STATE OF FLORIDA, APPELLANT,
v.
RONALD MCINTOSH, APPELLEE

Fla. 5th DCA | 2013-06-25
No. 5D11-4430
TORPY and EVANDER, JJ„ and JACOBUS, Senior Judge, concur.
116 So. 3d 582 Florida District Court of Appeal, Fifth District (2013) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Florida appeals the trial court's order suppressing evidence from a vehicle search following McIntosh's arrest for aggravated assault with a firearm. The appellate court reverses, holding that police had both probable cause to arrest McIntosh and probable cause to search his vehicle under the automobile exception, based on the victim's sworn statement that McIntosh displayed a firearm and placed her in fear.


Holding

Police had probable cause to arrest McIntosh based on the girlfriend's sworn statement that he displayed a firearm in a threatening manner and placed her in imminent fear. The warrantless search of the vehicle was reasonable under the automobile exception because probable cause existed based on the victim's statement that the firearm used in the aggravated assault was placed in the vehicle.


Headnotes

[1] Probable cause to arrest for aggravated assault with a firearm exists when a victim provides a sworn statement that the defendant threatened her with a firearm and placed…

[2] A witness's uncertainty about the precise location of a firearm within a vehicle does not negate their certainty that the firearm was placed in the vehicle.

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Key Quotes

“The girlfriend never stated that she did not see where McIntosh placed the firearm. She stated, on more than one occasion, that she saw McIntosh place the firearm in the car, but she was uncertain if the firearm was in the back seat or the trunk.”

Establishes that the trial court's finding that the girlfriend did not see where the firearm was placed was not supported by the record; she was only uncertain of its location within the vehicle.

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Facts & Procedural History

McIntosh's girlfriend called 911 reporting that her boyfriend threatened her with a firearm during a domestic dispute. Officers found them talking cal…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The State of Florida appeals an order granting Appellee, Ronald McIntosh’s, motion to suppress. McIntosh was originally arrested for aggravated assault with a firearm but was ultimately charged with possession of a firearm by a convicted felon and improper exhibition of a firearm. He filed a motion to suppress alleging the officers did not have probable cause to search his vehicle, which officers searched after his arrest and contained a firearm owned by McIntosh.

The case began when McIntosh’s girlfriend placed a call to 9-1-1 stating that her boyfriend threatened her with a firearm relating to a domestic dispute. Officers responded to the girlfriend’s residence and found McIntosh and the girlfriend talking calmly with each other. One officer initially secured McIntosh with handcuffs for officer safety, as there were allegations a firearm was used in the dispute, but did not place him under arrest at that time. In a sworn statement to the officer, the girlfriend stated that McIntosh pulled a firearm from the shelf and made a threatening statement to her that placed her in fear. After receiving the sworn statement, the officer determined he had probable cause to arrest McIntosh for aggravated assault with a firearm. The officer placed McIntosh under arrest and secured him in the police ear.

The girlfriend informed the officer that she saw McIntosh place the firearm in his car, but she was not sure if he had placed it in the back seat or the trunk. Upon receiving that information, the officer obtained McIntosh’s keys and opened the car and the trunk, ultimately finding the firearm and ammunition in the trunk. It was later determined that McIntosh was a convicted felon, which resulted in additional charges against him.

At the suppression hearing, the two officers involved with the arrest and investigation testified. There were no other witnesses. The judge granted the motion to suppress, finding that there was no proba*584ble cause for McIntosh’s arrest and, therefore, no probable cause to search his car. The court also found that the girlfriend did not see what McIntosh had done with the weapon. We disagree with the trial court’s findings and conclusions. We find that there was probable cause to arrest McIntosh for aggravated assault and, more importantly, probable cause to search his car without a warrant under the “automobile exception.” We, therefore, reverse.

There is no evidence in the record that supports the finding of the trial judge that the girlfriend did not see where McIntosh placed the firearm. The only mention of that fact is the argument made by the defense attorney. See Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995) (noting that counsel’s representations not made under oath are not evidence). The girlfriend never stated that she did not see where McIntosh placed the firearm. She stated, on more than one occasion, that she saw McIntosh place the firearm in the car, but she was uncertain if the firearm was in the back seat or the trunk. It was the location within the car that she was uncertain about, not whether the firearm was in the car. Also, the girlfriend’s sworn statement established probable cause to arrest McIntosh for aggravated assault with a firearm because McIntosh displayed the firearm in a threatening manner, threatened his girlfriend, and placed her in imminent fear.

