Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA ) ) Appellant, ) ) v. ) Case No. 2D18-1973 ) KEION BROOKINS, ) ) Appellee. ) ___________________________________) Opinion filed February 28, 2020. Appeal from the Circuit Court for Hillsborough County; Barbara Twine Thomas, Judge. Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee. BADALAMENTI, Judge. The State appeals an order granting Keion Brookins's motion to suppress a firearm seized during the warrantless search of his person following a lawful traffic stop, arguing that the search was constitutionally permissible as a search incident to arrest. We agree and reverse. The evidence adduced at the hearing on the motion to suppress revealed the following facts: At approximately 6 p.m., Officers Conrad and Miller arrived at an intersection following a call of suspected drug activity taking place at that location. They received a tip that there were "six males selling drugs in or around that intersection." The officers arrived in an unmarked police vehicle and were dressed in plain clothes. Upon their arrival, they observed a white pickup truck parked against traffic with two men seated inside. The man seated in the driver's seat was later identified as Mr. White, and the man in the passenger's seat was later identified as the defendant. The passenger's door was open, and there were two men standing next to it. Officer Conrad testified that he and Officer Miller had grounds to issue a traffic ticket for a parking violation because the truck was parked facing the opposite direction of traffic. Once the officers exited their vehicle to approach the truck, the two men standing outside the truck walked away saying, "It's vice, it's vice." Officer Miller approached the driver's door while Officer Conrad approached the passenger door. As they approached, they recognized the smell of burnt marijuana emanating from the truck. Both officers testified that they had training and experience in detecting marijuana by smell. Officer Conrad testified that the passenger door was shut as he approached it. He identified himself as police and asked Brookins to open the door. Brookins did not open the door. Instead, he responded by placing his hands in the air. Mr. White also refused to open the door, despite Officer Miller's instruction to do so. Because none of the truck's occupants had complied with the officers' requests to open the doors, Officer Miller left the area of the -2- truck and moved the police vehicle to block the truck from a possible escape. At this point, he also called for backup assistance. Brookins eventually opened the door. Once the door opened, smoke emanated out of the truck. Officer Conrad ordered Brookins out of the truck, placed him into handcuffs, and patted him down to search for weapons. The patdown consisted of a "very quick feel of the outside of his pants, his pockets, front and back pockets and then down his legs." Officer Conrad admitted he did not go as "in depth as [he] normally would [when performing a patdown]." Officer Conrad did not find anything on Brookins's person during that "very quick" patdown search. He then passed off Brookins to Officer Lteif, who had just arrived as backup. Officer Conrad asked Officer Lteif to search Brookins because he had only done a "very quick" patdown after Brookins was handcuffed. Officer Conrad testified that he believed they had probable cause for the search based upon the smell of burnt marijuana emanating from the truck. At this point, Officer Miller searched the truck and found marijuana. He found a "burnt roach" located on an ashtray and observed marijuana flakes on the floorboard of the driver's and passenger's sides. Officer Miller also searched Mr. White, the driver, who had indicated that "they had just been smoking marijuana" but did not take ownership of any of it. The search revealed Mr. White had marijuana flakes on his clothes. While Officer Miller searched the truck, Officer Lteif began to search Brookins. Officer Lteif testified that prior to the search, he was able to smell the odor of burnt marijuana emanating from Brookins's clothing, an odor he had training and experience to recognize. During Officer Lteif's search, a firearm fell to the ground from Brookins's person. -3- Brookins was subsequently arrested and charged with the offenses of carrying a concealed firearm and resisting an officer without violence. He filed a motion to suppress, arguing that the odor of burnt marijuana emanating from the truck did not provide probable cause to search his person. At the hearing on the motion, defense counsel argued that "[t]here was nothing connecting Mr. Brookins to the contraband that was found