author: WOLF, J.

text:
    Cedric Tyrone SMALLWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3469.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    Nancy A. Daniels, Public Defender, and Barbara A. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions for armed robbery while in actual possession of a firearm and possession of a firearm by a convicted felon. He raises one issue on appeal: whether the trial court erred in denying his motion to suppress photographs discovered on his cell phone by the arresting officer incident to his arrest.

In the instant case, there is nothing in particular about the crime for which appellant was ai'rested nor any information about this case which would have led the officer reasonably to believe the cell phone contained evidence related to the crime for which appellant was being arrested. We are, however, constrained to affirm the denial of the motion to suppress based on article I, section 12 of the Florida Constitution, which mandates we follow United States Supreme Court precedent in the area of search and seizure. Therefore, we are bound by the Supreme Court’s decision of United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), in which the Court held containers found upon a person incident to arrest may be searched without “additional justification.” We are not unmindful, however, of the unique qualities of a cell phone which, like a computer, may contain a large amount of sensitive personal information. We, therefore, also certify a question of great public importance concerning whether the general rules announced in Robinson, 414 U.S. 218, 94 S.Ct. 467, regarding searches incident to arrest are applicable to information contained on a cell phone held on an arrestee’s person.

Here, prior to trial, the State indicated it would attempt to introduce photographs discovered on appellant’s cell phone by the arresting officer at the time of his arrest. The State argued the photographs were legally obtained at the time of appellant’s arrest, asserting searches incident to lawful arrest were constitutionally permissible and reasonable in order to disarm an ar-restee and to preserve evidence on the arrestee’s person. Appellant argued the search of the phone was invalid. He argued he had a reasonable expectation of privacy in the information stored on his phone, and the only case law supporting the search of a cell phone as a valid search incident to arrest involved drug-related offenses because phones are often used as an instrumentality in such crimes.

The trial court found the State was entitled to view the contents of the phone because the cell phone was legally confiscated at the time of appellant’s arrest and was still in the possession of the State. The trial court analogized this case to finding a locked box on an arrestee’s person or in an arrestee’s car at the time of the arrest, which the State would be permitted to open.

Appellant subsequently filed a written motion to suppress, renewing his argument that the warrantless search of his phone and seizure of the photographs constituted a Fourth Amendment violation. The court conducted a hearing at which the parties reiterated their prior arguments. Additionally, appellant represented that he took the arresting officer’s deposition, and he stated he looked at appellant’s phone “to see if he took any pictures” that would “relate to the crime” because he “knew people sometimes do that.”

The trial court again found the photographs were admissible, relying on United States v. Finley, 477 F.3d 250 (5th Cir. 2007), in which a federal court upheld the search of a defendant’s cell phone seized incident to his arrest. It also relied on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the United States Supreme Court found police were permitted to open containers found in the passenger compartment of an arrestee’s automobile, and analogized the cell phone to a closed container.

During the trial, the arresting officer testified he “looked in the phone for two reasons. One, to see if it was the same one he had been calling me from, and to see if, in fact, did he have any pictures or anything that might be evidence to the crime.” He testified he “found several photos in the phone, photos of [appellant] holding large amounts of cash, there was a gun, jewelry, stuff like that.” The photographs were admitted into evidence at trial. The robbery victim identified appellant in the cell phone photographs and testified the money in the photographs was folded and secured in the same way as the money taken during the robbery. He further testified the pictures depicted a gun that was silver and black, as was the gun used during the robbery.

A discussion of the general law on searches incident to arrest and searches of cell phones is necessary for meaningful analysis of this issue.

a. Search and Seizure Incident to Arrest — General Precedent

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court defined an exception to the Fourth Amendment warrant requirement for searches conducted incident to arrest. The Chimel court reasoned pursuant to this exception:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety-might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arres-tee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the amstee’s person and the area ‘within his immediate control’-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Id. at 763, 89 S.Ct. 2034 (emphasis added). The Chimel court found this exception to the warrant requirement did not, however, extend into the arrestee’s entire house, or concealed areas in the room where the arrestee was arrested, because these were not areas into which the arrestee might reach. Id. Therefore, the Supreme Court found, officers’ seizure of evidence during a search of the entirety of Chimel’s home incident to his arrest, including drawers in his master bedroom, violated the Fourth Amendment. Id.

Subsequently in Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the Supreme Court found the scope of a search incident to arrest included searching for and inspecting the contents of personal effects found on an arrestee’s person, even if it was not likely the arrestee would have a weapon or evidence related to the crime. In Robinson, an officer arrested the defendant for operating a motor vehicle with a revoked license and conducted a pat-down search. Id. at 220-23, 94 S.Ct. 467. The officer found a “crumpled up cigarette package” on his person that the officer opened and found contained heroin. Id. at 223, 94 S.Ct. 467. The Supreme Court concluded, “[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them.” Id. at 236, 94 S.Ct. 467. The Court reiterated, “[t]he justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” Id. at 234, 94 S.Ct. 467 (emphasis added).

The Court rejected the defendant’s argument that the officer should not have been permitted to conduct a full search because it was not likely someone arrested for driving with a license revoked would have a weapon or evidence of that crime on his person. Id. at 234-35, 94 S.Ct. 467. The Robinson court reasoned,

... our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.

Id. at 235, 94 S.Ct. 467 (emphasis added).

A few years later in Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the Supreme Court extended this incident-to-arrest warrant exception to the search of vehicles, finding the lawful search justifies the infringement of any privacy interests. The Court found that where an officer arrests the occupant of a vehicle, the officer “may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile.” Id. at 460, 101 S.Ct. 2860. The Court reasoned, “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, if not inevitably, within the area into which an arrestee might reach.” Id. (citation omitted). The Court further reasoned, “[i]t follows from this conclusion that the police may examine the contents of any container found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee, so also will containers in it be within his reach.” Id. The Court defined “container” as “any object capable of holding another object,” including “luggage, boxes, bags, clothing, and the like.” Id. at 461 n. 4, 101 S.Ct. 2860. The Court found, “[s]uch a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” Id. at 461, 101 S.Ct. 2860 (emphasis added).

The Court conceded:

It is true, of course, that these containers mil sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. However, in United States v. Robinson, the Court rejected the argument that such a container-there a “crumpled up cigarette package”-located during a search of Robinson incident to his arrest could not be searched ...

Id. at 461, 101 S.Ct. 2860 (emphasis added). The Belton court upheld the search of a vehicle that revealed cocaine in the pocket of a jacket inside the car. Id. at 461-63, 101 S.Ct. 2860.

However, recently in Arizona v. Gant, - U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Supreme Court limited the application of Belton and Chimel with regards to searching a vehicle. The Court found that following Belton, the prevailing interpretation by lower courts was to read Belton “as authorizing a vehicle search incident to every recent occupant’s arrest.” Id. at 1719. The Court found, “we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. (emphasis added). The Gant court distinguished in Belton, the officer was unable to secure the four arres-tees who had been passengers in the vehicle because he was alone and had only one set of handcuffs. Id.

The Court further found, “[although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Id. (quoting Thornton v. U.S., 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004)). The Court distinguished, “[i]n many cases, where a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.” Id. (citing Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)). In contrast, “in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Id.

In Gant, the defendant was arrested for driving with a suspended license, and after he was handcuffed and locked in a patrol car, police searched his car and discovered cocaine. Id. at 1714. The Supreme Court found it was not reasonable to believe evidence of the crime of driving with a suspended license would be found in the car, and Gant was secured; therefore, the search of his car was in violation of the Fourth Amendment. Id. at 1719, 1723-24.

While appellant relies heavily on Gant for the proposition that the police now need reasonable grounds to search closed containers (analogizing a cell phone to a car), we find it inapplicable to the present situation where the item that was searched was found on appellant’s immediate person.

Also informative is the Florida supreme court’s decision in Jenkins v. State, 978 So.2d 116, 125-126 (Fla.2008). In Jenkins, the Florida supreme court recognized that a search incident to arrest is an exception to the warrant requirement of the Fourth Amendment, but found, “[njonetheless, a search incident to arrest is still subject to a standard of reasonableness.” Id. at 125 (citing Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)). The court applied the rationale of a United States Supreme Court opinion discussing the Fourth Amendment generally:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Jenkins, 978 So.2d at 126 (quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)) (finding body cavity searches of inmates were reasonable considering the balance of legitimate security interests against inmates’ privacy interests). In Jenkins, the Florida supreme court found the scope and manner of a search incident to arrest for drug activity was reasonable, during which officers pulled the defendant’s boxer shorts away from his body and discovered cocaine in a plastic baggie, reasoning the defendant was not exposed and the officer did not touch his body. Jenkins, 978 So.2d at 126-27.

