STATE OF FLORIDA, APPELLANT,
v.
CARMEL LASHONE BOSTICK, APPELLEE
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.
The Florida District Court of Appeal reversed a suppression order, holding that the trial court erred in suppressing cocaine found during a search incident to arrest. The court determined that the arrest for driving with a suspended license was supported by probable cause because the Legislature amended the statute to include an "actual physical control" standard similar to DUI law.
The arrest for driving with a suspended license was supported by probable cause because the Legislature amended the statute to define "drives" to include actual physical control of the vehicle, bringing it in line with DUI law. The suppression order was therefore improper, and the cocaine was admissible.
[1] An arrest for driving with a suspended license requires probable cause that the defendant was operating or in actual physical control of the vehicle.
[2] A "partially full bottle of liquor" and an open container violation do not, in themselves, establish probable cause for an arrest for driving with a suspended license.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is conceded that the open container violation does not subject the offender to an arrest. The state's argument to justify the warrantees [sic] search was predicated upon the arrest for driving while license suspended. The facts of this case do not establish probable cause for such an arrest.”
The trial court's reasoning for suppressing the evidence, focusing on the lack of probable cause for the driving while license suspended arrest.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellee was sitting in the driver's seat of a parked vehicle holding what appeared to be an alcoholic beverage. A police officer observed a partially…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Judge.
This is an appeal from an order granting a motion to suppress evidence which appel-lee had claimed was seized as a result of an illegal search and seizure.
Appellee was sitting in the driver’s seat óf a vehicle and was holding what looked like an alcoholic beverage. A police officer asked appellee to hand over the drink for inspection because a partially full bottle of liquor was on the seat next to the driver and she, the officer, was investigating. The drink smelled of an alcoholic beverage so this led the officer to ask appellee for her driver’s license. The officer then determined the license was suspended. An arrest ensued and cocaine was found in a search incident to arrest.
The trial judge found
... It is conceded that the open container violation does not subject the offender to an arrest. The state’s argument to justify the warrantees [sic] search was predicated upon the arrest for driving while license suspended. The facts of this case do not establish probable cause for such an arrest. The vehicle was not running, nor had anyone seen the defendant drive the vehicle. Unlike the DUI statute where the legislature specifically included actual physical control the driving while license suspended statute has no such language. Marshall v. State, 354 So. 2d 107 (2nd D.C.A.1978).
After the ruling in Marshall, relied upon below, the legislature passed a new law which brought the suspended license drivers in fine with the DUI drivers and defined one who drives a vehicle as one who “operate[s] or ... [is] in actual physical control ...” § 322.01(15), Fla. Stat. (1999) from ch. 89-282, § 3, at 1665, Laws of Fla. The order of suppression is quashed and this cause remanded for further proceedings.
ORDER QUASHED; REMANDED;
COBB and HARRIS, JJ., concur.
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Citator
Cited By
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State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000)…ol of a motor vehicle was not enough to convict for driving without a license. The statutes regulating driver’s licenses have been amended since Marshall. See Ch. 89-282, § 3, at 1665, Laws of Fla. As noted by the Fifth District in State v. Bostick, 751 So. 2d 780 (Fla. 5th DCA 2000), which was issued after the trial court’s ruling in this case, section 322.01(15), Florida Statutes (1999) now includes the following definition for the term “drive”: “[a]s used in this chapter ... ‘[d]rive’ means to operate or b…
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Melvin v. State, 141 So. 3d 592 (Fla. 4th DCA 2014)…2010); Silverstein v. State, 985 So. 2d 635 (Fla. 4th DCA 2008); see also State v. Tucker, 761 So. 2d 1248, 1249 (Fla. 2d DCA 2000) (in DWLSR prosecution under section 322.34, actual physical control is an element of the offense); State v. Bostick, 751 So. 2d 780, 780 (Fla. 5th DCA 2000) (same). [*593] Affirmed in part, reversed in part, and remanded with directions. DAMOORGIAN, C.J., STEVENSON and LEVINE, JJ., concur.…
Authorities Cited
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)