Expectations of Privacy and Your Car
By Jaime E. Suarez
In today’s society, a person’s automobile is very personal - people conduct business in their car, telecommute in their car, visit with friends in their car … the examples are endless. As a result, Floridians have an expectation of privacy associated with their automobile. You may be surprised what the law in Florida actually is.
In the case, State v. Folks1 the facts were as follows:
The Defendant was sitting in the driver's seat of her car which was parked in the city parking lot of a public park. Police officers saw her drinking from a can of beer as she sat in her car, so they approached the Defendant and asked her to exit the car based on a municipal ordinance that prohibits the consumption of alcoholic beverages upon public premises.
As she exited the car, the Defendant took a small white object from the center console, dropped it on the ground, and placed her foot on it. One of the police officers saw the object drop to the ground and asked the Defendant to remove her foot. When she complied, the officer found rock cocaine, and the Defendant was arrested for possession of narcotics.
In an attempt to have the arrest declared improper or illegal, the Defendant filed a Motion to Suppress. At the Motion to Suppress hearing, the Defendant argued that the police officers had no authority to arrest her based on the city ordinance against public intoxication because she (the Defendant) was drinking the beer in her car and not in a public place.
However the state argued that the arrest was proper because the Defendant’s car was in a public place and thus, as she sat in the car drinking alcohol, she was in violation of the ordinance. The trial court found that the car did not constitute a “public premise” and entered its order granting the motion to suppress.
The case was appealed and the following analysis was conducted by Florida’s Fourth District Court of Appeal. On appeal, the state asserted that the trial court was mistaken in its decision that the Defendant was not in a public place, for purposes of the ordinance, when she was sitting in her car in the parking lot of a public park.
On appeal, Florida’s Fourth District Court of Appeal started its analysis by outlining the ordinance at issue. Pompano Beach Ordinance 133.11(A) provides:
It shall be unlawful for any person to consume any intoxicating beverages, regardless of alcoholic content, upon all unlicensed public premises including streets, sidewalks, public beaches or other public places within the city.2
On appeal, the Defendant identified Florida Statute section 810.011 which defines a motor vehicle as a conveyance. Specifically the section states in pertinent part: "Conveyance" means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and "to enter a conveyance" includes taking apart any portion of the conveyance.”3 (emphasis added). The Defendant then addressed Florida Statute section 810.02(1) which defines burglary of a conveyance.4 The defendant concluded on appeal that a car is a closed private area not open to the public, and therefore, not subject to the ordinance.
In response, the state responded that “it would be illogical to interpret the ordinance to disallow drinking in a public park but to allow drinking in that park as long as the drinker is sitting in a car.”5
Florida’s Fourth District Court of Appeal stated in its analysis that “[i]n relation to searches, courts have found that there is a diminished expectation of privacy in an automobile.”6 Furthermore, in United States v. Czeck, the United States Eight Circuit found that a warrantless arrest may be made where the arrestee is in a car in a public place.7 The Eight Circuit reasoned that a warrantless arrest in a public place is valid if the arresting officer has probable cause.8
The Fourth District then recognized that “[s]everal courts have upheld, without extensive discussion, arrests of suspects who were in automobiles located in public places.” Moreover, “even though Czeck cites no authority for the proposition that a car that is in a public place is not itself a ‘public place’ […], based on the reasoning of other Fourth Amendment decisions, the Fourth District stated that they believed the opposite is true: “when a suspect is in a car that is in a public place (and the suspect is thus at least partially visible to the public), an officer with probable cause may arrest the suspect without a warrant.”9 In support of its ruling, the Fourth District Court of Appeal identified United States Supreme Court and other federal court cases supporting its decision. These cases included California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 1990-91, 114 L.Ed.2d 619 (1991) (which explained the scope of permissible warrantless searches of cars); United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) (which recognized “the diminished expectation of privacy which surrounds the automobile”); United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976) (stating that the suspect standing in the doorway of his home is in a public place); United States v. Hoyos, 892 F.2d 1387, 1393-94 (9th Cir.1989) (holding that the looking over backyard fence at police is in public place), cert. denied, 498 U.S. 825, 111 S.Ct. 80, 112 L.Ed.2d 52 (1990); United States v. Varkonyi, 645 F.2d 453, 457-58 (5th Cir. Unit A May 1981) (holding that the suspect visible through business yard fence is in public place).10
Finally in its analysis, Florida’s Fourth District Court of Appeal recognized and agreed with the rationale used in North Carolina; that is, that intentional indecent exposure while sitting in an automobile in a public place constitutes exposure in a public place, as prohibited by law.11 The Fourth District then reversed the trial court’s order of suppression, concluding that the trail court had erred as a matter of law when it determined that the Defendant was in a private place when she was seated in her automobile parked in a public lot drinking a beer.
