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. 2D19-4481 ) JIMMIE LEE COLEMAN, ) ) Appellee. ) ___________________________________) Opinion filed May 7, 2021. Appeal from the Circuit Court for Sarasota County; Charles E. Williams, Judge. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellee. J. David Marsey of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for Amicus Curiae the Florida Police Chiefs Association. LABRIT, Judge. 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 (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. Factual and Procedural Background While sitting at a Sarasota bus stop one morning, Mr. Coleman opened a can of "Steel Reserve 211 Hard Pineapple beer" and poured it into a Styrofoam cup. A -2- police officer spotted Mr. Coleman with the beverage, and Mr. Coleman was arrested for violating Sarasota's ordinance against "possession of an open container on public property." Sarasota, Fla., Sarasota City Code, ch. 5, § 5-21 (2019). In a search incident to the arrest, the police found crack cocaine, a glass pipe, a burnt Brillo pad, and a push rod on Mr. Coleman's person. The State charged Mr. Coleman with possession of a controlled substance, possession of drug paraphernalia, and curbside drinking/open container violation. Mr. Coleman moved to suppress the cocaine, the pipe, and the push rod, relying on Thomas and Nelson v. State, 268 So. 3d 837 (Fla. 2d DCA 2019),1 to argue that the officers lacked legal authority to conduct a full custodial arrest and incidental search under the Sarasota ordinance, which Mr. Coleman characterized as noncriminal. The State opposed the motion, contending that the Sarasota ordinance regulates conduct that is criminal in nature and that Thomas and Nelson are distinguishable because the conduct at issue in those cases was not punishable by criminal penalties. Thus, the State maintained that Mr. Coleman was subject to a full custodial arrest and incidental search pursuant to section 901.15(1) and applicable law, including Atwater.2 The trial court held an evidentiary hearing where two police officers testified to catching Mr. Coleman drinking at the bus stop, finding the pineapple beer 1In Nelson, this court applied Thomas and held that the violation of a park hours ordinance did not support a full custodial arrest and incidental search, explaining that "the search exceeded the scope of a permissible search based upon a noncriminal ordinance violation." Nelson, 268 So. 3d at 838. 2Pursuant to article I, section 12 of the Florida Constitution, this court is "bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions." State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995). -3- can, arresting Mr. Coleman for the municipal ordinance violation, and finding the drugs and paraphernalia on Mr. Coleman thereafter. After receiving supplemental legal briefing, the court granted Mr. Coleman's motion to suppress, relying on Nelson to conclude that the custodial arrest and incidental search violated the Fourth Amendment and article I, section 12, of the Florida Constitution. The State appeals the suppression order. Analysis In reviewing suppression orders, we review factual findings for competent, substantial evidence, and "we review de novo the trial court's application of the law to the facts." Townsend v. State, 292 So. 3d 898, 900 (Fla. 2d DCA 2020). In this case, there is no challenge to the evidentiary sufficiency of the factual findings, so we review the trial court's legal conclusions de novo. See C.D. v. State, 82 So. 3d 1037, 1039 (Fla. 4th DCA 2011) ("A trial court's suppression order that turns on an issue of law is reviewed de novo."). I. Florida Law on Arrests for Municipal Ordinance Violations The trial court based its decision on Nelson, which is in turn based on Thomas. Examination of Thomas and its progeny confirms that section 901.15(1) has been interpreted to preclude custodial arrest and incidental search for violation of municipal ordinances that regulate noncriminal conduct. But neither Thomas nor any other Florida appellate court decision precludes an officer's statutory authority to make a custodial arrest for violation of an ordinance regulating criminal conduct where the officer witnesses the violation; instead, post-Thomas precedent confirms that such arrests do not violate the Fourth Amendment or the Florida Constitution. -4- a. Thomas In Thomas, the defendant was arrested for operating a bicycle that was not equipped with a bell or gong as required by a city ordinance. Thomas, 614 So. 2d at 469. Incidental to the arrest, the officer searched Mr. Thomas and found a handgun; Mr. Thomas was then charged with illegally carrying a concealed firearm. Id. He moved to suppress, arguing in relevant part that the bicycle bell ordinance was preempted by state statutes and that he could