GILFREDO RIVERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1979-07-03
No. 78-781
Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
373 So. 2d 64 Florida District Court of Appeal, Third District (1979) Positive Treatment
Cited by 6 cases

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Synopsis

Gilfredo Rivera was convicted of carrying a concealed weapon after police discovered a pistol in his vehicle during a traffic stop for erratic driving. The District Court of Appeal affirmed the denial of Rivera's motion to suppress, holding that the search was lawful based on probable cause, the necessity of an inventory search, and the officer's authority to search incident to a lawful arrest for suspected intoxication.


Holding

The court affirmed the denial of the motion to suppress on multiple alternative grounds: (1) Officer Blankenship had probable cause to search the vehicle based on the discovery of live ammunition and Rivera's admission of possessing a pistol; (2) an inventory search was necessary because the vehicle had to be impounded with no reasonable alternative; and (3) under State v. Gustafson, a search is justified when there is reasonable suspicion of intoxication, and any evidence of crime discovered during a proper arrest-related search is admissible.


Headnotes

[1] A warrantless search of an automobile is permissible when there is probable cause to believe the vehicle contains contraband or evidence of a crime.

[2] An inventory search of a lawfully impounded vehicle is permissible and any evidence discovered during such a search is admissible.

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Key Quotes

“If there is probable cause for searching an automobile which has been stopped for traffic violations, a search warrant is not necessary.”

Establishes the automobile exception to the warrant requirement allowing warrantless searches of vehicles based on probable cause.

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Facts & Procedural History

Officer Blankenship observed Rivera operating his vehicle erratically in the early morning hours of February 15, 1977, and stopped him. After Rivera f…

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Opinion of the Court
HAVERFIELD, Chief Judge.

HAVERFIELD, Chief Judge.

Gilfredo Rivera, following his conviction for carrying a concealed weapon, appeals the denial of his motion to suppress the evidence seized which he argues was discovered as a result of an unlawful search.

In the early morning hours of February 15, 1977, Officer Larry Blankenship observed the defendant Rivera operating his vehicle in an erratic manner. He stopped the vehicle, asked Rivera to exit and administered a roadside sobriety test. Upon failing the test, Officer Blankenship placed Rivera under arrest, handcuffed him, read him his rights and placed him in the custody of another officer who had arrived on the scene. Immediately thereafter, Officer Blankenship went back to Rivera’s car and from the outside observed several live ammunition rounds lying on the front passenger seat. He then proceeded to search Rivera’s person and upon finding live rounds in his pockets asked Rivera if he had a pistol. Rivera first denied having a pistol but as Officer Blankenship turned around and started toward Rivera’s car which he informed Rivera he was going to search, Rivera then stated he had a pistol and upon being asked where, he answered next to the seat. Officer Blankenship retrieved the gun from Rivera’s car and Rivera subsequently was charged with carrying a concealed weapon. Rivera’s motion to suppress the gun on the ground that it was illegally seized without a warrant was denied. After a non-jury trial, Rivera was convicted as charged and this appeal ensued. We affirm the denial of the motion to suppress for the following reasons:

First, we agree with the holding of the trial court that in light of the discovery of the live rounds of ammunition on the seat of the car and the person of Rivera and Rivera’s admission of having a pistol, Officer Blankenship had probable cause to search the vehicle. If there is probable cause for searching an automobile which has been stopped for traffic violations, a search warrant is not necessary. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Second, under the circumstances the police had to impound Rivera’s vehicle as there was no reasonable alternative and, therefore, an inventory search was required.1 See State v. Dearden, 347 So. 2d 462 (Fla. 2d DCA 1977). In the instant case the live rounds of ammunition were clearly visible on the front seat. Leaving the car unguarded on the deserted street in the early hours of the morning would have constituted a clear invitation for someone to vandalize the car with the expectation of possibly finding a gun. Thus, the gun seized was admissible as incident to a lawful inventory search.

Third, our Supreme Court has held where (as in the instant case) there is a reasonable suspicion that a driver is intoxicated, not only is stopping the vehicle justified, but also a search for intoxicants or drugs is justified. State v. Gustafson, 258 So. 2d 1, 2 (Fla.1972). Further, it does not matter that the search produced a gun instead of an intoxicant, once a proper arrest is made and the defendant is in custody, a reasonable search may be conducted and any. evidence reflecting that a crime has been or is being committed which is discovered as a result is proper and admissible. State v. Gustafson, supra.

Last, State v. Skrobacki, 331 So. 2d 376 (Fla. 1st DCA 1976) upon which Rivera so heavily relies for reversal, is readily distinguishable and not applicable to the instant case. Unlike here, in Skrobacki there was no contention that the search was an inventory search nor did the record show that the vehicle was impounded. Further, in the case at bar the officer had probable cause, not only because of the discovery of the live rounds of ammunition, but also because the defendant Rivera admitted he had a pistol in the car next to the driver’s seat.

Affirmed.

. The vehicle was in fact impounded.


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Citator

Cited By

  • State v. Howell, 384 So. 2d 60 (Fla. 4th DCA 1980)
    …n, including slurred speech and staggering. We consider the gun search to have been proper under State v. Gustafson, 258 So. 2d 1 (Fla.1972), affirmed, Gustafson v. State, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and Rivera [*61] v. State, 373 So. 2d 64 (Fla.3d DCA 1979). We conclude that the trial court committed error in suppressing the gun and reverse and remand the cause for further proceedings consistent herewith. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. GLICKSTEIN and HURLEY, JJ.…
  • COX v. State, 75 So. 3d 325 (Fla. 1st DCA 2011)
    …(1982) (holding that a war-rantless search of a vehicle supported by probable cause is not unreasonable if [*326] based on facts that would justify issuance of a warrant); Minnis v. State, 577 So. 2d 973, 975-76 (Fla. 4th DCA 1991); Rivera v. State, 373 So. 2d 64, 66 (Fla. 3d DCA 1979) (concluding that where defendant was properly stopped for erratic driving, officer had probable cause to search the vehicle after defendant admitted having a pistol next to the driver’s seat); State v. Patterson, 309 So. 2d 55…
  • Richardson v. State, 420 So. 2d 943 (Fla. 3d DCA 1982)
    …PER CURIAM. Affirmed. United States v. Ross, — U.S. —, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Miller v. State, 403 So. 2d 1307 (Fla.1981); Rivera v. State, 373 So. 2d 64 (Fla.3d DCA 1979).…

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