Police Officers, Flashlights, and Expectations of Privacy
In another case, two plainclothes police officers were patrolling motel parking lots in an unmarked car to check for vehicle burglaries.12 The police officers observed the Defendant’s automobile parked with the windows down and the T-tops removed.13 The police officers observed two people were in the front seat bent over, and two people in the back seat. One of the police officers approached the driver to obtain identification, and the second police officer approached the passenger side of the car and shined his flashlight inside.14 He observed a mirror with white powder on the floorboard of the passenger side beneath appellant's feet. The officer requested that the appellant hand him the mirror. The residue of the powder tested positive for cocaine. The trial court denied the Defendant’s motion to suppress the cocaine.
On appeal, the Florida’s Fifth District Court of Appeal concluded that the use of the flashlight did not violate the Defendant’s Fourth Amendment rights and that the Defendant “had no legitimate expectation of privacy while in a parked automobile in a parking lot to which the public had access, as to illegal activities which would have been as visible to a private security guard or a police officer as to a private citizen.”15 Based on this, the Fifth District concluded that the trial court was correct in denying the motion to suppress. Since this decision, other Florida courts have also agreed with this case.16
In conclusion, despite how personal your automobile is to yourself, there is a diminished expectation of privacy associated with it. This is even more so when the car is located or parked in a public place. For example, if your car is parked in a public place after dark, police officers are allowed to shine their flashlights into your car, just as a private security guards or private citizens can. What the police officers then observe may give them probable cause to conduct a search of your automobile and its contents.
1 The outline of facts is from State v. Folks, 723 So.2d 369-370 (Fla. 4th DCA 1998).
2 See State v. Folks, 723 So.2d at 370.
3 See State v. Folks, 723 So.2d at 370 (quoting Florida Statute section 810.011).
4 Florida Statute section 810.02(1) Burglary states in pertinent part:
(1)(a) For offenses committed on or before July 1, 2001, "burglary" means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. (b) For offenses committed after July 1, 2001, "burglary" means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or 2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance: a. Surreptitiously, with the intent to commit an offense therein; b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.
5 See State v. Folks, 723 So.2d at 370.
6 Id. (citing United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977)).
7 Id. (citing United States v. Czeck, 105 F.3d 1235, 1238 (8th Cir.1997)).
8 Id. (citing United States v. Czeck, 105 F.3d 1235, 1238 (8th Cir.1997) (citing United States v. Watson, 423 U.S. 411, 418, 423-24, 96 S.Ct. 820, 825, 827-28, 46 L.Ed.2d 598 (1976)).
9 See State v. Folks, supra 723 So.2d at 370.
11 See State v. Folks, supra 723 So.2d at 370 (citing State v. Streath, 73 N.C.App. 546, 327 S.E.2d 240, 244 (N.C.Ct.App.1985); see also State v. King, 268 N.C. 711, 151 S.E.2d 566, 567 (N.C.1966)).
12 See Roberts v. State, 566 So.2d 848, 849 (Fla. 5th DCA 1990).
15 See Roberts v. State, supra 566 So.2d at 850 (citing Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).
16 See, e.g. State v. Echevarria, 937 So.2d 1276, 1278+, 31 Fla. L. Weekly D2488, D2488+ (Fla. 4th DCA 2006); State v. Green, 943 So.2d 1004, 1005, 31 Fla. L. Weekly D3113, D3113 (Fla. 2d DCA 2006); and State v. Futch, 715 So.2d 992, 994, 23 Fla. L. Weekly D1553, D1553 (Fla. 2d DCA 1998).
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