While we find the balancing test in Jenkins an appealing method for evaluating the legitimacy of a search of this type, the search in that case was upheld and the test appears to have been utilized only in reference to limiting the extent to which an arrestee’s body may be searched while in, public.

b. Search and Seizure Incident to Arrest — Cell Phones

Here, the State argues the officer’s search of photographs on appellant’s phone was within the scope of a permissible search incident to arrest, relying on a line of federal cases finding such a search is permissible because a cell phone is a “container” that may be searched pursuant to Chimel, Belton, and Robinson, and contains data that needs to be preserved right away.

i. Cases finding cell phone searches are constitutionally valid

The State relies primarily on Finley, All F.3d 250, on which the trial court relied in denying the motion to suppress. In Finley, the defendant was arrested following an under-cover controlled drug buy, and his cell phone was seized. Id. at 253-54. Officers searched the phone and discovered text messages that appeared to be related to narcotics use and trafficking, which the defendant confirmed during questioning. Id. at 254-55. The Fifth Circuit affirmed the trial court’s denial of the defendant’s motion to suppress. Id. The court found the defendant “had a reasonable expectation of privacy in the call records and text messages on the cell phone,” regardless of the fact the phone was issued to him by his employer. Id. at 259. However, the Finley court found pursuant to Robinson, incident to arrest, officers “without any additional justification, may look for evidence of the arres-tee’s crime on his person in order to preserve it for use at trial.” Id. at 259, 94 S.Ct. 467 (citing Robinson, 414 U.S. at 233-34, 94 S.Ct. 467). Relying on Robinson and Belton, the Finley court further found the “permissible scope of a search incident to lawful arrest extends to containers found on the arrestee’s person.” Id. The court rejected Finley’s argument that police could not look in the phone because it was a closed container, finding Finley improperly relied on distinguishable case law that precluded the opening of closed containers where there was no exception to the warrant requirement. Id.

Further, in United States v. Murphy, 552 F.3d 405, 411 (4th Cir.2009), the Fourth Circuit found an officer’s search of a cell phone incident to arrest for drug-related crimes did not violate the Fourth Amendment. The Murphy court noted pursuant to Chimel, officers could search an arrestee and the area within the arres-tee’s immediate control incident to arrest. Id. at 410 (citing Chimel, 395 U.S. at 763, 89 S.Ct. 2034). The court then found cell phones in particular could be searched incident to arrest due to the “volatile nature” of cell phone information and “manifest need ... to preserve evidence.” Id. at 411 (citation omitted). The defendant argued that officers should only be permitted to search phones with limited storage capacity, but not phones with larger storage capacities because there would be less danger of the phone deleting data. Id. The Murphy court rejected this argument, finding such a requirement would be “unworkable and unreasonable,” and further found “it is very likely that in the time it takes for officers to ascertain a cell phone’s particular storage capacity, the information stored therein could be permanently lost.” Id.

The Murphy court relied on United States v. Young, 278 Fed.Appx. 242, 245-46 (4th Cir.2008), in which officers arrested the defendant for drug-related crimes and discovered a cell phone on his person, and then searched the phone and copied down text messages found therein. The Young court found the “[p]rivacy rights in the phone are tempered by an arresting officer’s need to preserve evidence,” noting Robinson found the need for preservation of evidence was one of the primary reasons behind the warrant exception for searches incident to arrest. Id. at 245, 94 S.Ct. 467. The Young court found the officers’ search and seizure of the text messages was permissible because the officers “had no way of knowing whether the text messages would automatically delete themselves or be preserved.” Id.

Murphy also relied on United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996), in which the Seventh Circuit affirmed the denial of a motion to suppress evidence retrieved from a pager incident to an arrest for drug-related crimes. In Ortiz, the Seventh Circuit found it was “imperative” that officers be permitted to retrieve numbers from electronic pagers incident to arrest to “prevent its destruction as evidence,” because incoming pages may destroy stored numbers on pagers that have limited memory, and the contents of some pagers can be destroyed by turning off the pager or pushing a button. Id.

Similarly, in United States v. Deans, 549 F.Supp.2d 1085, 1093-94 (D.Minn.2008), the court found a cell phone was a “container,” as contemplated by Belton, that could be searched incident to arrest. Thus, the court reasoned, “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.” Id. at 1094. The Deans court affirmed the denial of the defendant’s motion to suppress electronic data from his phone searched incident to his arrest for drug-related crimes. Id.

Furthermore, in United States v. Santillan, 571 F.Supp.2d 1093, 1102 (D.Ariz.2008), the court found officers’ search of the call log on the phone of a defendant arrested for drug-related crimes was a permissible search incident to arrest, relying on Finley, 477 F.3d at 258-60. The court further found the warrantless search would also be justified under the exigent circumstances exception to the warrant requirement, reasoning “ ‘a cell phone has a limited memory to store numbers” and “subsequent incoming calls” could “effect[ ] the deletion or overwriting of the earlier stored numbers,’ ” even if the phone is turned off. Id. at 1103 (quoting U.S. v. Parada, 289 F.Supp.2d 1291, 1303-04 (D.Kan.2003)).

Additionally, Newhard v. Borders, 649 F.Supp.2d 440, 448 (W.D.Va.2009), relied on by the State, is one of the only eases we found that addresses photographs found on cell phones. In Newhard, the district court affirmed the trial court’s dismissal of a civil action filed by an arrestee who argued police violated his civil rights by viewing photographs on his cell phone which was seized incident to his arrest. Id. The district court found the officers were entitled to qualified immunity because “[i]n the Internet age, the extent to which the Fourth Amendment provides protection for the contents of electronic communications (such as images stored in a cell phone) in a search incident to arrest or inventory search is an open question,” with no “clear rule from the United States Supreme Court.” Id. at 448. Although, it should be noted, the district court speculated the recent Supreme Court opinion in Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, limiting the search of vehicles, “could possibly be interpreted to stand for the proposition that police may not search a cell phone incident to an arrest without a warrant unless they have reason to believe the arrestee can access the phone and destroy relevant evidence or that the phone contains evidence of the specific offense that is the subject of the arrest.” Newhard, 649 F.Supp.2d at 448 n. 6.

Also notable is the California supreme. court’s recent decision in California v. Diaz, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (2011), in which the court affirmed the denial of a motion to suppress a text message found on the defendant’s phone. In Diaz, a detective witnessed the defendant participate in a controlled drug buy, arrested him, and seized his cell phone from his person. Id. at 502. Upon questioning at the station, the defendant denied any knowledge of the drug buy. Id. The officer then, approximately 90 minutes after the arrest, “looked at the cell phone’s text message folder and discovered a message” that was incriminating, at which point the defendant confessed. Id.

The Diaz court primarily addressed the defendant’s argument that the text message should be suppressed because the search of the phone was too remote in time and place to constitute a search incident to arrest. Id. at 503-07. Diaz concluded this determination hinged on whether the evidence searched was personal property immediately associated with the arrestee’s person, which may later be searched “ ‘even though a substantial period of time has elapsed.’ ” Id. at 504 (quoting U.S. v. Edwards, 415 U.S. 800, 802-03, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) (finding articles of clothing could be searched for evidence 10 hours after they were seized upon the defendant’s being booked)). Or, whether the property was akin to “ ‘luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control,’ ” which may not be searched if “‘the search is remote in time and place to the arrest.’ ” Id. at 505 (quoting U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (finding warrantless search of footlocker found in the trunk of a car 90 minutes after the arrest was invalid)).

Diaz found the cell phone was personal property immediately associated with the defendant’s person; therefore, the search was valid despite the 90-minute lapse in time between the cell phone being seized and being searched. Id. at 506. In so finding, Diaz rejected the defendant’s argument that a cell phone should not be considered personal property immediately associated with the person, and instead should be analogized to a larger storage container like luggage, because cell phones held so much more information than what could traditionally be carried on one’s person. Id. at 506-07.

In rejecting the defendant’s argument, the Diaz court found the delayed warrant-less search of property immediately associated with the person “is valid because of ‘reduced expectations of privacy caused by the arrest.’ ” Id. at 506 (quoting Chadwick, 433 U.S. at 16, 97 S.Ct. 2476). Moreover, the Diaz court noted Robinson found “if a custodial arrest is lawful, then a ‘full’ search of the arrestee’s person ‘requires no additional justification.’ ” Id. (quoting Robinson, 414 U.S. at 235, 94 S.Ct. 467). Diaz concluded, “[njothing in these decisions even hints that whether a warrant is necessary for a search of an item properly seized from an arrestee’s person incident to a lawful custodial arrest depends in any way on the character of the seized item.” Id. at 507.

