233 So. 2d 866 | Fla. Dist. Ct. App. | 1970
This is an interlocutory appeal from an order entered by the trial judge suppressing the fruits of a warrantless search of an automobile driven by appellee. The undisputed statement of the facts is that Officers Howell and Barrington, while on patrol in the early morning hours, observed a male and female in a telephone booth and another male sitting in a 1960
After the three had been placed in custody, the officers called for a wrecker to tow the Oldsmobile to the police station; and keeping the vehicle in sight at all times they followed it in tow until arrival. Thereafter,' upon transferring custody of the three to other officers at the station, the arresting officers proceeded to search the Oldsmobile and found the suppressed evidence, which included the telephone coin box and burglarious tools, on the “front floorboard” of the car. All told, from a time standpoint, some “IS or 20 minutes” elapsed between the first arrest and the beginning of the search, and a total of 40 minutes to an hour was consumed from the beginning of the entire episode until the end.
Appellee contends, and the lower court so found, that once the arrest was effected, and the question of the mobility of the Oldsmobile was no longer a problem, the officers had ample time to get a search warrant; and having failed to do so, the search was unreasonable, citing Carter v. State.
It is rudimentary that a warrant-less search may be made incidental to a lawful arrest. Here there is no question but that the arrest was lawful, and indeed the trial judge correctly so ruled. Thus, upon the arrest, a search could have been made incidental thereto within the area limits proscribed in Chimel v. California.
The precise question devolving, then, is whether the waiting for 15-20 minutes on the part of the officers to do that which they could have done immediately, under the circumstances of this case, renders the search unreasonable. We think not; and we preface our discussion by repeating the observations of the United States Supreme Court in Cooper, supra,
“It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ ”
Clearly, then, the time factor alone is not controlling, and the test otherwise is reasonableness. Here, two officers were in the process of arresting and securing the custody of 3 persons strongly suspected, of having committed a felony,
We don’t say that a totally unconnected, exploratory or unexplained search, or an unreasonably long delayed search, would not be invalid; nor do we have to decide whether the circumstances herein satisfy the criteria for the authorization of an “inventory search”, which we discussed in Godbee v. State.
Accordingly, the order suppressing the evidence herein was error; and it should be, and hereby is,
Reversed.
. (Fla.App.2d 1967), 199 So.2d 324.
. (Fla.App.1st 1968), 213 So.2d 614.
. (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.
. (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.
. 79 C.J.S. Searches and Seizures § 67a, p. 840. Cf., Chimel v. California, id.
. (Fla.App.2d 1969), 224 So.2d 441.
. See, e. g., Preston v. U. S. (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, in which, significantly, and in addition to an unreasonable delay, the search far exceeded the proscribed area permissible under Chimel. Preston antedated Chimel, so the court did not take into account this factor since it felt bound by the limits approved in U. S. v. Rabinowitz (1950), 339 U.S. 56, 61, 62, 70 S.Ct. 430, 94 L.Ed. 653, which Chimel expressly overruled. See, also, Cooper v. Calif., n. 3, supra.