THE STATE OF FLORIDA, APPELLANT,
v.
JAMES JOYCE, APPELLEE
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Florida reversed a trial court's suppression order in a drug case, holding that evidence seized incident to an arrest under a presumptively valid municipal ordinance remains admissible even when the State later elects to prosecute under a different state statute with different elements.
Evidence seized incident to an arrest under a presumptively valid municipal ordinance is admissible regardless of whether the State later prosecutes under a different state statute. The validity of the search is not measured by the statutory elements ultimately chosen for prosecution, but rather by whether probable cause existed under the ordinance that authorized the initial arrest.
[1] An arrest is valid if based on probable cause to believe a violation of a presumptively constitutional municipal ordinance has occurred, even if the subsequent prosecutio…
[2] Probable cause for an arrest is determined by the facts known to the arresting officers at the time of the arrest, not by the charging decision made by the prosecutor.
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Join FLexlaw to unlock all legal intelligence“We disagree with the defendant's contention that the validity of the search must be measured by statutory elements. The initial arrest was based on the violation of a presumptively constitutional municipal ordinance as is evidenced by an arrest affidavit prepared by the officers near the time of the arrest.”
Establishes that the court will not measure search validity by the statute ultimately chosen for prosecution, but by the ordinance that provided probable cause for the arrest.
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Join FLexlaw to unlock all legal intelligenceThree Miami police officers observed the defendant standing on a sidewalk drinking from a beer can in violation of a city ordinance prohibiting public…
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FERGUSON, Judge.
We reverse an order granting a motion to suppress and remand with instructions to reinstate the information.
Three City of Miami police officers, in marked vehicles, observed the defendant standing on a sidewalk drinking from a beer can. They drove up to the defendant intending to arrest him for a violation of a city ordinance which makes drinking in public a form of disorderly conduct. The ordinance provides: Any person in the city shall be deemed guilty of disorderly conduct who:
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11) is found consuming alcoholic beverages on the public streets or vacant lots or in places solely licensed to vend alcoholic beverages for consumption off the premises.
City of Miami, Fla., Code § 37-17(11) (1967).
Prior to the arrest two of the officers observed the defendant discard a yellow bank bag. After the arrest the bag was picked up, examined and found to contain money and illegal drugs. A search of the defendant revealed more controlled substances.
An information subsequently filed charged the defendant with three controlled substance violations and disorderly intoxication under section 856.011, Florida Statutes (1987). A conviction for violation of the disorderly intoxication statute, unlike the city ordinance, requires that the accused create a public disturbance in addition to drinking an alcoholic beverage in a public place.
One of the defendant’s successful arguments before the trial court was that since the state had elected to proceed under the statute rather than the ordinance, the legality of the initial arrest must be tested by the statute. Therefore, as the argument concluded, because the defendant was peacefully consuming his beer, even though on a public street, there was no probable cause for an arrest.
We disagree with the defendant’s contention that the validity of the search must be measured by statutory elements. The initial arrest was based on the violation of a presumptively constitutional1 municipal ordinance as is evidenced by an arrest affidavit prepared by the officers near the time of the arrest. Under the ordinance there was probable cause for the arrest. It is irrelevant, for probable cause purposes, that the assistant state attorney elected, subsequently, to prosecute under a state statute rather than the ordinance. See Muehleman v. State, 503 So. 2d 310 (Fla. 1987) (citing Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)) (evidence seized incident to an arrest under presumptively valid ordinance is admissible), cert. denied, — U.S. -, 108 S.Ct. 39, 98 L.Ed.2d 170 (1987); Williams v. State, 491 So. 2d 611 (Fla. 1st DCA 1986) (same); see also McCrimmon v. State, 505 So. 2d 13 (Fla. 5th DCA 1987). There was no basis for suppressing the evidence obtained.
We need not reach the remaining arguments raised by the State.
Reversed and remanded.
. The trial court did not address the defendant’s attack on the constitutionality of the ordinance. For procedural reasons the challenge is not renewed in this appeal.
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State v. Smith, 584 So. 2d 145 (Fla. 2d DCA 1991)…ded by the noncriminal state sanction. Although we agree that the local ordinance did not, as a matter of law, authorize an arrest in this case, our decision does not require the suppression of the evidence. See DeFillippo. See also State v. Joyce, 529 So. 2d 791 (Fla. 3d DCA 1988); McCrimmon v. State, 505 So. 2d 13 (Fla. 5th DCA 1987); Williams v. State, 491 So. 2d 611 (Fla. 1st DCA 1986). This ordinance had been duly promulgated and was presumptively valid at the time of this arrest. As the United States S…
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State v. Calloway, 589 So. 2d 326 (Fla. 5th DCA 1991)…lating the ordinance is not subject to suppression. Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). See also Muehleman v. State, 503 So. 2d 310 (Fla.1987); State v. Smith, 584 So. 2d 145 (Fla. 2d DCA 1991); State v. Joyce, 529 So. 2d 791 (Fla. 3d DCA 1988); McCrimmon v. State, 505 So. 2d 13 (Fla. 5th DCA 1987); Williams v. State, 491 So. 2d 611 (Fla. 1st DCA 1986). Because the Melbourne loitering ordinance had not been declared unconstitutional at the time of defendant’s arrest by a…
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Milhouse v. State, 673 So. 2d 911 (Fla. 2d DCA 1996)…. The officer had probable cause to arrest the appellant for violating the ordinance against consumption of alcohol on a public street; the appellant was-drinking from a long-neck Budweiser bottle while crossing a public street. See State v. Joyce, 529 So. 2d 791 (Fla. 3d DCA 1988). When the officer searched him incident to the arrest, he found a vial of cocaine in one of the appellant’s pockets. We therefore affirm the order denying the appellant’s motion to suppress. Although we affirm the judgment, we mu…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Michigan v. DeFILLIPPO, 443 U.S. 31 (U.S. 1979)
- Muehleman v. State, 503 So. 2d 310 (Fla. 1987)
- Reuben Lavern Williams v. State, 491 So. 2d 611 (Fla. 1st DCA 1986)
- McCRIMMON v. State, 505 So. 2d 13 (Fla. 5th DCA 1987)
- Vista Bank v. Schonsheck, 505 So. 2d 13 (Fla. 5th DCA 1987)