The Diaz court also analogized that in considering the proper scope of a warrant-less search of an automobile where the police have probable cause to believe it contains contraband, police may search any container or compartment that may contain the object of the search. Id. at 507 (citing United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768). Thus, Diaz concluded, “there is no legal basis for holding that the scope of a permissible warrantless search of an arrestee’s person, including items immediately associated with the ar-restee’s person, depends on the nature or character of those items.” Id.

Diaz also rejected the dissent’s argument that cell phones should not be searched incident to arrest because they are more than mere “containers” as contemplated by Robinson. Id. at 510. Diaz found, “application of the rule ... turns not on whether the item in question constitutes a ‘container,’ but on whether it is ‘property,’ ” which is defined as a “belonging” or “effect” of the arrestee. Id.

Diaz is distinguishable from the case at hand because it turned on the determination of an issue not raised here — whether the search was too remote in time to be considered incident to arrest. The analysis in Diaz is relevant here, however, because Diaz correctly notes courts have not traditionally limited the scope of a search incident to arrest based on the nature of the property found on the arrestee.

A Georgia appellate court also recently upheld the search of a cell phone found in a vehicle incident to arrest. Hawkins v. State, 307 Ga.App. 253, 704 S.E.2d 886 (2010). In Hawkins, an officer set up a drug buy through text messaging, and when he arrived at the prearranged location, he discovered the buyer, watched her entering data into her cell phone, and arrested her while she was sitting in her car. Id. at 888-89. The officer subsequently searched the car and found her cell phone in her purse, and searched the text messages on her phone. Id.

Hawkins found the search of the arrestee’s car incident to arrest was valid pursuant to Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, because it was reasonable for the officer to believe the car would contain evidence of the crime — specifically, the cell phone with which she set up the drug buy. Id. at 892. The court noted, “[although Gant does not define the scope of such a search with precision, we know that it must be limited to a search for evidence of the crime of arrest.” Id. at 889 (citing Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485; U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572). The Hawkins court further noted Gant found such a search is “more limited in scope than a search based on probable cause ... which permits a search of any place or thing in the vehicle that might contain any evidence of [any] criminal activity.” Id. (citing Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485; Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572). Hawkins further noted that in conducting a warrantless search of an automobile based on probable cause, the scope of the search “ ‘is not defined by the nature of the container in which the contraband is secreted. Rather it is defined by the object of the search and the places where there is probable cause to be found.’ ” Id. at 890 (quoting Ross, 456 U.S. at 824, 102 S.Ct. 2157). The court in Ross explained by example, “[j]ust as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.” Ross 456 U.S. at 824, 102 S.Ct. 2157.

Hawkins determined cell phones were containers that may be searched incident to arrest. 704 S.E.2d at 891. However, Hawkins expressed concern that cell phones were distinguishable from ordinary containers because they “often will contain the most sensitive kinds of personal information, in which individuals may reasonably have a substantial expectation of privacy and for which the law offers heightened protection.” Id. Therefore, applying Gant and Ross, the court concluded, “we think courts generally should ... treat such a device like a container that stores thousands of individuar containers in the form of discrete files.” Id. (citation omitted). “Just because an officer has the authority to make a search of the data stored on a cell phone (that is, just because he has reason to ‘open’ the ‘container’) does not mean that he has the authority to sift through all of the data stored on the phone (that is, to open and view all of the sub-containers of data stored therein).” Id. “Instead, his search must be limited as much as is reasonably practicable by the object of the search.” Id. at 892.

Hawkins is not directly applicable to the case at hand because Hawkins analyzed the cell phone search based on the permissible search of an automobile, which is more limited than the search of one’s person. Because the cell phone in Hawkins was in the car, it seems the Hawkins court was correct in applying Gant to determine whether the officer had reason to believe the car contained evidence, i.e., the cell phone. However, it seems Hawkins went one step further and essentially analogized a cell phone to a car, finding officers may only look into specific areas or “containers” within the cell phone in the same way officers would be able to open various containers in a car pursuant to a probable cause search.

ii. Cases finding cell phone searches invalid

In United States v. Quintana, 594 F.Supp.2d 1291 (M.D.Fla.2009), the federal district court found a cell phone may not be searched incident to arrest unless officers have reason to believe it contains evidence related to the crime. In Quintana, the defendant was pulled over for speeding and arrested for driving with a suspended license. Id. at 1294-95. The arresting officer then, without the defendant’s permission, “began looking through information in [his] cell phone, including a digital photo album, hoping to find evidence related to the odor of the marijuana” he detected coming from the car. Id. at 1295-96. The officer found “photos of an intimate nature involving a woman as well as a photo of a marijuana plant in what he characterized as a marijuana ‘grow house.’ ” Id. at 1296. Based on this photograph, the officers ultimately found the grow house. Id.

The Quintana court recognized that pursuant to Chimel, officers may conduct searches incident to arrest for the safety of law enforcement officers and to prevent the destruction or concealment of evidence; although, pursuant to Robinson, “authority to conduct such searches does not turn on the probability that weapons or evidence will be discovered.” Id. at 1299 (emphasis added) (citing Chimel, 395 U.S. at 762-63, 89 S.Ct. 2034; Robinson, 414 U.S. at 235, 94 S.Ct. 467). The Quintana court also recognized federal precedent permitted the search of cell phones incident to arrest, but found “the defendants in these cases were arrested for drug-related activity when their electronic devices were searched.” Id. “The courts recognized that the devices may have been used to communicate with others participating in, e.g., drug-trafficking. Consequently, there was a reasonable probability that information stored on the device was ‘evidence of the arrestee’s crime.’ ” Id. (quoting Finley, 477 F.3d at 260) (emphasis added).

The Quintana court distinguished:

Whether a cell phone may be searched incident to an arrest to prevent the destruction or concealment of evi dence of another crime is a different issue. In Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), the Supreme Court ... suggests that a search incident to arrest to preserve evidence is permissible only to secure evidence of the crime of the arrest, not evidence of an unrelated crime.

Id. at 1299-1300 (emphasis added). The Quintana court then held:

Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable. In this case, however, Defendant was arrested for driving with a suspended license. The search of the contents of Defendant’s cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest. This type of search is not justified by the twin rationales of Chimel and pushes the seareh-incident-to-arrest doctrine beyond its limits.

Id. at 1300 (emphasis added).

Appellant argues that applying the rationale of Quintana to the case at hand, appellant was not arrested for a drug-related offense, and the officers here had no reason to believe his cell phone would contain evidence of the robbery for which he was arrested; therefore, the search violated the Fourth Amendment.

However, appellant’s reading of Quinta-na seems too narrow. Granted, appellant correctly notes that Quintana found federal precedent allowed the search of cell phones incident to drug-related arrests where there “was a reasonable probability that information stored on the device was ‘evidence of the amstee’s crime.’ ” Id. at 1299 (quoting Finley, 477 F.3d at 260). However, Quintana recognized officers may search for evidence related to the crime of arrest “even if the presence of such evidence is improbable.” Id. at 1300. It seems Quintana merely distinguished that pursuant to Knowles, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492, “search incident to arrest to preserve evidence is permissible only to secure evidence of the crime of the arrest, not evidence of an unrelated crime.” Id. Here, officers were not searching for evidence of an unrelated crime. Officers were searching for evidence of the robbery for which appellant was arrested. Therefore, the rationale of Quintana is not directly applicable here.

Appellant further argues this court should decline to follow the federal precedent permitting the search of cell phones because these cases hinged on the courts analogizing cell phones to “containers.” Appellant concedes that pursuant to Bel-ton and Robinson, containers found on an arrestee’s person may be searched. However, appellant argues cell phones are not mere “containers.” Appellant relies on a recent case in which the supreme court of Ohio rejected the reasoning of the line of federal cases finding a cell phone is a “container” subject to search upon arrest, reasoning: State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 954 (2009). The court cited the great privacy interest in the personal data on cell phones and found a cell phone may not be searched under the incident-to-arrest exception to the warrant requirement. Id. The court noted there is a separate exception to the warrant requirement that allows search and seizure of evidence where “exigent circumstances” exist. Id. at 955-56. However, the court rejected the State’s argument that because cell phones may automatically delete data like call logs, exigent circumstances permit the search of a cell phone, finding the State failed to demonstrate it could not obtain call information from cell phone service providers. Id.

Each of these cases, however, fails to consider the Supreme Court’s definition of “container” in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.