not be arrested for violating it. Id. The trial court denied the motion, and the Fifth District affirmed but certified two questions of great public importance: (1) whether a city can enforce a municipal ordinance "requiring the existence of safety equipment on a bicycle . . . by arresting a person who violates the ordinance" and (2) whether, following the repeal of section 165.19, Florida Statutes (1973), municipalities are empowered to prescribe criminal penalties for violations of prohibitory ordinances. Id. The Florida Supreme Court answered the first certified question in the negative, explaining that the legislature "has determined that traffic violations, including those relating to bicycles, should be punished by civil penalties," and "[a] city may not enact an ordinance imposing criminal penalties for conduct essentially identical to that which has been decriminalized by the state." Id. at 470. In concluding that Mr. Thomas could not be subjected to a custodial arrest for violating the bicycle bell ordinance, the court reasoned that the term "arrest" as it relates to violation of a municipal ordinance can be construed as meaning "to detain for the purpose of issuing a ticket, a summons or a notice to appear." Therefore, "arrest" as it is used in section 901.15(1) does not necessarily mean a full custodial arrest and incident search." -5- Id. at 470–71 (citation omitted) (emphasis added). The court held that when a person is charged with violating a municipal ordinance regulating conduct that is noncriminal in nature, such as in the traffic control area, section 901.15(1) only permits a person to be detained for the limited purpose of issuing a ticket, summons, or notice to appear. A full custodial arrest in such situations is unreasonable and a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution. Id. at 471 (emphasis added). In reviewing the second certified question, the court focused on "the lack of a clear statement from the legislature regarding the appropriate penalties for violation of municipal ordinances." Id. at 471. After performing a textual exegesis of classes and definitions of offenses in section 775.08, Florida Statutes (1989), the court declared that "violation of a municipal ordinance is not a 'crime,' and it is not a 'noncriminal violation' as defined in Florida Statutes." Id. at 472. But the court recognized that article VIII, section 2(b) of the Florida Constitution authorizes municipalities to "exercise any power for municipal purposes except as otherwise provided by law." Id. And the court understood that the legislature implemented this grant of authority in chapter 166, Florida Statutes, which "permit[s] municipalities to exercise any power for municipal purposes except when expressly prohibited by law." Id. The court concluded that a "city may not punish by criminal penalties conduct that the state has decriminalized" but otherwise declined to answer the certified question regarding municipal power to impose criminal penalties for ordinance violations. Id. at 473.3 3The court invited the legislature to "clarify what types of penalties it intended to allow municipalities to impose for municipal ordinance violations." Id. The year after Thomas was decided, the legislature enacted section 162.22, Florida Statutes, which provides that -6- b. Post-Thomas Case Law Over the years, Florida courts have applied Thomas to treat municipal ordinances that regulate bicycle traffic and city park hours as noncriminal and have held that a full custodial arrest and incidental search for the violation of such ordinances is constitutionally invalid. See, e.g., Booker v. State, 301 So. 3d 432, 435 (Fla. 2d DCA 2020) (city park hours case); Nelson, 268 So. 3d at 837–38 (city park hours case); C.D., 82 So. 3d at 1039 (city park hours case); L.B.B. v. State, 998 So. 2d 1217, 1218 (Fla. 2d DCA 2009) (bicycle infraction case). In those cases, the bright line was that "the search exceeded the scope of a permissible search based upon a noncriminal ordinance violation." Nelson, 268 So. 3d at 838 (citing Cuva v. State, 687 So. 2d 274, 276 (Fla. 5th DCA 1997)); see also Booker, 301 So. 3d at 435–36 (holding that the violation of a park hours ordinance that prescribed tiered fines for successive violations was "not an arrestable offense," so the search incidental to full custodial arrest was constitutionally invalid as it was "based upon [the violation of] a noncriminal ordinance"); L.B.B., 998 So. 2d at 1218 ("Based on Thomas, it is clear that a bicycle infraction is noncriminal in nature and that a person cannot be arrested for such infraction."). [u]nless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordinance may be sentenced to pay a fine, not to exceed $500, and may be sentenced to a definite term of imprisonment, not to exceed 60 days, in a municipal