KENNETH WAYNE ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the impoundment and subsequent search of the appellant's truck were unlawful because he was not advised of alternatives to impoundment, rendering the discovery of the rifle illegal.
Police impounded appellant's truck after his arrest and conducted an inventory search, discovering a rifle that implicated him in a burglary. Appellan…
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DOWNEY, Judge.
After arresting appellant, Kenneth Wayne Ross, at the sheriff’s office, on a warrant for burglary, the police impounded Ross’s pick-up truck, made an inventory search and discovered a rifle, which implicated him in the burglary. When Ross was advised of the discovery of the rifle he is alleged to have said that he purchased the gun from a black man who “lived up the road.”
Appellant’s motions to suppress the rifle and the statement were denied. Thereafter, appellant entered a plea of nolo conten-dere reserving the right to appeal the denial of the aforesaid motions.
On appeal Ross contends the impoundment and search of his truck was improper and thus the motion to suppress should have been granted. We-agree. Ross was never advised of the alternatives to impoundment of the truck and, thus, the search was unlawful. Miller v. State, 403 So. 2d 1307 (Fla.1981).
Next, Ross argues that, since discovery of the rifle was the result of an unlawful search, the statement that was prompted by reference to the discovered rifle is also tainted under the rule of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). That argument might be valid but it is not available to Ross because it was not presented to the trial court.
In view of the foregoing the judgment appealed from is reversed and the cause is remanded with directions to grant the motion to suppress the rifle. Upon remand, appellant should also be allowed to renew his motion to suppress the statement so as to raise the question of the applicability of the Wong Sun rule regarding the statement.
REVERSED AND REMANDED, with directions.
ANSTEAD and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bond v. State, 431 So. 2d 343 (Fla. 2d DCA 1983)…he fact that the deputy characterized the search as an inventory search. State v. Valdes, 423 So. 2d 944 (Fla. 3d DCA 1982). Higgins v. State, 422 So. 2d 81 (Fla. 2d DCA 1982); Stevens v. State, 412 So. 2d 456 (Fla. 2d DCA 1982); and Ross v. State, 428 So. 2d 781 (Fla. 4th DCA 1983), are inapplicable here. In Higgins, the defendants were not arrested but were taken into protective custody under the Myers Act, Section 396.072, Florida Statutes (1981), and there was no probable cause to believe that the car co…
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State v. Searill Constantine Small, 483 So. 2d 783 (Fla. 3d DCA 1986)…ugh the decisions were rendered subsequent to the said amendments. See Padron v. State, 449 So. 2d 811 (Fla.1984) (search conducted March 8, 1981); Sommer v. State, 465 So. 2d 1339 (Fla. 5th DCA 1985) (search conducted June 23, 1982); Ross v. State, 428 So. 2d 781 (Fla. 4th DCA 1983) (search conducted in November, 1981). We are grateful to counsel for this needed correction.…
Authorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Sims Crane Serv., Inc. v. Am-Cal Constr. Co., 403 So. 2d 1307 (Fla. 1980)