Smith is clearly directly on point as is its reasoning that a cell phone is not a “container” pursuant to Belton. However, Smith’s finding that a cell phone may never be searched under the search-ineident-to-arrest warrant requirement appears to contravene existing United States Supreme Court case law, which has never made any type of evidence found on or within the reach of an arrestee entirely off limits during such a search, not even a car.

c. Analysis

Article I, section 12 of the Florida Constitution provides the right against unreasonable search and seizure as granted under the Florida Constitution “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Therefore, this court is bound by United States Supreme Court precedent. We find pursuant to Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the search of appellant’s cell phone incident to his arrest was not a violation of the Fourth Amendment.

We recognize that as discussed above, many of the federal and state courts that have addressed this issue have found whether or not a cell phone may be searched incident to arrest is contingent upon whether or not a cell phone is a “container” as contemplated by Robinson and Belton. However, neither Robinson nor Belton requires an item be a “container” in order to be searchable upon arrest. Initially in Chimel, the United States Supreme Court broadly found it is “reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person,” as well as the area within the “immediate control” of the arrestee, in order “to prevent its concealment or destruction.” Chimel, 395 U.S. at 763, 89 S.Ct. 2034. Following Chimel, Robinson reasoned, “[hjaving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them.” Robinson, 414 U.S. at 236, 94 S.Ct. 467. Therefore, Robinson did not find the search of an item found on an arrestee was contingent upon that item being a “container,” nor did the opinion even use the word “container.” Instead, the Court simply reasoned that once the officer lawfully came across an item, he “was entitled to inspect it.” Id.

Belton extended this line of cases to the search of automobiles in which the arres-tee was an occupant, which is not directly applicable to the case at hand. 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768. The Belton court reasoned if pursuant to Chimel, an officer was permitted to search an arrestee’s person and “ ‘the area within the immediate control of the arrestee,’ ” it logically followed that officers should also be allowed to search “the passenger compartment” of a vehicle because “articles inside the relatively narrow compass of the passenger compartment of an automobile are ... within ‘the area into which an arrestee might reach.’ ” Id. at 460 (quoting Chimel, 395 U.S. at 763, 89 S.Ct. 2034). The Court similarly reasoned, “[i]t follows from this conclusion that the police may examine the contents of any container found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee, so also will containers in it be within his reach.” Belton, 453 U.S. at 460-61, 101 S.Ct. 2860.

While Chimel, Robinson and Bel-ton permitted the search and inspection of items within the ai'restee’s reach, including containers, none of these cases required an item to be a “container,” as opposed to some other type of item, in order to be searched upon arrest. Thus, whether or not a cell phone is properly characterized as a traditional “container” is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee’s immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones. Therefore, we reject the reasoning of the Ohio supreme court which found cell phones were not searchable incident to arrest because they were not traditional “containers.” Smith, 124 Ohio St.3d 163, 920 N.E.2d 949.

Furthermore, we recognize appellant correctly argues courts have found whether or not an officer had a reason to believe the cell phone contained evidence of the crime of arrest was relevant in determining the permissibility of the search, particularly with regards to drug-related arrests. However, neither Robinson nor Belton requires such a belief. Robinson found the opposite, concluding “[t]he authority to search the person incident to a lawful custodial arrest ... does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” 414 U.S. at 235, 94 S.Ct. 467. Robinson reasoned, “[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Id. Therefore, “a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id.

Subsequently, the Supreme Court summarized its holding in Robinson, explaining “[i]n Robinson, we held that the authority to conduct a full field search as incident to an arrest was a ‘bright-line rule,’ which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern.” Knowles, 525 U.S. at 118, 119 S.Ct. 484 (finding in order to fall under the incident-to-arrest warrant exception, it is not enough that an officer would have had probable cause to make an arrest if the officer so chose; the officer must actually make an arrest). Therefore, clearly the Supreme Court has established a bright-line rule permitting a search incident to arrest, regardless of whether an officer had reason to believe evidence would be found. Thus, whether or not the officer had reason to believe appellant’s cell phone contained evidence of the crime is irrelevant.

While we feel we are bound by the Supreme Court precedent, we recognize appellant’s concern that cell phones contain a vast amount of personal information. However, courts have found the broad language in Robinson permits searches incident to arrest of wallets, purses, date books, and other similar items that contain the same types of personal information stored on a cell phone. See, e.g., Curd v. City Court of Judsonia, Arkansas, 141 F.3d 839, 844 (8th Cir.1998) (finding the search of a purse was valid, rejecting the arrestee’s argument that the search was too remote in time and place to be considered incident to arrest); U.S. v. Holzman, 871 F.2d 1496, 1504-05 (9th Cir.1989) (finding initial examination of address book and subsequent, more thorough search were valid incident to arrest, regardless of the fact the second search occurred at the police station after the arrest), overruled on, other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)); U.S. v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993) (finding “the search of Rodriguez’ wallet and the photocopying of the contents of the address book were permissible as a search incident to arrest,” rejecting the arrestee’s argument that the search was not incident to arrest because the book was copied at the station house and not the scene of the arrest); U.S. v. McEachern, 675 F.2d 618, 622 (4th Cir.1982) (finding “[t]he search of [an arres-tee’s] wallet was incident to arrest and thus permissible”); U.S. v. Vaneenwrjk, 206 F.Supp.2d 423, 426 (W.D.N.Y.2002) (finding “an object such as a day planner, address book or the like is subject to seizure as part of such a search incident to arrest,” and concluding the search of an arrestee’s day planner seized from his vehicle incident to arrest was valid).

Appellant conceded during oral arguments that if the personal information stored on a cell phone were carried by an arrestee in paper form on his or her person, the papers would be searchable incident to arrest. Thus, essentially appellant seeks a heightened level of protection for cell phones based on the vast storage capacity of a cell phone to hold personal data and not simply the personal nature of the data. We find nothing in the language of Robinson or its progeny that would permit this court to limit a search incident to arrest in this manner.

However, we express great concern in permitting the officer to search appellant’s cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence. The bright-line rule established by Robinson may have been prudent at the time, given the finite amount of personal information an arrestee could carry on his or her person or within his or her reach. However, the Robinson court could not have contemplated the nearly infinite wealth of personal information cell phones and other similar electronic devices can hold. Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one’s personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone’s physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one’s personal life available for perusing by an officer every time someone is arrested for any offense. It seems this result could not have been contemplated or intended by the Robinson court.

We would also note that the rationale related to text messages and phone call logs concerning automatic deletion is not applicable here because there was no argument or evidence presented that photographs are subject to automatic deletion.

Furthermore, recently in Gant, the Supreme Court reaffirmed that the original purpose of the incident-to-arrest warrant exception was to protect officer safety and preserve evidence. 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485. Gant is not directly applicable here because its holding is limited to the search of automobiles, but the court’s rationale is very informative here. The court held, “[a]lthough it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Id. at 1719. In so finding, the court reasoned “[a] rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.” Id. at 1720. “Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment-the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.” Id.

The Gant court’s concerns are applicable here. We are equally concerned that giving officers unbridled discretion to rummage through at will the entire contents of one’s cell phone, even where there is no basis for believing evidence of the crime of arrest will be found on the phone, creates a serious and recurring threat to the privacy of countless individuals. Were we free to do so, we would find, given the advancement of technology with regards to cell phones and other similar portable electronic devices, officers may only search cell phones incident to arrest if it is reasonable to believe evidence relevant to the crime of arrest might be found on the phone. Here, there was no evidence the officer had such a reasonable belief.

In light of our concerns, we certify the following question to be one of great public importance:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?

The decision of the trial court is AFFIRMED.

WEBSTER and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: GROSS, C.J.

license: Public Domain

text:
    MRI ASSOCIATES OF AMERICA, LLC (a/a/o Ebba Register), Petitioner, v. STATE FARM FIRE AND CASUALTY COMPANY, Respondent.
    No. 4D10-2807.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Rehearing Denied June 24, 2011.

      Virginia M. Best of Lopez & Best, Miami, for petitioner.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Joseph G. Murasko of Vernis & Bowling, North Palm Beach, for respondent.
   GROSS, C.J.

In its second tier petition for writ of certiorari, MRI Associates of America, LLC, challenges the decision of a circuit court sitting in its appellate capacity. Finding that the circuit court applied the correct law, we deny the petition.

The litigation below concerns MRI Associates’ claim for unpaid benefits under PIP coverage which State Farm Fire And Casualty Company provided to its insured, Ebba Register. Register was in a car accident and sustained injuries. Her treating chiropractor referred her for diagnostic testing to MRI Associates, which performed two MRI scans. Operating under an assignment of benefits from Register, MRI Associates sent its medical records and a health insurance claim form to State Farm seeking a total of $3,523.50; $1,707.33 for one MRI and $1,816.17 for the other.