within the vehicle or anything that was found on Mr. White." The trial court agreed, ruling that "there was no basis to search Mr. Brookins based on marijuana." It reasoned as follows: "The marijuana gave rise to the right to detain, gave rise to the right to investigate, gave rise to the right to search the vehicle or all of those things, but it had not yet evolved to a particularized suspicion as to Mr. Brookins." The trial court suppressed the evidence. The State now timely appeals the trial court's written order granting the motion to suppress. On appeal, the only search at issue is Officer Lteif's search of Brookins following the traffic stop of the pickup truck in which Brookins was a passenger. For the reasons that follow, we conclude that the trial court erred in suppressing the firearm that fell from Brookins's person during Officer Lteif's search incident to the arrest of Brookins. The trial court's order is subject to a mixed standard of review. We accord the trial court's rulings a presumption of correctness with regard to the determination of historical facts. See Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). However, "mixed questions of law and fact that ultimately determine constitutional issues" are subject to independent review. Id. Both the Fourth Amendment to the United States Constitution and the Florida Constitution prohibit unreasonable searches and seizures. Amend. IV, U.S. -4- Const.; art. I, § 12, Fla. Const. Warrantless searches are per se unreasonable, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). One of those exceptions is the search-incident-to- arrest exception. Preston v. United States, 376 U.S. 364, 367 (1964). "A search incident to a lawful arrest can precede [an] arrest so long as the officer has knowledge of sufficient facts to constitute probable cause to arrest a defendant prior to the search." Baggett v. State, 562 So. 2d 359, 361 (Fla. 2d DCA 1990). Accordingly, in determining whether the search-incident-to-arrest exception applies here, we must determine whether the officers had probable cause to arrest Brookins prior to the search and whether the firearm at issue was discovered within the permissible scope of the search. "[A] law enforcement officer may arrest without warrant any person who the officer has probable cause to believe is violating the provisions of [chapter 893] relating to possession of cannabis." § 893.13(6)(e), Fla. Stat. (2017). "Probable cause 'exists where "the facts and circumstances within their (the officers') knowledge . . . [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.' " State v. Jennings, 968 So. 2d 694, 696 (Fla. 4th DCA 2007) (alteration in original) (quoting State v. Betz, 815 So. 2d 627, 633 (Fla. 2002)). The elements of the criminal offense of possession of marijuana are (1) the suspect's knowledge of the presence of the contraband and (2) his ability to maintain control over it or reduce it to his possession. Spataro v. State, 179 So. 2d 873, 877 (Fla. 2d DCA 1965). Our supreme court has observed that the odor of burnt marijuana emanating from a vehicle—like we have here—provides probable cause to search each -5- of the vehicle's occupants. See Betz, 815 So. 2d at 633. Prior to Betz, this court reached the same conclusion. See Dixon v. State, 343 So. 2d 1345, 1346, 1348-49 (Fla. 2d DCA 1977) (upholding constitutionally of a search incident to arrest because the smell of burning marijuana and sight of smoke emanating from a vehicle in which the defendant was a passenger supplied the officer with probable cause to search the defendant). Our sister courts agree. See, e.g., State v. K.V., 821 So. 2d 1127, 1128 (Fla. 4th DCA 2002) ("[T]he odor of burnt marijuana 'unquestionably' provides probable cause not only to conduct a stop of a vehicle, but also to search the entire passenger compartment and each of its occupants." (quoting Betz, 815 So. 2d at 633)); State v. Koch, 455 So. 2d 492, 494 (Fla. 1st DCA 1984) ("There is no dispute that two of the officers detected the odor of burning cannabis. This was probable cause for the arrest. The lawful stop and probable cause to arrest validated the search." (citation omitted)). This is because "[t]he mere possession of marijuana is illegal." State v. Wells, 516 So. 2d 74, 75 (Fla. 5th DCA 1987). "The smell of marijuana and sight of smoke emanating from an automobile constitute probable cause to believe that both elements [of the offense of possession of marijuana] are satisfied as to all of the occupants of the vehicle and that each occupant had actual or constructive possession of marijuana." Dixon, 343 So. 2d at 1348. So, "[w]hen a police officer who knows the smell of burning marijuana