detention facility or other facility as authorized by law. And no party has challenged the criminal penalty prescribed by the Sarasota open container ordinance, so the question of its validity is not properly before us. See Wright v. City of Miami Gardens, 200 So. 3d 765, 781 (Fla. 2016) (Canady, J., concurring) ("Courts should not voluntarily pass upon constitutional questions which are not raised by the pleadings."). -7- In contrast, after Thomas was decided, courts have recognized that section 901.15(1) authorizes a custodial arrest for the violation of an open container ordinance. In State v. Waller, 918 So. 2d 363 (Fla. 4th DCA 2005), the Fourth District considered circumstances nearly identical to those present here. Officers observed Mr. Waller drinking a beer adjacent to a licensed establishment, an ordinance violation. Id. at 364. The officers arrested Mr. Waller and discovered cannabis on his person, and then they searched the vehicle where Mr. Waller was drinking the beer and discovered more cannabis. Id. Mr. Waller moved to suppress, and the State argued that the officers' observation of the ordinance violation resulted in a valid custodial arrest which authorized the search of Mr. Waller and his vehicle. Id. at 365. The trial court agreed as to the search of Mr. Waller but suppressed the evidence found in the vehicle search. Id. The Fourth District reversed, holding that—pursuant to section 901.15(1)—Mr. Waller was "lawfully subject to arrest" for "violating an alcohol ordinance in the presence of three detectives." Id. at 366. The court further explained that "[a]rrest for an ordinance violation, even though it is neither a felony nor misdemeanor arrest, can be the basis for a lawful search of a vehicle incident to that arrest." Id. at 367. Thus, the court concluded that the searches of Mr. Waller's person and vehicle were authorized as "an incident to that lawful arrest." Id. at 368 (citing New York v. Belton, 453 U.S. 454, 460 (1981), and Thornton v. United States, 541 U.S. 615, 617 (2004)). See Horsley v. State, 734 So. 2d 525, 526 (Fla. 2d DCA 1999) (noting, without addressing Thomas, that an officer may conduct a full, custodial arrest when a suspect violates an open container ordinance "in the presence of the officer"); see also Lennear v. State, 784 So. 2d 1181, 1182 (Fla. 5th DCA 2001) (stating that if defendant's conduct violated -8- open container ordinance, his "detention and the subsequent discovery of the cocaine during his detention is lawful and does not offend the fourth amendment"). In this context, this court and others have ruled that the penalty imposed for an ordinance violation is determinative of the propriety of a custodial arrest and incidental search. The Fourth District has concluded that "jail time" and "incarceration" are "criminal penalt[ies]" while "fines" are not. C.D., 82 So. 3d at 1039. This court has explained that full custodial arrests are not allowed when "an ordinance . . . authorizes only the issuance of a citation or summons and complaint." Booker, 301 So. 3d at 435. And in Cuva, the Fifth District held that the arrest and incidental search of an eighteen year old for violating a minor curfew ordinance was invalid because the ordinance authorized criminal penalties only for commercial establishments. Cuva, 687 So. 2d at 276–77; see also Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002) (stating that a noise ordinance "is a criminal law" because "[t]he prospect of incarceration plainly makes violating" the ordinance a crime); accord McNally v. Eve, No. 8:06-CV-2310-T- 23EAJ, 2008 WL 1931317, at *6 (M.D. Fla. May 2, 2008) (concluding that because a Sarasota noise ordinance "establishes a possible penalty of sixty-days imprisonment, it qualifies as a criminal law under Lee"). Most recently, the Fifth District determined that an open container ordinance, carrying a penalty of sixty-days imprisonment and a five- hundred-dollar fine, was criminal in nature and authorized a full, custodial arrest and incidental search. Hull v. State, 46 Fla. L. Weekly D745, D746 (Fla. 5th DCA Apr. 1, 2021). In short, municipal ordinances are criminal in nature if they authorize criminal penalties such as incarceration and noncriminal in nature if they do not. The Sarasota open container ordinance regulates criminal conduct because it establishes a possible -9- penalty of sixty-days imprisonment. See Sarasota, Fla., Sarasota City Code, ch. 1, § 1-11 (2019); Sarasota, Fla., Sarasota City Code, ch. 5, 5-21 (2019). II. This Case Turning to the case at hand, the trial court ruled that the full custodial arrest and incidental search of Mr. Coleman violated the Fourth Amendment because "the facts and circumstances [in this case], including the Sarasota municipal ordinance at issue, r[an] parallel to the facts in Nelson." We disagree. Mr. Nelson