State Farm hired an expert who performed a “paper peer review” of the bills and medical records and provided a report concluding that both MRIs were not “reasonable,” related to the accident, or “medically necessary.” State Farm denied the claim, detailing several reasons, including the failure to calculate the charges in accordance with section 627.736(5), Florida Statutes (2006).

MRI Associates then submitted a pre-suit demand letter pursuant to section 627.736(11) which showed $1,816.17 and $1,707.33 as the amounts billed for the two MRIs, the same amounts that were contained in the health insurance claim form. The bill also contained an additional column labeled “Amount in Dispute if Paid at 80%;” this column listed one MRI amount as $1,146.22 and the other as $1,061.31. After receiving the demand letter, State Farm declined to pay.

In the county court, MRI Associates filed suit to recover unpaid PIP benefits. On competing motions for summary judgment, the county court ruled that MRI Associates had satisfied the prerequisites of section 627.736(5), and that State Farm could not rely on the report of its expert to deny the claim since it was not a “valid report” as contemplated by section 627.736(7)(a). The court entered a final judgment in favor of MRI Associates and State Farm timely appealed.

The appellate panel of the circuit court reversed and remanded to the county court for the entry of a judgment in favor of State Farm. First, the court applied Central Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Fire and Cas. Ins. Co., 22 So.3d 782 (Fla. 4th DCA 2009), to hold that the expert’s report could have been a proper basis for State Farm’s denial of the bill. Second, the court relied on Fountain Imaging of West Palm Beach, LLC v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (Palm Bch. Cir. Ct.2007) to hold that the presuit demand letter had been sent prematurely, because MRI Associates had not provided State Farm with proper notice of the exact amount owed.

We agree with the reasoning and statutory analysis of Fountain Imaging. In that case, Fountain Imaging sent the PIP insurance company two claims seeking $1,500 for each of two MRIs. The insurer denied the claims. Fountain sent a pre-suit demand letter seeking a total of $3,000, “(subject to Medicare Fee Schedule).” Id. at 614. The insurer refused to pay and Fountain filed suit. The county court, granted the insurer’s motion for summary judgment, ruling that section 627.736(11) requires that a pre-suit demand letter contain “notice of the amount due.” Id.

The circuit court affirmed, providing this analysis of the applicable statute:

PIP benefits are not due until receipt of “... the amount of expenses and loss incumd which are covered by the policy ...” Fla. Stat § 627.736(4)(emphasis supplied). The claim must be submitted on a standardized form, properly completed. Fla. Stat. § 627.736(5)(d). An insurer is not required to pay if the bill “... does not substantially meet the applicable requirements ...” Fla. Stat. § 627.736(5)(b)1.d. Payments are overdue “if not paid within 30 days after the insurer is furnished written notice ... of the amount of [a covered loss].” Fla. Stat. § 627.736(4)(b)(emphasis supplied). Overdue payments bear statutory interest from the date the claim was originally made. Fla. Stat. § 627.736(4)(c). Suit may not be initiated until a demand letter is sent. The letter may not be sent until the payment is overdue. [§ 627.736(ll)(a), Fla. Stat.] It must include an “itemized statement specifying each exact amount,” though “(a) completed form satisfying the requirements of (5)(d) ... may be used ...” Fla. Stat. § 627.736(11). An insurer has 15 days after receipt of the notice to pay the overdue claim, interest, and a 10% penalty, subject to a $250.00 cap. Fla. Stat. § 627.736(11)(d). If it does, the insurer is not obligated to pay attorney’s fees. Ml

Applying the reasoning of Fountain Imaging, we agree with the circuit court that the pre-suit demand letter was sent prematurely because payment was not overdue. The health insurance claim form failed to specify the exact amount owed under the statute; the $3,523.50 total exceeded what was allowed for the MRIs by the statute. The language of subsection 627.736(10)(b)3. requires precision in a demand letter by its requirement of an “itemized statement specifying each exact amount”; it also allows a subsection 627.736(5)(d) health insurance claim form to be “used as the itemized statement.” A necessary conclusion of this language is that the statute requires the same precision in a subsection 627.736(5)(d) health insurance claim form as it does in a subsection 627.736(11)(b)3. demand letter. This requirement makes sense. The statute seeks to encourage “the speedy payment of medical bills arising out of an auto accident by subjecting an insurer who pays late to penalties and imposing attorney’s fees if suit is required.” Fountain Imaging, 14 Fla. L. Weekly Supp. at 614. The statute mandates that the amount at issue for a bill be specified early in the claims process. This requirement of precision in medical bills discourages gamesmanship on the part of those who might benefit from confusion and delay. The statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits. See Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 879-80 (Fla.2010).

STEVENSON and TAYLOR, JJ., concur.

      . In a second tier certiorari review of an appellate decision of a circuit court, a district court of appeal’s scope of review is narrow. As the supreme court recently wrote:
      [W]hen a district court considers a petition for second-tier certiorari review, the "inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,” or, as otherwise stated, departed from the essential requirements of law. The departure from the essential requirements of law necessary for granting a writ of certiorari is something more than a simple legal error. Rather, a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.

        Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 2010 WL 4340809 (Fla.2010) (citations omitted).

        . At the time, MRI services could "not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001,” subject to certain adjustments. § 627.736(5)(b)5., Fla. Stat. (2006). Certain accredited hospitals were able to charge up to 200% of the amounts in the fee schedule. Id.

      . As the supreme court has observed, "[t]he statutory requirements originally contained in section 627.736(11), Florida Statutes (2001), are now located in section 627.736(10), Florida Statutes (2009).” Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 874 n. 1 (Fla.2010).


author: GERBER, J.

text:
    Brett FENSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1983.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant appeals his conviction and sentence for attempted second degree murder. He raises five arguments: (1) the trial court erred in denying his motion for judgment of acquittal; (2) the trial court erred in overruling his objection to the standard jury instruction for attempted second degree murder; (3) the trial court fundamentally erred in giving the standard jury instruction for the lesser offense of attempted manslaughter; (4) the prosecutor’s improper comments during closing argument require a new trial; and (5) the trial court erred in failing to give him credit for time served. We reject the first four arguments but agree with the fifth argument. We write to address the third, fourth, and fifth arguments only.

The trial court instructed the jury on the lesser included offense of attempted manslaughter as follows, in pertinent part:

To prove the crime of attempted manslaughter, a lesser included offense, the State must prove the following element beyond a reasonable doubt: [the defendant] committed an act which was intended to cause the death of [the alleged victim] and which would have resulted in the death of [the alleged victim] except that someone prevented [the defendant] from killing [the alleged victim] or he failed to do so.

(emphasis added). The defendant now argues that instruction constitutes fundamental error because it required the jury to find the defendant intentionally attempted to kill the victim. We reject that argument pursuant to our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). There, the defendant raised the same argument. Id. at 73. We concluded that no fundamental error occurred because “the crime of attempted manslaughter requires an intent to commit an unlawful act that would have resulted in the victim’s death rather than an intent to kill.” Id. at 74-75. We also concluded that the instruction, as worded, did not confuse the jury because the jury found the defendant guilty of attempted second degree murder. Id. at 75. “Thus, the jury found the defendant intended the act that was ‘imminently dangerous’ and demonstrated a ‘depraved mind.’ ” Id.

We apply our conclusions in Williams to this case. As in Williams, we also certify the following questions of great public importance:

(1) Does the standard jury instruction on attempted manslaughter constitute fundamental error?
(2) Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So.3d 252 (Fla.2010)?

Further, as in Williams, we certify conflict with the first district’s contrary decision in Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009).

As for the prosecutor’s closing argument, the defendant identifies fifteen comments which he alleges were improper. The defendant concedes, however, that in response to those fifteen comments, he objected only twice. One objection was on the basis that the prosecutor’s comment was not supported by the evidence. We agree with the trial court’s decision to overrule that objection because the comment was a reasonable inference based on the totality of the evidence. The second objection occurred when the prosecutor directly addressed the defendant. The trial court sustained the objection, struck the comment, and admonished the prosecutor to make no such further comments. We conclude that the trial court’s response cured the prosecutor’s action.

