STATE OF FLORIDA, APPELLANT,
v.
LAMAR CALLOWAY, APPELLEE
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The State of Florida appeals a trial court's order granting a motion to suppress cocaine seized from Lamar Calloway during an arrest for violating a municipal loitering ordinance. The appellate court reverses, holding that evidence seized incident to an arrest made in good faith reliance on a presumptively valid ordinance is not subject to suppression even if the ordinance is later declared unconstitutional.
Evidence seized pursuant to a search incident to an arrest for violating an ordinance is not subject to suppression merely because the ordinance is later declared unconstitutional, provided the arrest was made in good faith reliance on the ordinance as a presumptively valid law.
[1] An order merely declaring an ordinance unconstitutional is not an appealable order.
[2] Evidence seized pursuant to a search incident to an arrest made in good faith reliance on a presumptively valid ordinance is not subject to suppression, even if the ordin…
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Join FLexlaw to unlock all legal intelligence“The fact that an ordinance is subsequently determined to be unconstitutional does not undermine the lawfulness of a,n arrest which was made in good faith reliance on the ordinance.”
States the core holding that good faith reliance on a presumptively valid ordinance protects the arrest even if the ordinance is later found unconstitutional.
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Join FLexlaw to unlock all legal intelligenceCalloway was arrested for allegedly violating a Melbourne municipal ordinance prohibiting loitering for the purpose of engaging in drug-related activi…
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PER CURIAM.
The state appeals two orders entered by the trial court. First, the state appeals the trial court’s order declaring unconstitutional a Melbourne municipal ordinance that prohibits loitering for the purpose of engaging in drug-related activity. This order is not an appealable order because the order merely declares the ordinance unconstitutional. See Fla.R.App.P. 9.140(c).
The state also appeals the trial court’s order granting appellee’s motion to suppress cocaine seized from his person pursuant to a warrantless search made incident to his arrest for allegedly violating the ordinance. This order is appealable under rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure. See State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991).
The trial court granted appellee’s motion to suppress, ruling that the arrest of defendant was illegal because the ordinance is unconstitutional. This ruling is erroneous. Even if the subject ordinance is unconstitutional, a matter which we need not decide in this appeal,1 the seized evi dence is not subject to suppression. The fact that an ordinance is subsequently determined to be unconstitutional does not undermine the lawfulness of a,n arrest which was made in good faith reliance on the ordinance. Therefore, evidence seized pursuant to a search of an individual incident to an arrest for violating 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 any controlling precedent, the police officer acted in good faith by relying on a presumptively valid ordinance.
We note, paranthetically, that the crucial issue on the motion to suppress was whether the arresting officer had probable cause to believe that appellee’s conduct at the time of his arrest violated the loitering ordinance. DeFillippo, 99 S.Ct. at 2631-2632. Unfortunately, the trial court, at the insistence of defense counsel, decided the broader constitutional issue and not the probable cause issue. On remand, this latter issue should be addressed by the trial court after a full evidentiary hearing.
Accordingly, we reverse the trial court’s suppression order and remand this cause to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
W. SHARP, GRIFFIN and DIAMANTIS, JJ., concur. . Compare Wyche v. State, 573 So. 2d 953 (Fla. 2d DCA 1991) (municipal ordinance prohibiting loitering for the purpose of prostitution is facially constitutional) with Johnson v. Carson, 569 F.Supp. 974 (M.D.Fla.1983) (municipal ordinance prohibiting loitering for the purpose of prostitution is facially unconstitutional). See also Holliday v. Tampa, 586 So. 2d 64 (Fla. 2d DCA 1991) (following Wyche and upholding as facially constitutional a municipal ordinance prohibiting loitering for the purpose of selling drugs and certifying the constitutionality of that ordinance to the supreme court).
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Nunn v. State, 121 So. 3d 566 (Fla. 4th DCA 2013)…argate and Coral Springs when the controlled call was made. We agree with the State. Just as an arrest, made in good faith reliance upon the law, is not deemed unlawful when a law is subsequently determined to be unconstitutional, State v. Calloway, 589 So. 2d 326, 328 (Fla. 5th DCA 1991), the investigatory acts of an officer outside of his or her jurisdiction should not be deemed unlawful if during the investigation the officer has a good faith belief that the crime occurred within his or her jurisdiction.…
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State v. Lapar Donta Conley, 98 So. 3d 108 (Fla. 2d DCA 2012)…top in question in this case. See Thomas v. State, 614 So. 2d 468, 471 (Fla.1993) (holding that evidence obtained in reliance on an ordinance should not be suppressed where the ordinance is subsequently declared unconstitutional); State v. Calloway, 589 So. 2d 326, 328 (Fla. 5th DCA 1991) (“The fact that an ordinance is subsequently determined to be unconstitutional does not undermine the lawfulness of an arrest which was made in good faith reliance on the ordinance.”). [*112] In Conley’s case, the officer ac…
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State v. Peloquin, 678 So. 2d 1303 (Fla. 2d DCA 1995)…ant to section 316.193(6)(d), the issue of vehicle impoundment does not arise until after conviction, and as in the case at hand, a pretrial order declaring a statute or ordinance unconstitutional, without more, is not appealable. State v. Calloway, 589 So. 2d 326 (Fla. 5th DCA 1991), review denied, 599 So. 2d 654 (Fla.1992). The orders that we have reviewed deal with postconviction im-poundment and do not bear upon the trial of the cases; hence, they do not meet the standard for review by certiorari jurisdic…
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 (11 total)
- Michigan v. DeFILLIPPO, 443 U.S. 31 (U.S. 1979)
- Muehleman v. State, 503 So. 2d 310 (Fla. 1987)
- State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991)
- Renetha C. Wyche v. State, 573 So. 2d 953 (Fla. 2d DCA 1991)
- State v. Smith, 584 So. 2d 145 (Fla. 2d DCA 1991)
- Reuben Lavern Williams v. State, 491 So. 2d 611 (Fla. 1st DCA 1986)
- State v. Joyce, 529 So. 2d 791 (Fla. 3d DCA 1988)
- McCRIMMON v. State, 505 So. 2d 13 (Fla. 5th DCA 1987)
- Vista Bank v. Schonsheck, 505 So. 2d 13 (Fla. 5th DCA 1987)
- Johnson v. Carson, 569 F. Supp. 974 (M.D. Fla. 1983)