violated a municipal ordinance banning his presence in a city park after hours while Mr. Coleman violated a municipal ordinance against open containers and drinking on public property. And the Nelson court relied primarily on the Fourth District's opinion in C.D., which found a similar park hours ordinance to be noncriminal in nature. See Nelson, 268 So. 3d at 839 (stating that C.D. "is directly relevant to the park hours ordinance in this case"); C.D., 82 So. 3d at 1039 ("The ordinance did not provide for any penalty, let alone incarceration."). Because the Sarasota open container ordinance is different in kind and severity than the park hours ordinance at issue in Nelson, Nelson does not control this case.4 Likewise, Thomas's holding on "municipal ordinance[s] regulating conduct that is noncriminal in nature" does not apply here. Thomas, 614 So. 2d at 471 (emphasis added); see Hull, 46 Fla. L. Weekly at D746 ("[N]othing in Thomas precludes 4Nelson does not indicate what penalty, if any, was prescribed for the park hours ordinance at issue in that case, and the Nelson court described the ordinance as "noncriminal." Nelson, 268 So. 3d at 838. In the trial court, Mr. Coleman's counsel argued that the ordinance in Nelson authorized potential jail time, but he did not introduce the ordinance into evidence or request the court to judicially notice it. Because there is no record evidence in this case regarding the ordinance at issue in Nelson, this issue does not constitute an alternate basis for affirmance under the tipsy coachman doctrine. See Robertson v. State, 829 So. 2d 901, 906–07 (Fla. 2002). - 10 - a custodial arrest for a violation of an ordinance that is criminal in nature." (emphasis added)). The police officers did not violate the Fourth Amendment or the Florida Constitution by conducting a full, custodial arrest and incidental search of Mr. Coleman. See Waller, 918 So. 2d at 366; Horsley, 734 So. 2d at 526; Hull, 46 Fla. L. Weekly at D746. Relying on the preemption analysis in Thomas, Mr. Coleman argues that section 316.1936, Florida Statutes (2019), preempts Sarasota's open container ordinance. More specifically, he contends that section 316.1936 prohibits open containers in motor vehicles but decriminalizes a violation of the offense. Thus, according to Mr. Coleman, Sarasota cannot impose a criminal penalty for violating an open container ordinance since the need to prohibit open containers in or around motor vehicles "is more pressing than the need to prohibit" open containers on public property. But as Mr. Coleman properly conceded, no Florida statute "specifically prohibit[s] open containers on a right of way" like the Sarasota ordinance. Section 316.1936 does not expressly or implicitly preempt the Sarasota ordinance. See D'Agastino v. City of Miami, 220 So. 3d 410, 420–21 (Fla. 2017) (discussing, at length, express and implied preemption of municipal ordinances). Section 316.1936 regulates possession of open containers "in or on vehicles" while Sarasota's ordinance regulates possession of open containers "on public property." § 316.1936, Fla. Stat.; Sarasota, Fla., Sarasota City Code, ch. 5, § 5-21 (2019). Because the ordinance and the statute can coexist easily, the ordinance is not expressly preempted. See Sarasota All. for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010) ("In cases where the Legislature expressly or specifically preempts - 11 - an area, there is no problem with ascertaining what the Legislature intended."). Nor has Mr. Coleman pointed to a "pervasive" legislative scheme evidencing implied preemption. See id.; see also D'Agastino, 220 So. 3d at 421 ("[I]mplied preemption occurs when the state legislative scheme is pervasive and the local legislation would present a danger of conflict with that pervasive scheme."). Lastly, for the same reason the Florida Supreme Court ultimately held that suppression was erroneous in Thomas, it was erroneous here. "The arrest was made in reliance on the city ordinance and thus falls within the rule" established in Michigan v. DeFillippo, 443 U.S. 31 (1979). Thomas, 614 So. 2d at 471. In other words, the evidence is admissible under the good faith exception because the potential "conflict between this ordinance and the state statute involves a complex legal analysis" such that the ordinance "was presumptively valid." State v. Smith, 584 So. 2d 145, 147 (Fla. 2d DCA 1991) (holding that another Sarasota ordinance specific to possessing an open container "in a motor vehicle while the motor vehicle was on a public way" was preempted by section 316.1936 (emphasis added)). For these reasons, we reverse the suppression order and remand for further proceedings. See State v. Vazquez, 295 So. 3d 373, 383 (Fla. 2d DCA 2020). Reversed and remanded. NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. - 12 -