FL6: Search incident of backpack and fanny pack removed before stop was unreasonable

Defendant was stopped on a bicycle. His backpack and fanny pack were removed from him and placed on the hood of the police car. The search incident doctrine did not apply to them under Gant. They were out of his reach. Jean v. State, 2023 Fla. App. LEXIS 6111 (Fla. 6th DCA Aug. 31, 2023).

The entry into defendant’s house without a warrant was unreasonable. Defendant’s consent, however, was attenuated from the entry and was valid. There was a lack of exigency: “Accordingly, the Court concludes, given the officers’ lack of any indications that Colbert was aware of police presence and was at risk of destroying evidence, that the officers did not have a reasonable basis to believe that Colbert would destroy evidence before they could obtain a warrant to search Apartment A.” The entry was limited: “Here, officers similarly did not conduct a full search of Apartment A, including looking under mattresses and in cupboards, until after Colbert had given consent to search the entire apartment. Accordingly, the Court concludes that, assuming that the officers on the scene had a reasonable basis to believe that Colbert was going to destroy evidence, the initial search’s scope was appropriately limited in nature.” A protective sweep was also improper. United States v. Colbert, 2023 U.S. Dist. LEXIS 155118 (D.N.M. Sep. 1, 2023).*

The trial court did not abuse its discretion in denying a second motion to suppress as untimely where defendant was represented by counsel throughout, and there was even a little discovery delay. State v. Lanier, 2023-Ohio-3088 (7th Dist. Aug. 31, 2023).*