Opinion
Case No. 6D23-307
03-03-2023
STATE of Florida, Appellant, v. Lisa Renee ANDRESKEWICZ, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Senior Assistant Attorney General, Tampa, for Appellant. Howard L. "Rex" Dimmig, II, Public Defender, and Caroline Joan S. Picart, Assistant Public Defender, Bartow, for Appellee.
Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Senior Assistant Attorney General, Tampa, for Appellant.
Howard L. "Rex" Dimmig, II, Public Defender, and Caroline Joan S. Picart, Assistant Public Defender, Bartow, for Appellee.
SASSO, C.J.
In this appeal, the State challenges the trial court's order suppressing evidence of drug paraphernalia seized during a traffic stop. In support, the State contends that the trial court applied the incorrect legal standard when it concluded it was not readily apparent that the tube in question was drug paraphernalia. We agree and reverse.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
BACKGROUND AND FACTS
The case arises out of a May 19, 2021 traffic stop initiated by the Collier County Sheriff's Office. One of the officers, Corporal Michael Korpolinski, approached the passenger-side door of a vehicle, where he observed Lisa Renee Andreskewicz ("Andreskewicz") with a purse in her lap. Sticking out of the purse, in open view, was a plastic tube that had burnt residue inside, which Corporal Korpolinski recognized as commonly used to smoke narcotics. He then had Andreskewicz step out of the car, where he proceeded to question her. Corporal Korpolinski next conducted a field test on the tube which tested positive for cocaine. A search of her person also yielded two containers of white substance, both of which tested positive for cocaine.
Andreskewicz does not contest the legality of the traffic stop.
On June 14, 2021, the State charged Andreskewicz with two counts of possession of a controlled substance, one count of possession of paraphernalia, and one count of introduction of contraband into a county detention facility.
Subsequently, Andreskewicz filed a motion to suppress, arguing, inter alia, that Corporal Korpolinski lacked probable cause to remove her from the vehicle, contending that the tube in question was not in open view and noting that one of the other officers said the tube "is a strange thing to smoke crack from," thereby contradicting Corporal Korpolinski's claim that he recognized the tube as paraphernalia.
At a hearing on the motion, Corporal Korpolinski testified that, as part of road patrol, he also handles narcotics investigations. He described his formal and on-the-job training regarding narcotics and testified he had been involved in many arrests involving different types of drug paraphernalia. In addition, Corporal Korpolinski testified he encounters narcotics and related paraphernalia on a daily basis. Corporal Korpolinski further testified as to his ability to identify an item as drug paraphernalia and that items such as "pop cans, hollowed-out antennas, glass smoking pipes, and brillo pads" can be considered paraphernalia when taking other factors into account.
In ruling on the motion to suppress, the trial court framed the issue as "whether or not it was readily apparent to Corporal Korpolinski, based on his training and experience, that the plastic hose sticking out of the Defendant's purse was in fact drug paraphernalia on its face before he seized it from the Defendant's purse without a warrant and conducted a field test of the item." With the issue framed in this manner, the trial court then determined it was "not readily apparent that the hose itself was drug paraphernalia without the field test of the substance and the discovery of additional narcotics" as a result of the search incident to the arrest. The trial court therefore concluded that the plastic tube and any additional evidence seized during the traffic stop must be suppressed.
ANALYSIS
The standard of review applicable to a motion to suppress requires an appellate court to defer to the trial court's factual findings but review legal conclusions de novo. See, e.g. , State v. Blaylock , 76 So. 3d 13, 14 (Fla. 4th DCA 2011).
In analyzing whether the trial court applied the correct legal standard to Andreskewicz's motion to suppress, we note that the issue emerges from application of the open view doctrine. As discussed in Ensor v. State , 403 So. 2d 349, 352 (Fla. 1981), the open view doctrine is applicable in cases, such as this, involving a "pre-intrusion" search where a law enforcement officer is standing outside an automobile looking in and observes an item that he or she has probable cause to believe is associated with criminal activity. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. Id. The officer must then either obtain a warrant or have some exception to the warrant requirement before the officer may enter the protected area and seize the contraband. Id.
Here, the precise issue presented is what degree of certainty an officer must have regarding the incriminating nature of an object in order to establish probable cause to seize the item. The trial court appeared to conclude that the officer must know the object at issue "was in fact drug paraphernalia on its face" before probable cause was established to seize the item. However, "[i]n determining whether the incriminating nature of the evidence is immediately apparent, police are not required to know that an item is contraband." State v. Walker , 729 So. 2d 463, 464 (Fla. 2d DCA 1999). "Such a determination merely requires that the facts available to the officer would lead a reasonable man of caution to believe that certain items may be contraband. That subjective belief on the part of the officer need not ultimately be proven true." Id. (internal citations omitted); see also State v. Thornton , 286 So. 3d 924, 929 (Fla. 5th DCA 2019) ("The law does not require that a law enforcement officer know with certainty that the item or substance is contraband in order for there to be probable cause that a crime is being committed in the officer's presence."); State v. Fischer , 987 So. 2d 708, 712 (Fla. 5th DCA 2008) ("In order to establish probable cause, ‘[a] police officer does not have to "know" that a certain item is contraband.’ " (quoting State v. Hafer , 773 So. 2d 1223, 1225 (Fla. 4th DCA 2000) )).
Corporal Korpolinski's unrebutted testimony established that he saw a plastic tube sticking out of Andreskewicz's purse with what appeared to be burnt residue on the end. He further testified that, based on his experience, the tube was something that could be used for smoking narcotics and could be attached to a glass smoking pipe to inhale the smoke. Given that background, the plastic tube with the residue on the end indicated to him that it was drug paraphernalia. This testimony, and the totality of the circumstances presented at the hearing, could demonstrate probable cause to seize the incriminating items without a warrant pursuant to the "automobile exception" to the warrant requirement. See Collins v. Virginia , ––– U.S. ––––, 138 S. Ct. 1663, 1669, 201 L.Ed.2d 9 (2018) (explaining automobile exception to the Fourth Amendment's search warrant requirement recognizes difference between searching a structure and searching an automobile, because a vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought). The absence of a positive field test to confirm the officer's conclusion with certainty before he seized the item was not required. Because the trial court appeared to apply a heightened standard when evaluating whether the seizure was legally justified, we therefore reverse and remand for further proceedings.
There is no indication that the trial court determined Corporal Korpolinski to be incredible.
REVERSED and REMANDED.
WOZNIAK, J., concurs.
WHITE, J., dissents, without opinion.