detects that odor emanating from a vehicle, or from a person who has recently exited a vehicle, he has probable cause to believe a crime has been committed and that such person has committed it." Wells, 516 So. 2d at 75. In this case, it is undisputed that the officers detected the smell of burnt marijuana emanating from the truck's interior. There is also no dispute that Officer -6- Conrad observed smoke emanating from the truck when Brookins opened the door and that Officer Lteif smelled marijuana emanating from Brookins's clothing shortly after he exited the truck. It is also undisputed that the officers each had experience and training in recognizing the odor of burnt marijuana. Those factors provided the officers with probable cause to believe that Brookins, as an occupant of the vehicle, had "violat[ed] the provisions of [chapter 893] relating to possession of cannabis." § 893.13(6)(e); see also Betz, 815 So. 2d at 633; Dixon, 343 So. 2d at 1348; Jennings, 968 So. 2d at 696; K.V., 821 So. 2d at 1128; Wells, 516 So. 2d at 75. Accordingly, we conclude that Officer Lteif had probable cause to conduct a warrantless search of Brookins and that the search was constitutionally authorized as a search incident to arrest. Despite the foregoing authority, in determining that probable cause did not support Officer Lteif's search of Brookins, the trial court emphasized that there was no particularized suspicion for the search because marijuana had already been found inside the truck and on the driver's—Mr. White's—person. The trial court explained: "Ultimately, the contraband found was marijuana. It didn't have anything to do with Mr. Brookins." But at the time of the search, the officers did not have the benefit of the trial court's hindsight. The officers could not have known that the marijuana they found inside the truck and on Mr. White's person was the only marijuana they would find. They could not have known whether there was any marijuana on Brookins's person. It would have been reasonable to think they would find marijuana given their observation of the smoke emanating from the truck, the smell of marijuana, and Mr. White's admission that he and Brookins had been smoking marijuana inside the truck. That marijuana had already been found prior to Officer Lteif's search of Brookins's person is -7- therefore irrelevant to the determination of whether the search was constitutionally permissible. See Jennings, 968 So. 2d at 696–97 (rejecting a similar argument). That Brookins was not arrested for or charged with possession of marijuana is of no consequence to the analysis here. It is settled law that a search incident to arrest can occur before the arrest so long as the officer has probable cause to arrest the defendant. Baggett, 562 So. 2d at 361. That the search can happen beforehand "is to the advantage of the person searched" because "if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous," then an arrest presumably would not follow. See Dixon, 343 So. 2d at 1347 (quoting People v. Simon, 290 P.2d 531, 533 (Cal. 1955)). Here, although the search of Brookins's person did not turn up evidence that he possessed marijuana, it was legally justified because the circumstances surrounding the search provided probable cause to believe that he was in either actual or constructive possession of marijuana. Having concluded that the officers had probable cause to conduct the search, we next consider whether the firearm at issue was discovered within the permissible scope of the search. A search may be made of the arrestee and any area from which the arrestee might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763 (1969). The undisputed testimony at the suppression hearing was that during Officer Lteif's search of Brookins, a firearm fell to the ground from his person. With this undisputed testimony, we readily conclude that the firearm was discovered within the area of a permissible scope of search and certainly within an area Brookins might gain possession of the firearm. See id. -8- In conclusion, the trial court erred by suppressing the evidence because the search was constitutionally authorized as a search incident to arrest. We further conclude that the firearm which fell to the ground from Brookins's person was discovered within the permissible scope of the search of his person. Because the suppression issue was dispositive, the trial court dismissed Brookins's charges for carrying a concealed firearm and resisting an officer without violence. We therefore reverse the suppression and dismissal orders and remand for reinstatement of the charges. Reversed and remanded with directions. SLEET and SALARIO, JJ., Concur. -9-