STATE OF FLORIDA, APPELLANT,
v.
JAMES L. FUTCH, APPELLEE
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The State appealed a suppression order regarding methamphetamine found in a motel room. The court reversed the suppression of methamphetamine found on a mirror in plain view, holding that chemical testing was not required to establish the contraband's immediately apparent incriminating nature, but affirmed the suppression of evidence found during a warrantless search of the room after arrest.
The court held that methamphetamine on the mirror should not have been suppressed because its incriminating nature was immediately apparent based on the officer's observation without requiring chemical testing. However, the warrantless search of the motel room after Futch's arrest outside the room was improper because a search incident to arrest is limited to the area within the suspect's immediate control, and no exigent circumstances were present to justify the warrantless search.
[1] An item is immediately apparent for plain view seizure purposes if the facts available to the officer warrant a person of reasonable caution to believe the item may be co…
[2] A chemical test is not required to establish that the incriminating nature of a substance is immediately apparent for plain view seizure.
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Establishes the standard for immediately apparent incriminating nature under plain view doctrine, rejecting the requirement for chemical confirmation
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Join FLexlaw to unlock all legal intelligencePolice received a tip that a wanted sexual predator was in Futch's motel room. Detectives located Futch in the lobby, and he consensually agreed to re…
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WHATLEY, Judge.
The State appeals an order suppressing the methamphetamine found pursuant to a warrantless search of James L. Futch’s motel room. We affirm in part and reverse in part.
A confidential informant advised police that the person in Futch’s motel room was a wanted sexual predator.1 Police established surveillance of the room. After observing the room for a while, detectives went to the lobby of the motel where they located Futch. Futch agreed to go back to his room to talk with the detectives.2 While in the room, police spoke with Futch and ran an identification check. During this time, an officer noticed a mirror that had a white, powdery substance on its surface. Based on his training and experience, the officer believed the powder was contraband. An initial test produced inconclusive results, but a second showed the presence of methamphetamine. Futch was placed under arrest outside the motel room. Thereafter, police sent a K-9 unit inside the room, which detected the presence of an amount of methamphetamine sufficient to support a charge of trafficking.
The trial court concluded that the seizure of the mirror was improper and issued an order suppressing all of the methamphetamine found in the room. It found that the methamphetamine on the mirror was not immediately apparent because it had to be tested twice. The trial court stated, “[Y]ou can’t have probable cause until you do a presumptive test.” We conclude that the trial court erred in suppressing the methamphetamine found on the mirror. Police may seize an item in plain view if: (1) the officer is in a place where he has a legitimate right to be; (2) the incriminating nature of the evidence is immediately apparent; and (3) the officer has a lawful right of access to the object. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Black v. State, 630 So. 2d 609 (Fla. 1st DCA 1993). Since the detectives’ entry into the room was consensual and they had a lawful right of access to the mirror, the issue is whether the methamphetamine was immediately apparent.
In determining whether the incriminating nature of the evidence is immediately apparent, police are not required to know that an item is contraband. See Black, 630 So. 2d at 613.
It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief” (citation omitted) that certain items may be contraband ...; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.
Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).
Contrary to the trial court’s finding, a chemical test on the substance showing that it was illegal contraband was not required to establish that it was immediately apparent. We conclude that the incriminating nature of the methamphetamine was immediately apparent upon the officer’s observation of the white, powdery substance on the mirror. See Roberts v. State, 566 So. 2d 848 (Fla. 5th DCA 1990) (holding that the trial court properly denied a motion to suppress where police observed a mirror with white powder in plain view). Therefore, the methamphetamine found on the mirror should not have been suppressed.
However, the subsequent warrant-less search of Futch’s motel room after his arrest was improper. A warrantless search incident to a lawful arrest is limited to the area within the immediate control of the defendant. See Gay v. State, 607 So. 2d 454 (Fla. 1st DCA 1992); Brown v. State, 377 So. 2d 819 (Fla. 1st DCA 1979). Here, Futeh was arrested outside his room. The State does not argue that there were any exigent circumstances that would allow a warrantless search of Futch’s entire motel room. Law enforcement could have obtained a warrant after the arrest. Therefore,, any evidence found pursuant to the search of Futch’s motel room after his arrest was properly suppressed.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
PARKER, C.J., and QUINCE, J., concur. . This information was later determined to be false.
. Futch does not contend that the detectives' entry into his room was not consensual.
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Murphy v. State, 898 So. 2d 1031 (Fla. 5th DCA 2005)…complaints. . State v. Carr, 549 So. 2d 701 (Fla. 4th DCA 1989). . See United States v. Rivera, 825 F. 2d 152 (7th Cir.1987); Turner v. State, 645 So. 2d 444 (Fla.1994); Gilbert v. State, 789 So. 2d 426 (Fla. 4th DCA 2001). . See State v. Futch, 715 So. 2d 992 (Fla. 2d DCA 1998); Younger v. State, 433 So. 2d 636 (Fla. 5th DCA 1983). . Some of the older Florida cases were decided on this basis. See State v. Carr, 549 So. 2d 701 (Fla. 4th DCA 1989); Winchell v. State, 362 So. 2d 992 (Fla. 3d DCA 1978). How…
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State v. Romerio Walker and Christina Young, 729 So. 2d 463 (Fla. 2d DCA 1999)…the warrant. Seizure of contraband in plain view, where officers have a lawful right to be, is proper if the incriminating nature of the evidence is apparent, and the officers have a lawful right of access to the object seized. See State v. Futch, 715 So. 2d 992, 993 (Fla. 2d DCA 1998). It is undisputed in the instant case that the officers who were investigating the burglary at the appellees’ residence had a lawful right to be there. It is further undisputed that the cocaine bags in question were open, in…
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Vasquez v. State, 870 So. 2d 26 (Fla. 2d DCA 2003)…to arrest may encompass arrestee’s person and area from within which he might gain possession of weapon or destructible evidence, but there is no justification for routinely searching any room other than that in which arrest occurs); State v. Futch, 715 So. 2d 992 (Fla. 2d DCA 1998) (holding warrantless search of motel room after occupant was arrested outside room for drug possession could not be justified as search incident to arrest absent other exigent circumstances). Vale recognized that there may be oth…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Texas v. Brown, 460 U.S. 730 (U.S. 1983)
- Horton v. California, 496 U.S. 128 (U.S. 1990)
- Black v. State, 630 So. 2d 609 (Fla. 1st DCA 1993)
- GAY v. State, 607 So. 2d 454 (Fla. 1st DCA 1992)
- Roberts v. State, 566 So. 2d 848 (Fla. 5th DCA 1990)
- Brown v. State, 377 So. 2d 819 (Fla. 1st DCA 1979)