufficient, I do not believe that the reverse is true. If the trial court does not determine the legal sufficiency of a motion filed pursuant to rule 3.190(h) and this court determines that the motion is legally insufficient, I conclude that the mandatory language of rule 3.190 requires reversal.
Although Jackson further provides that the trial court's order shall state with particularity the specific evidence that is to be suppressed, I find no support for that in the rule. The order in this case states: "Ordered and adjudged that Defendant's Motion to Suppress which was heard . . . be and the same is hereby granted." Although it is obviously a better practice to identify specifically the evidence that is to be suppressed in the order, the rule does not require it. This case points out why a specific order from the trial court would be helpful. McCray's motion sought to suppress all evidence and all statements obtained in this arrest. The trial court's order states, as to McCray's motion, "the same is hereby granted." Because the state and McCray argue only the cocaine seizure, am I to conclude that they both conceded that the beer and wine containers and any confession by McCray were inadmissible and rightly suppressed? I cannot determine from this motion, order, or record the answer to this question; therefore, I am precluded from making a harmless error analysis. This is precisely the reason I conclude that McCray and the trial court must comply with rule 3.190.