An open container in violation of municipal ordinance justifies a search incident in Florida. State v. Coleman, 2021 Fla. App. LEXIS 6497 (Fla. 2d DCA May 7, 2021):
At first blush, this case presents a fairly straightforward question of Fourth Amendment jurisprudence: can a police officer arrest and then search a person violating a municipal ordinance in front of him? Discerning the answer is less straightforward. Our legislature has authorized officers to “arrest a person without a warrant” if a person violates “a municipal or county ordinance” in an officer’s presence. § 901.15(1), Fla. Stat. (2019). And United States Supreme Court precedent establishes that when an officer lawfully arrests a person for committing a criminal offense—no matter how minor—the officer may effectuate a full custodial arrest without violating the Fourth Amendment. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001). But the Florida Supreme Court has held that a full custodial arrest and incidental search violates the Fourth Amendment “when a person is charged with violating a municipal ordinance regulating conduct that is noncriminal in nature.” Thomas v. State, 614 So. 2d 468, 471 (Fla. 1993).
This case, then, turns on the question of whether the city of Sarasota’s “open container” ordinance regulates conduct that is criminal or noncriminal in nature. If it is the former, the search at issue in this case was lawful; if it is the latter, the search was invalid. Because a violation of the ordinance is punishable by criminal penalties including up to sixty days in jail, it regulates conduct that is criminal in nature. We therefore hold that the police had the authority to arrest and search Mr. Coleman, and we reverse the suppression order.