Opinion
No. 98-2839.
Opinion filed September 10, 1999.
Appeal from the Circuit Court for Orange County, Jay P. Cohen, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and Maximillian J. Changus, Assistant Attorney General, Daytona Beach, for Appellant.
Joe Harrington of the Law Office of Mark E. NeJame, P.A., Orlando, for Appellee.
This is an appeal from an order granting a motion to suppress evidence in a drug case.
The officer observed an automobile being driven in an erratic fashion. It was on an empty lot next to a residence and across the street from a bar. The lot was used for parking by various persons, including bar patrons, and apparently was open to public use. The officer, suspicious that the automobile might have been stolen, checked and determined it was not, but while checking the car detected the smell of marijuana emanating from a slightly open window. Peering further into the car the officer saw a small handgun. Without obtaining a search warrant the officer broke into the car and seized the marijuana and some cocaine.
The question on appeal is whether the officers had probable cause to search the automobile and whether exigent circumstances existed to allow the search and seizure to proceed without a search warrant.
As to the first question, probable cause to search for illegal drugs, that was established when the officer smelled marijuana coming from the interior of the automobile. Although much consideration was given below to the question as to whether the car had been stolen, that was not the proper focus. Police have a duty to seize contraband they come across.
The remaining question is whether the police were obligated to go for a search warrant before they searched the car and seized the evidence. Warrantless searches are at least suspect and often unreasonable and violative of constitutional requirements. When no other course of action is available, however, a warrantless search and seizure is permissible. Movable vehicles are not the exclusive place searched without a warrant but they make up the greatest number, in fact and in case law. See Carroll v. United States, 267 U.S. 132 (1925); State v. Waterman, 638 So.2d 1032 (Fla. 2d DCA), rev. den., 649 So.2d 236 (Fla. 1994); State v. Hicks, 579 So.2d 836 (Fla. 1st DCA 1991); State v. Starkey, 559 So.2d 335 (Fla. 1st DCA 1990); State v. Barcenas, 559 So.2d 70 (Fla. 3d DCA 1989), rev. den., 569 So.2d 1278 (Fla. 1990); State v. Wells, 516 So.2d 74 (Fla. 5th DCA 1987); State v. Coleman, 502 So.2d 13 (Fla. 4th DCA 1986). See also Adoue v. State, 408 So.2d 567 (Fla. 1981). It is not the convenience of the police which is being catered to, nor is it an aid to more expeditious law enforcement which is being achieved. Rather, it is a recognition that occasionally circumstances render it virtually impossible, or certainly unreasonable, to require police to take excessive measures to accomplish the inevitable. For example, as here, the policeman knew there was an illegal drug in the car because he smelled it. His duty at that time was to take the drug. He could have had the car towed, impounded and secured while he got a search warrant and then broken into the car and seized the contraband. Short of that operation, or one similar, he could not have performed his duty given the movability of the car. Case law has recognized the practicalities and permitted this warrantless search. Carroll; Waterman; Hicks; Starkey; Barcenas; Wells; Coleman.
REVERSED and REMANDED.
COBB, J., concurs specially with opinion.
SHARP, W., J., dissents with opinion.
As both the majority opinion and dissent agree, the trial judge erroneously focused on the irrelevant issue of whether the car driven by the defendant had been stolen. Upon ascertaining that it had not, and that Williams had legal custody of the car at the time of the search, the trial judge immediately announced that he was granting the motion to suppress on that basis.
Previously during the suppression hearing, however, the trial judge made clear his belief that the Fourth Amendment precludes search of a parked vehicle even though the odor of contraband emanated from it. In other words, he accepted the factual scenario propounded by the state, but granted the motion to suppress solely on his legal misconceptions. Therefore, I concur with the opinion of Judge Dauksch.
I respectfully dissent because the record is insufficient to conclude the trial court erred in this case by granting the defendant's motion to suppress.
There were two possible reasons for granting the motion. First, the trial court could have concluded that the odor of contraband exuding from a vehicle does not give a police officer probable cause to search it. That is wrong. State v. Wynn, 623 So.2d 848 (Fla. 2d DCA 1993); State v. T.T., 594 So.2d 839, 480 (Fla. 5th DCA 1992); State v. Bowden, 538 So.2d 83 (Fla. 2d DCA 1989).
Second, the trial judge could have found, as a matter of fact, that the police officer did not smell the contraband until the search had commenced, despite his testimony to the contrary. A trial court does not have to accept the testimony of any witness as truthful, even if unrebutted. Since no finding was made by the trial court on this point, I believe a proper course of action would be to remand this case to the trial court for findings on this issue. See McNamara v. State, 357 So.2d 410 (Fla. 1978); Woodbury v. State, 730 So.2d 354 (Fla. 5th DCA 1999).
Dept. of Highway Safety v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995).
A trial court's rulings come to this court with the presumption of correctness and should be affirmed if there is a valid reason to do so. Carraway v. Armour, 156 So.2d 494 (Fla. 1963); Knox v. State, 689 So.2d 1224 (Fla. 5th DCA 1997). We should certainly not presume incorrectness as it appears to me we have done in this case.