The defendant argues that because he objected to the two comments addressed above, this court may review the remaining thirteen comments to determine whether reversible error occurred. In support, the defendant cites, among other cases, Martinez v. State, 761 So.2d 1074 (Fla.2000). There, our supreme court held that “it is appropriate to consider both the preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt.” Id. at 1082-83. Pursuant to that authority, we have considered both the preserved and unpreserved errors and conclude that any errors were harmless beyond a reasonable doubt. See Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (emphasis added in Ventura ). We also conclude that the cumulative effect of the prosecutor’s comments does not rise to the level of fundamental error. See Boyd v. State, 45 So.3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ”) (citation omitted).

The defendant correctly notes that this is not the first time we have been asked to review allegedly improper comments during closing argument by the same prosecutor in this case. In Fenster v. State, 944 So.2d 477 (Fla. 4th DCA 2006), we held that the prosecutor’s improper comments during closing argument in the first trial of this case warranted a new trial. Id. at 479. Our opinion there, however, focused on our conclusion that the prosecutor “made several comments that were unsupported by the evidence.” Id. We also observed that the defendant’s trial counsel “properly preserved this issue for appellate review by timely objecting to the improper prosecutorial remarks and by stating the specific legal ground upon which his objections were based, ie., lack of evi-dentiary support.” Id. at 479 n. 1 (citation omitted). During the second trial at issue here, though, the defendant objected to only one comment as being unsupported by the evidence, which objection the trial court properly overruled. While we would summarize many of the prosecutor’s remaining comments in the second trial as being both unprofessional and unnecessary to obtain a conviction, those comments do not rise to the level of harmful or fundamental error.

As for the defendant’s jail credit, we held in our review of the first trial that “the trial court erred in calculating the number of days [the defendant] spent in county jail before sentencing and therefore did not give him full credit for time served.” Id. at 480. We advised the trial court “to revisit this, if necessary, upon retrial.” Id. at 481. Upon retrial and conviction, however, the trial court did not give the defendant full credit for the time served at the time of his sentencing on May 7, 2007. We presume that the trial court’s failure to comply with our previous holding was inadvertent. Therefore, we remand with direction to the trial court to credit the defendant with the 1,373 days of time served at the time of his sentencing on May 7, 2007.

Conviction affirmed; remanded for correction of jail credit.

TAYLOR, J„ and PEGG, ROBERT L., Associate Judge, concur.

      . By this opinion, we do not mean to suggest that we condone the prosecutor’s unprofessional comments. We are as troubled with the prosecutor’s behavior as we are with the fact that the defendant's trial attorney did not object to those comments. As stated above, however, we decide today only whether the prosecutor's comments rise to the level of harmful or fundamental error.


author: PER CURIAM.

text:
    Jonathan M. DRUCKER, Jonathan Drucker, P.A., a/k/a Jonathan M. Drucker, P.A., and Trescott, Drucker & Schoen, P.L., Appellants, v. Charlotte DUVALL, Appellee.
    No. 4D10-4443.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Martin E. Leach of Feiler & Leach, P.L., Coral Gables, for appellant.
    John Farina of Boyes & Farina, P.A., Palm Beach Gardens, for appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court erred in denying appellants’ motion to transfer this case for improper venue. We hold that the trial court erred in denying the motion, as none of appellee’s causes of action accrued in Palm Beach County. We reverse.

Appellee, the beneficiary of a trust set up by her late husband, disputed certain payments and transfers made by the trustees, and she retained appellants to sue the trustees on her behalf. In the engagement agreement with appellants, appellee “agreed to pay [appellants] a percentage of any monies [appellants] recovered.”

Appellee later settled the suit with the trustees. The settlement agreement provided that appellee would receive a $12,000 monthly stipend, a one-time $100,000 payment, a one-time $200,000 transfer for the creation of a new trust, and a $116,500 lump sum to cover appellee’s attorney’s fees. The agreement stated that all funds would be transferred from the trust to appellants’ trust account, and appellants would thereafter give the money to appel-lee. The settlement agreement also contained a forum selection clause, stating that any “dispute concerning the performance or construction” of the agreement shall be brought in Palm Beach County. The trial court approved the settlement agreement and dismissed appellee’s suit against the trustees.

The trust thereafter disbursed the funds to appellants. In tendering payment to appellee, appellants elected to retain a percentage of all funds paid from the trust to appellee through the appellants’ trust account, citing their entitlement to a percentage of all monies recovered on appellee’s behalf. Appellants also retained the $116,500 the trust paid to appellee to reimburse her for her attorney’s fees.

Appellee responded by filing a four-count complaint against appellants in the Fifteenth Judicial Circuit, alleging claims of fraud, breach of fiduciary duty, conversion, and breach of the settlement agreement. Appellants responded by filing a motion to transfer the case to the Eleventh Judicial Circuit. Appellants filed the affidavit of appellant Jonathan Drucker, who averred that appellee executed the engagement agreement in Miami-Dade County, that all transfers into and out of appellants’ trust account occurred in Miami-Dade County, and that the settlement negotiations occurred outside of Palm Beach County. Appellee responded with legal arguments but offered no affidavits or evidence to support her claim that venue was proper in Palm Beach County.

After oral argument and limited testimony, the trial court denied the motion to transfer. The trial court addressed the fraud count alone and held that the presentation of the settlement agreement to the circuit court in Palm Beach County was an act sufficient to make the Fifteenth Judicial Circuit a proper venue for this action. The court declined to address the remaining causes of action. This appeal follows.

Pursuant to section 47.011, Florida Statutes, venue is proper “only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” “It is the plaintiffs option to select venue in the first instance, and ‘when that choice is one of the three statutory alternatives, it will be honored.’ A party contesting the plaintiffs chosen venue has the burden of clearly proving that the plaintiffs venue selection is improper.” McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 508 (Fla. 4th DCA 2010) (citation omitted). The plaintiff bears the initial burden of alleging facts in the complaint sufficient to demonstrate that the action was filed in the proper venue. Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010). When a defendant challenges the plaintiffs chosen venue “by filing an affidavit controverting the plaintiffs venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection.” Id. If the court ultimately determines that the plaintiffs chosen forum was improper, the court may transfer the case to a county where venue is proper. Fla. R. Civ. P. 1.060(b). On a motion to transfer for improper venue, “[a] trial court’s factual decisions ... are reviewed to determine whether they are supported by competent, substantial evidence or whether they are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.” PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999) (citations omitted).

The parties here agree that appellants reside or maintain their principal place of business in Miami-Dade County. Likewise, the parties agree that this dispute does not involve real “property in litigation” that could serve as a basis for venue. See Goedmakers v. Goedmakers, 520 So.2d 575, 578-79 (Fla.1988). Thus, venue is proper in Palm Beach County only if one of the causes of action accrued in that jurisdiction or if the parties are bound by a valid forum selection clause laying venue in Palm Beach County.

“For purposes of venue, a tort claim is deemed to have accrued ‘where the last event necessary to make the defendant liable for the tort took place.’ Stated another way, a tort accrues in the county where the plaintiff first suffers injury.” McDaniel, 39 So.3d at 509 (citation omitted). A tort does not accrue until both the wrongful act and the injury have occurred. Id. Appellee was not injured in this case until appellants withheld funds over and above the initial $116,500 as fees. The allegedly wrongful act of withholding appellee’s money occurred at appellants’ offices in Miami-Dade County, where all funds were received and distributed. Contrary to appellee’s claims, appellee was not harmed when the trial court approved the settlement agreement, as appellants did not exercise any authority or control over the money at that time. Moreover, the mere act of transferring money from the trust to appellants’ trust account was not, by itself, a tortious act. None of the alleged torts accrued until appellants refused to send appellee all of the money to which she believed she was entitled, and that act that took place in Miami-Dade County. The trial court’s order denying transfer to the Eleventh Judicial Circuit was error.

With respect to the breach of contract claim, we recognize that forum selection clauses in contracts are “presumptively valid” and will be enforced unless the result would be “unreasonable or unjust.” See Bombardier Capital Inc. v. Progressive Mktg. Grp., Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001) (citation omitted). This proposition is limited, however, by the “rule in Florida that ordinarily a contract cannot bind one who is not a party thereto or has not in some fashion agreed to accept its terms.” CH2M Hill Se., Inc. v. Pinellas Cnty., 598 So.2d 85, 89 (Fla. 2d DCA 1992); see also Pozo v. Roadhouse Grill, Inc., 790 So.2d 1255, 1260-61 (Fla. 5th DCA 2001) (refusing to enforce a forum selection clause against a nonparty).