McIntosh cites Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), as a reason to suppress the evidence; however, Gant is not applicable because it concerns a search incident to arrest. After Gant, warrantless searches of automobiles are still reasonable if supported by probable cause when the offense is a crime that might yield physical evidence. See Brown v. State, 24 So.3d 671, 681 (Fla. 5th DCA 2009) (“[W]e hold that when 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.”). Furthermore, the automobile exception to the warrant requirement, irrespective of an arrest, permits a warrant-less search supported by probable cause “based on the inherent mobility of vehicles, as well as the reduced expectation of privacy in a vehicle.” Harris v. State, 71 So.3d 756, 765 (Fla.2011) (citing Pennsylvania v. Labron, 518 U.S. 938, 990, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)), rev’d on other grounds, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013).

McIntosh’s case is more akin to United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), and Crump v. State, 622 So.2d 963 (Fla.1993), wherein warrantless searches of vehicles are addressed. In Crump, the supreme court held the lower court correctly denied a defendant’s motion to suppress evidence obtained without a warrant from his pickup truck, stating:

Under the vehicle exception to the warrant requirement “[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.”
Carney, 471 U.S. at 394, 105 S.Ct. at 2071 (quoting United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982)). In the instant case, the relevant question is whether the police unreasonably seized and searched Crump’s truck. We find that this search was not unreasonable because it was plainly one that a magistrate could authorize. Here, the record shows that the police officers relied on a *585witness’s description and identification of Crump’s truck as the vehicle that Smith entered on the night of her murder and the unique features of the truck with its amber rotating light which was broken on the passenger side, dark tinted windows, and large tires. The facts establish that probable cause existed to seize Crump’s truck, thus we find that a magistrate could have authorized a warrant. We hold that the trial court correctly denied Crump’s motion to suppress the evidence.

Crump, 622 So.2d at 970.

Here, the search was based on the girlfriend’s statements that she was a victim of aggravated assault and the firearm used in the aggravated assault was placed in the vehicle. The officers had probable cause to search the entire vehicle without a warrant based upon the victim’s statement. See Chaney v. State, 956 So.2d 535, 537-38 (Fla. 4th DCA 2007) (discussing probable cause determination based on totality of circumstances). Although an arrest occurred, the search was conducted pursuant to the girlfriend’s statements, not incident to the arrest. Therefore, we find the officer’s search of McIntosh’s car reasonable because probable cause existed to justify the search.

The trial court’s finding that there was no probable cause for the initial arrest was not argued by either party, and is not supported by the record in this case. The order granting the motion to suppress is reversed and vacated, and the matter is remanded for further proceedings.

REVERSED and REMANDED for further proceedings.

TORPY and EVANDER, JJ„ and JACOBUS, Senior Judge, concur.


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Cited By

  • State v. Diaz-Ortiz, 174 So. 3d 1022 (Fla. 5th DCA 2015)
    …a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”); State v. McIntosh, 116 So. 3d 582, 584-85 (Fla. 5th DCA 2013); see also Ruiz, 743 So. 2d at 582 (concluding that police had probable cause to seize a car, which was abutting an alley behind the defendant’s residence, where someone fired a shotgun from the car on the interstate). As…
  • Strong v. State (Fla. 5th DCA 2019)
    …ling to brief the issue. Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009). 2 enforcement had probable cause to stop Strong and search the rental car based on the informant’s tip, Strong’s location, 2 and the 9-1-1 call. See State v. McIntosh, 116 So. 3d 582, 584–85 (Fla. 5th DCA 2013) (finding probable cause for search existed based on evidence presented at motion to suppress hearing). AFFIRMED. EDWARDS and SASSO, JJ., concur. 2 Although Strong did not have standing to contest the placement of the GP…
  • …& Tobacco, 254 So. 3d 1113, 1117 (Fla. 1st DCA 2018) ("[I]n order for a machine to be an illegal slot machine, the element of chance or unpredictability must be inherent in the operation of the machine itself." (emphasis added)); State v. McIntosh, 116 So. 3d 582, 584 (Fla. 5th DCA 2013) ("[T]he automobile exception to the warrant requirement, irrespective of an arrest, permits a warrantless search supported by probable cause 'based on the inherent mobility of vehicles, as well as the reduced expectation of…

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