PHILLIP JONES

v.

STATE OF FLORIDA

COHEN, J.

Phillip Jones petitions this Court for a writ of habeas corpus, claiming his appellate counsel rendered ineffective assistance. We grant Jones’s petition, reverse the trial court’s denial of Jones’s motion to suppress, and remand.

The facts of this case and analysis of the relevant legal issues are set forth in Judge Lambert’s opinion in Jones v. State, 279 So. 3d 342 (Fla. 5th DCA 2019). In short, Jones failed to completely stop before turning right at a red light and fled when law enforcement attempted to pull him over. Id. at 344–45. Law enforcement subsequently located Jones’s vehicle and searched it without a warrant. Id. at 345. The trial court denied Jones’s motion to suppress evidence obtained during the search, finding that the search was conducted incident to a lawful arrest, or alternatively, was permissible pursuant to the automobile exception to the Fourth Amendment protection against unreasonable searches and seizures. Id. at 347.

On appeal, this Court rejected the trial court’s finding that the search was conducted incident to a lawful arrest, holding that “the undisputed testimony showed that Jones was in police custody and outside reaching distance of the passenger compartment of his vehicle at the time of the search.” Id. at 347–48 (citing Arizona v. Gant, 556 U.S. 332 (2009)). However, this Court was compelled to affirm based on the trial court’s alternative ground of denial, the automobile exception, because Jones’s brief contained no argument related to that finding, thus abandoning the issue. Id. at 348–49.

In his petition for writ of habeas corpus, Jones alleges that his appellate counsel was ineffective for failing to argue that the automobile exception did not apply and that had counsel made such argument, he would have succeeded on appeal. We agree.

Pursuant to the automobile exception, law enforcement may conduct a warrantless search of a vehicle based upon probable cause to believe that the vehicle contains evidence of criminal activity. Carroll v. United States, 267 U.S. 132, 149 (1925). Jones relies on Maryland v. Dyson, 527 U.S. 465, 467 (1999), arguing that a warrantless automobile search is permissible only if the surrounding facts and circumstances establish probable cause to believe that the vehicle contains contraband.

In State v. Nowak, 1 So. 3d 215, 219 (Fla. 5th DCA 2008), this Court explained that “as long as law enforcement [has] a practical, common-sense basis to conclude that [the defendant’s] car likely contain[s] additional evidence of [the] alleged criminal conduct, they [have] probable cause to search the car.” (citing Polk v. Williams, 565 So. 2 2d 1387 (Fla. 5th DCA 1990)). Here, prior to searching Jones’s vehicle, law enforcement observed that Jones failed to stop before turning right on red and that he fled from their attempted stop. Those offenses were insufficient to create probable cause to believe that Jones’s vehicle contained additional evidence of the alleged crimes because the offenses neither involved nor generated physical evidence. State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) (upholding order granting motion to suppress evidence obtained in warrantless search where law enforcement witnessed defendant commit traffic violations and flee; “the officer could not reasonably have believed he would find evidence of [the defendant’s] crime of fleeing and eluding”); see Brown v. State, 24 So. 3d 671, 681 (Fla. 5th DCA 2009) (“[W]hen the offense of arrest of an occupant of a vehicle is, by its nature, for a crime that might yield physical evidence, then as an incident to that arrest, police may search the passenger compartment of the vehicle, including containers, to gather evidence, irrespective of whether the arrestee has access to the vehicle at the time of the search.”).

The trial court erred in denying Jones’s motion to suppress, and Jones’s appellate counsel was ineffective in failing to argue that the automobile exception did not apply. Had counsel raised this issue on appeal, this Court would have been constrained to reverse. Accordingly, we grant Jones’s petition. Because a new appeal would be redundant, we reverse. See Challis v. State, 157 So. 3d 393, 397 (Fla. 2d DCA 2015).

PETITION GRANTED; REVERSED.

EVANDER, C.J., and ORFINGER J., concur. 3