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State v. Klein

District Court of Appeal of Florida, Fourth District
Dec 9, 1998
736 So. 2d 9 (Fla. Dist. Ct. App. 1998)

Summary

holding that state could not assert new theory to justify traffic stop for first time on appeal

Summary of this case from Hilton v. State

Opinion

No. 98-1637.

Opinion filed December 9, 1998.

Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. No. 97-15978 CF10B.

Robert A. Butterworth, Attorney General, Tallahassee, and Gentry Denise Benjamin, Assistant Attorney General, West Palm Beach, for appellant.

Morton Rivkind of Morton Rivkind, P.A., Hialeah, for appellee.


The state appeals an order granting a motion to suppress drugs found in an automobile. We affirm.

The appellee was pulled over for speeding, given field sobriety tests which he passed, and was not issued a citation. It was discovered, though, that his passenger had an outstanding warrant for arrest. After there was no longer any reason to detain the appellee driver, the passenger was arrested, and the officer found little plastic bags, usually used to carry drugs, in the passenger's pockets. He then searched the car, but found nothing. The officer then called for a drug dog, and ultimately drugs were found in the passenger section of the car.

The appellee driver moved to suppress on the ground that the officer did not have founded suspicion to detain him longer than the time it took to issue a citation. The trial court granted the motion to suppress because once the appellee passed the sobriety tests, there was no longer any reason why he and his car should have been detained.

The state argued in the trial court only that there was founded suspicion to detain appellee until the car was searched. The trial court correctly rejected that argument. B.T. v. State, 702 So.2d 248 (Fla. 4th DCA 1997), and cases cited therein. On appeal the state argues for the first time that the search of the passenger part of the vehicle, in which drugs were found, was within the scope of a search incident to the arrest of the passenger and was, therefore, lawful. New York v. Belton, 453 U.S. 454 (1981). We do not reach the merits of this argument because it was not raised below.

Under section 924.051, Florida Statutes (1997), a criminal appeal may not be taken unless an error has been properly preserved or is fundamental. "Preserved" means that the legal argument presented to the trial court was "sufficiently precise" to fairly apprise the trial court of the argument being made on appeal. § 924.051(1)(b). This error was not preserved. Nor was it fundamental error. We must therefore affirm.

STONE, C.J., and GUNTHER, J., concur.


Summaries of

State v. Klein

District Court of Appeal of Florida, Fourth District
Dec 9, 1998
736 So. 2d 9 (Fla. Dist. Ct. App. 1998)

holding that state could not assert new theory to justify traffic stop for first time on appeal

Summary of this case from Hilton v. State

holding that state could not assert new theory to justify traffic stop for first time on appeal

Summary of this case from Hilton v. State

holding that state failed to preserve claim that search was within the scope of lawful search incident to arrest of passenger by not making that argument to the trial court

Summary of this case from Bain v. State

declining to address State's argument that the search of the passenger part of the vehicle was lawful because it was within the scope of a search incident to arrest where it was not raised below, was not preserved, and did not constitute fundamental error

Summary of this case from State v. Fernandez
Case details for

State v. Klein

Case Details

Full title:STATE OF FLORIDA, Appellant, v. STEVEN KLEIN, Appellee

Court:District Court of Appeal of Florida, Fourth District

Date published: Dec 9, 1998

Citations

736 So. 2d 9 (Fla. Dist. Ct. App. 1998)

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