The record contains no evidence that appellants were parties to or intended to be bound by the settlement agreement. The agreement imposed no duties nor conferred benefits on appellants. Though the trust agreed to pay $116,500 in attorney’s fees, those funds were to be paid to appel-lee to reimburse her for all costs incurred. Appellants were not specifically entitled to that money. While appellant Drucker signed the settlement agreement, he did so in his capacity as appellee’s counsel as required by Florida Rule of Civil Procedure 1.730(b). Appellee further offered no evidence of consent or consideration which would be necessary to show that appellants intended the settlement agreement to modify the engagement contract. See, e.g., St. Joe Corp. v. McIver, 875 So.2d 375, 381-82 (Fla.2004) (noting that a contract may be modified by a subsequent agreement only if all parties consent and the modification is “supported by proper consideration”). In sum, the forum selection clause in the settlement agreement does not bind appellants in this action.

Because venue is not proper in Palm Beach County for either the tort claims or the contract claim, we reverse the order denying appellants’ motion to transfer and remand with instructions to transfer this case to the Eleventh Judicial Circuit in and for Miami-Dade County.

Reversed and remanded with instructions.

WARNER, LEVINE and CONNER, JJ., concur.

      . In a suit against a corporation, the court will look to “where such corporation has, or usually keeps, an office for transaction of its customary business” instead of residence. § 47.051, Fla. Stat. (2010).


text:
    SHELBY HOMES AT MILLSTONE, INC., a Florida corporation, Appellant, v. Richard and Susan CULLINANE, Appellees.
    No. 4D10-289.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      James B. Boone, Weston, for appellant.
    J.L. Perez, Sebring, and Lee D. Glass-man, Fort Lauderdale, for appellees.
   GERBER, J.

The prospective buyers of a home sued the seller for breach of contract based on the seller’s failure to complete the home within twenty-four months of the contract’s execution as the contract required. The seller argued that the buyers anticipa-torily breached the contract. After a non-jury trial, the trial court rejected the seller’s defense and entered a final judgment for the buyers. We affirm the final judgment, but for reasons slightly different than those which the trial court articulated.

The seller based its anticipatory breach defense upon a letter which the buyers’ counsel sent to the seller’s counsel four months before the twenty-four month period expired. The letter stated, in pertinent part:

It is my understanding that the home is near completion and will be ready for closing shortly. I am hereby requesting a copy of the Title Commitment and all its exceptions....
Moreover, I understand that the value of the home has decreased significantly from the time of Agreement. With this in mind my client may not be able to obtain financing under the same terms and conditions as originally intended. It was represented to my clients that the home would most assuredly appreciate from the time of contract to the time of closing. This material misrepresentation induced my clients to enter into the Agreement. Your client’s fraudulent misrepresentation may render closing impossible.

(emphasis added). The buyers’ counsel went on to request, in addition to the title commitment, copies of the settlement statement; the certificate of occupancy; the warranty deed; the bill of sale; the owner’s affidavit; the survey; the current budget for the homeowners’ association; proof of the seller’s corporate status including a certificate of incumbency; the estoppel letter from the seller’s lender; and the homeowners’ association documents. The buyers’ counsel ended the letter with the statement: “Once I have had the opportunity to review the foregoing items, I will apprize [sic] you as to my client’s [sic] position.”

The seller’s counsel responded to the buyers’ counsel with a letter which stated, in pertinent part:

[The buyers’] Contract is considered to be an “all cash” contract at this point in time and therefore your declaration that the [buyers] may not be able to obtain financing is not germane to their obligation to close this purchase transaction.
You are correct that the home is near completion and the Certificate of Occupancy will be obtained very shortly. With respect to your request to receive the draft of a Settlement Statement, Seller’s conveyance documents, etc., the Contract contains no provision which obligates the Seller to transmit the same at this time. We will of course sent [sic] these types of documents for your review once we schedule a closing date and time and your client[s] confirm[] that they are in fact closing (and we receive a copy of a loan commitment and a loan title policy commitment request/order from the Buyers’ lender, if any).
If your client fails to close the purchase of the Unit as required by the Contract, Buyer[s][are] hereby advised that Buyer[s] will be deemed to be in default, and all deposits that have [been] paid will be retained by [Seller], Further, [Seller] will reserve any and all other legal remedies it may have against the Buyer[s] in connection with Buyers’] default including immediately instituting a lawsuit seeking the above described consequential damages.

(emphasis added).

The buyers’ counsel never replied to the seller’s counsel’s letter. As a result, the seller did not complete the home, obtain the certificate of occupancy, or schedule a closing date within twenty-four months of the contract’s execution. Instead, after the twenty-four month period expired, the seller completed the home and sold it to a new buyer.

The buyers then sued the seller for breach of contract based on the seller’s failure to complete the home within twenty-four months of the contract’s execution. The buyers sought as a remedy the return of their deposits. In response, the seller alleged, as an affirmative defense, that the buyers anticipatorily breached the contract by “stating they were canceling the contract.” At the non-jury trial, the seller relied on the contract’s section 8.11, which provides, in pertinent part:

If hereafter Buyer informs Seller in writing that Buyer intends to terminate this agreement, or may be unable or unwilling to close, Seller may treat same as an anticipatory breach by Buyer unless Buyer provides assurances reasonably satisfactory to Seller that Buyer has the financial ability to close and will close.... If Buyer fails to do so within 10 days after written request by Seller, Buyer shall be deemed in default. ...

(emphasis added).

The trial court rejected the seller’s defense and entered a final judgment for the buyers. The trial court found that, given the total context of the buyers’ counsel’s letter, the letter “could not be construed as an indication that the [buyers] would not close on the home and is deemed by the Court not to be an anticipatory breach.” The court also found that the seller’s counsel’s letter did not require a response from the buyers to confirm that they were going to close. The court therefore concluded that the seller breached the contract by failing to complete the home within twenty-four months of the contract’s execution.

The seller then filed this appeal, arguing that the trial court erred by finding that the buyers did not anticipatorily breach the contract and that the seller breached the contract. We employ a mixed standard of review. See Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009) (“The lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion.”) (citation omitted); Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) (“[Wjhere a trial court’s conclusions following a non-jury trial are based upon [alleged] legal error, the standard of review is de novo.”).

We disagree with the trial court’s finding that the buyers! counsel’s letter “could not be construed as an indication that the [buyers] would not close on the home” and could not be treated as an anticipatory breach. The buyers’ counsel’s letter informed the seller that the buyers “may not be able to obtain financing” and that the seller’s alleged fraudulent misrepresentation “may render closing impossible.” Kegardless of the buyers’ reasoning or possible motives, we interpret their counsel’s choice of language as falling under the contract’s section 8.11 provision that the buyers “may be unable or unwilling to close,” thereby allowing the seller to “treat same as an anticipatory breach.”

The buyers argue that we should not find their counsel’s letter as rising to the level of anticipatory repudiation because the statements contained therein were not “distinct, unequivocal, and absolute.” See Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980) (“A prospective breach of the contract occurs when there is absolute repudiation by one of the parties prior to the time when his performance is due under the terms of the contract. Such a repudiation may be evidenced by words or voluntary acts but the refusal must be distinct, unequivocal, and absolute.”). We do not need to apply that high standard to this case. Here, the parties defined an anticipatory breach in section 8.11 merely as the buyers informing the seller in writing that they “may be unable or unwilling to close” (emphasis added). The buyers’ counsel’s letter met that lower standard.

The seller’s problem here was that, in response to the buyers’ counsel’s letter, it did not treat the buyers’ counsel’s letter as an anticipatory breach as provided in the contract’s section 8.11. That is, the seller’s counsel’s response letter to the buyer’s counsel did not: (1) refer to section 8.11; (2) state that the seller was treating the buyers’ counsel’s letter as an anticipatory breach; (3) request that the buyers “provide assurances reasonably satisfactory to Seller” that the buyers had “the financial ability to close and will close”; or (4) refer to the ten-day deadline which section 8.11 imposes. Instead, the seller’s counsel’s letter stated that the seller intended to “schedule a closing date,” after which the seller expected the buyers to confirm “that they are in fact closing” and to provide “a loan commitment and a loan title policy commitment request/order from the Buyers’ lender.” The seller’s counsel’s letter further stated that if the buyers failed to close, then the seller would deem the buyers to be in default. In short, the seller ignored its own contract’s anticipatory breach remedy, and instead focused its attention on closing. However, the seller never scheduled the closing as provided in the contract’s section 3.1, which provides that “Seller will notify Buyer[s] of the time, place and date of closing.” Instead, after the twenty-four month period expired, the seller completed the home and sold it to a new buyer. By pursuing that path, the seller breached the contract by failing to complete the home within twenty-four months of the contract’s execution.

