STATE OF FLORIDA, APPELLANT,
v.
TIMOTHY AVERETTE, A/K/A TIMOTHY CROFFORD AVERETT, APPELLEE
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The court held that a search of a vehicle's passenger compartment is permissible as a contemporaneous incident of a lawful custodial arrest of the vehicle's occupant.
[1] A lawful custodial arrest of an automobile's occupant authorizes a police officer to search the passenger compartment of that automobile as a contemporaneous incident of…
[2] A search of a vehicle's passenger compartment is permissible under the search incident to arrest doctrine when the arrestee was an occupant of the vehicle.
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Join FLexlaw to unlock all legal intelligenceAn officer lawfully stopped a vehicle and arrested the driver on an outstanding warrant. During a search of the vehicle's passenger compartment incide…
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FRANK, Judge.
Timothy Averette was charged with possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes. The trial court granted Averette’s motion to suppress the firearm that gave rise to the charges against him. The state appealed and we reverse.
The record reveals that Averette’s car was stopped by a police officer who knew, from a prior investigation, of the existence of an outstanding warrant for Averette’s arrest stemming from an animal control ordinance violation. After the stop the officer immediately confirmed the existence of the warrant and arrested Averette. We perceive no constitutional infirmity in either the stop or the arrest.
Prior to transporting Averette to the police station, the officer, who also knew that Averette had previously been in possession of a firearm, began searching Averette’s car. Immediately upon leaning into the driver’s side of the car he observed the butt of a handgun protruding from under the driver’s seat. The officer seized the gun, and Averette subsequently moved to suppress the evidence, contending that a war-rantless search was conducted without probable cause. The trial judge granted Averette’s motion on the basis that there was no necessity for an inventory search of the vehicle.
As we have noted above, the initial stop and arrest were valid. The subsequent search of the automobile was also constitutional upon the authority of New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981): “[WJhen a policeman has' made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”
Accordingly, because there appears to have been no proper foundation for suppression of the gun seized from Averette’s car, we reverse the trial court’s order granting his motion to suppress and remand this case for further proceedings.
SCHEB, A.C.J., and SCHOONOVER, J., concur.
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Citator
Cited By
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State v. Waller, 918 So. 2d 363 (Fla. 4th DCA 2005)…Waller was lawfully arrested for an ordinance violation. Arrest for an ordinance violation, even though it is neither a felony nor misdemeanor arrest, can be the basis for a lawful search of a vehicle incident to that arrest. See State v. Averette, 473 So. 2d 3, 4 (Fla. 2d DCA 1985)(arrest on outstanding warrant for animal control ordinance violation permitted search of vehicle). Waller was in his vehicle at the [*368] time of the violation, was asked to exit the vehicle by the detectives (although the fac…
Authorities Cited
- New York v. Belton, 453 U.S. 454 (U.S. 1981)