Thus, although the trial court incorrectly found that the buyers’ counsel’s letter could not be treated as anticipatory breach, the trial court ultimately reached the right result by concluding that the seller: (1) did not treat the buyers’ counsel’s letter as an anticipatory breach; and (2) later breached the contract. Therefore, we affirm. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

Affirmed.

STEVENSON and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Shauna-Ann DILLON-WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2845.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Gustavo Frances, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Shauna-Ann Dillon-Watson was charged with possession of methylenediox-ymethamphetamine (“ecstasy”) and possession of cannabis. After the trial court denied her motion to suppress, which was deemed dispositive of the case, she pled to the charges. She now appeals her convictions, arguing that the trial court erred in denying her motion to suppress. Because we conclude that the officer conducted an investigatory stop without founded suspicion, we reverse.

At the suppression hearing, Deputy Abrams of the Broward Sheriffs Office testified that he was dispatched after police received an anonymous call regarding a female selling ecstasy to her ex-boyfriend seated in a gold Maxima presently in a Wal-Mart parking lot. The deputy found a gold Maxima in the lot with a female in the driver’s seat and approached the vehicle. Appellant Shauna Dillon-Watson was seated in the car with her ex-husband. The deputy, who was in full uniform, asked what they were doing. Dillon-Watson stated that she and her ex-husband were exchanging their child, because the parking lot was a neutral spot. There was a child in a car seat in the back. The deputy then told them about the anonymous tip, and the couple laughed. The deputy called for backup and told them, “I’d like to see your ID’s and I’ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Both of them provided the officer with identification. He went to the teletype and checked their backgrounds. It took between five and ten minutes to get the teletype results. When he finished, the deputy told them that “you guys came back [with no warrants].” He then said, “Let me just take a quick look at your vehicles, and then if you guys are good, you’ll be on your way.” They said, “Okay, yeah, go ahead.” The deputy found drugs in a clear bag under the driver’s front seat where Dillon-Watson was seated, and she was charged with possession.

The deputy testified that he believed he was performing an investigative stop when he approached the vehicle. Because the tipster’s description matched Dillon-Watson, she would not have been free to leave. If Dillon-Watson had attempted to leave the scene, he would have issued a BOLO for her. And while he could not state how Dillon-Watson expressed assent to search her vehicle, he maintained that he had consent.

The state admitted at the hearing on the motion to suppress that it could not justify an investigatory stop based upon the anonymous tip. It argued, however, that the stop constituted a consensual encounter, and Dillon-Watson consented to the search of her vehicle. The defense maintained that the stop was investigatory, and Dillon-Watson did not voluntarily consent to the search. The trial court denied the motion to suppress, finding the motion dis-positive of the case. After entering her plea to the offense and being convicted, she appeals.

In Popple v. State, 626 So.2d 185 (Fla.1993), the Florida Supreme Court explained that there are three levels of police-citizen encounters. The first level is a consensual encounter where a citizen is free to leave, and thus constitutional safeguards are not invoked. The second level involves an investigatory stop where an officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. It requires a well-founded, articulable suspicion of criminal activity. The third level of encounter is an arrest which must be supported by probable cause. Dillon-Watson contends that the state failed to show that this was either a consensual encounter or a valid investigatory stop and thus the trial court erred in denying her motion to suppress. We agree.

A consensual encounter involves “minimal police contact.” Id. at 186. “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them.” Id. The citizen is free to leave. On the other hand, a person is seized in the constitutional sense when, based upon all the circumstances, a reasonable person would not feel free to leave. See G.M. v. State, 19 So.3d 973, 978 (Fla.2009). As the court said in Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004), no single factor is dispositive. “Among the factors that the court should consider in its analysis are the place and time of the encounter, the number of officers, and the words and actions of the officérs.” Id. at 587.

In Miller, three officers in uniform, who had received an anonymous tip of drug activity at a home, approached the home and encountered the appellant leaving. The officers engaged her in a discussion and told her they “needed to speak with her reference some possible drug activity.” Miller subsequently allowed police into the house and allowed a search which revealed drugs. The court applied the totality of the circumstances analysis, discussing the number of uniformed officers involved as well as the fact that the incident occurred at appellant’s home. However, the court stressed the officers’ informing the appellant that they had a “need” to speak with her regarding drug activity. The Fifth District concluded that a reasonable person could conclude that the officers’ “need” was based upon some bona fide authority to detain her, rather than a mere desire to follow up on an old anonymous tip. This convinced the court that the encounter was not objectively consensual.

Similarly, in McDonnell v. State, 981 So.2d 585 (Fla. 1st DCA 2008), the court held that a consent to search was a mere acquiescence to a show of authority where the officers came to the defendant’s home at 4:00 o’clock in the morning, told him that they were investigating an ATM theft, and asked him whether he had anything in the house regarding the theft. Although at first refusing consent to search, the defendant eventually agreed, and items in the theft were found. The court reversed the denial of the motion to suppress, finding that under the totality of the circumstances, the consent was not voluntary.

In this case, the totality of the circumstances show that the “consent” to search the vehicle was not voluntary, if there was consent at all. After receiving a specific tip, the officers located a vehicle matching the description in the tip in the parking lot of a mall. The officers were in their marked sheriffs vehicle. They got out of their vehicle and approached Dillon-Watson’s vehicle. Both were in full uniform. Deputy Abrams asked both appellant and her passenger why they were there. When they explained to him that they were exchanging their child in a neutral place, the officer told them he was investigating the tip which described both them and their vehicle. He then asked for their identification. He said, “I’d like to see your ID’s and I’ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Once he ran the identifications, which did not reveal any outstanding warrants, he then approached them again and said; “Let me just take a quick look at your vehicles, and then if you guys are good, you’ll be on your way.” The deputy said that they in some manner indicated that it was “okay.” In searching he found the drugs which formed the basis for the possession charge.

Based upon the totality of the circumstances, we cannot conclude that Dillon-Watson would have felt free to leave during this encounter. From the beginning, she was informed by two uniformed officers that they were investigating a tip of drug activity in her vehicle. This was not some vague allegation but contained details describing her vehicle and both herself and her ex-husband. They were focused on Dillon-Watson as a suspect in a criminal investigation. The officer asked for their identifications, but told them if they checked out and he could look in then-vehicle, they would be “good to go.” In other words, until he was allowed to search the vehicle, they would not be “good to go.” Any reasonable person would consider that the officer would not let her go until the officer had searched the vehicle. Dillon-Watson was seized. The consent, such as it was, was not voluntary but an acquiescence to a show of authority.

As the state conceded at the hearing before the trial court that it could not uphold the stop and search based upon the anonymous tip, we need not discuss further whether the search could be justified on that basis. See Maldonado v. State, 992 So.2d 839, 842 (Fla. 2d DCA 2008) (“On appeal, the State cannot avoid the effect of its concession in the trial court of a fact material to the disposition of [the defendant’s] motion [to suppress].”).

Concluding that the search of appellant’s vehicle was not based upon a voluntary consent, we hold that the search violated the appellant’s Fourth Amendment rights. We thus reverse and remand with directions to vacate her convictions and discharge her.

STEVENSON and GERBER, JJ., concur.


text:
    Richard ROSS, Appellant, v. Sheri Lynn ROSS, Appellee.
    No. 4D11-107.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Rehearing Denied June 16, 2011.

      Richard S. Ross, Fort Lauderdale, pro se.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The Former Husband, Richard Ross, raises five issues on appeal to challenge the trial court’s order forcing the sale of his residence to satisfy his alimony arrear-ages entered on December 8, 2010. We affirm as to the first four issues raised by the Former Husband, but find merit in his argument that the trial court’s order failed to comply with Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), because the trial court entered the Former Wife’s proposed order verbatim without allowing the Former Husband an opportunity to review it and make objections. The Former Wife concedes that she submitted the proposed order to the trial court without providing the Former Husband an opportunity to review it first. The order is ten pages long and contains findings very unfavorable to the Former Husband, including that he acted in “bad faith” and committed “fraud” upon the court. While these findings may be true, because the Former Husband was not provided an opportunity to review the proposed order, and the trial court immediately adopted it verbatim as its own order, we reverse the trial court’s December 8, 2010 order entitled “Order Re: Former Wife’s Motion to Compel Sale of Former Husband’s Residence to Satisfy Arrearages and/or For the Imposition of an Equitable Lien.” We instruct the trial court to enter a new order in this matter, one in which the Former Husband is given either the opportunity to submit his own proposed order or to object to the Former Wife’s proposed order. The trial court, as always, is free to draft its own order as well.

Reversed and remanded vnth instructions.

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    Charles W. McKINNELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3249.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Harry E. Geissinger, III, Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, POLEN and CONNER, JJ., concur.