Rivera v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

DYLAN JOSEPH RIVERA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2023-2053

November 8, 2024

Appeal from the Circuit Court for Hillsborough County; Robin F. Fuson,

Judge.

Howard L. Dimmig, II, Public Defender, and Caroline Joan S. Picart,

Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and James A. Hellickson,

Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Dylan Rivera appeals from his judgment and sentences for

trafficking in fentanyl, possession of a controlled substance with intent to

sell or deliver, and resisting an officer without violence. We reverse and

remand with instructions to discharge Rivera.

I. Background

Rivera was charged in count 1 with trafficking in fentanyl (28

grams or more) based on his possession of a fentanyl derivative as

identified in section 893.03(1)(a)62, Florida Statutes (2022), and in count

2 with possession with intent to sell or deliver methamphetamine. 1 The

methamphetamine was found in a closed, zippered bag on Rivera's

person, and 28.4 grams of a fentanyl derivative were found in a black

lockbox on Rivera's person.

Following the denial of motions to suppress and dismiss, Rivera

entered a guilty plea to the charges against him. He now appeals from

his convictions and sentences, having reserved the right to challenge the

dispositive order denying his motions. See Fla. R. App. P.

9.140(b)(2)(A)(i).

The following facts were adduced at the hearing on Rivera's

motions to suppress and dismiss.2 On August 18, 2022, law

enforcement, with the assistance of a first-time confidential informant

who had been arrested earlier that same day, set up a fentanyl buy with

a person the CI referred to only as "Nephew." Detective Burnham was

asked how he became involved with the case, and he testified that he

"was speaking with a confidential source who advised that he or she was

able to order an amount of fentanyl from a suspect that they knew as

Nephew." Detective Burnham was then asked, "And to your knowledge

1 The information provided that the methamphetamine for which

Rivera was charged is as described in subsections 893.03(1)(c), (2)(c)1,

(2)(c)2, (2)(c)3, (2)(c)6, (2)(c)7, (2)(c)8, (2)(c)9, (2)(c)10, (3), or (4), Florida

Statutes (2022).

2 The suppression hearing at issue in this case also covered a

related case. See Rivera v. State, 387 So. 3d 1190 (Fla. 2d DCA 2024)

(table decision). This appeal addresses only the case identified by the

trial court in its order as the "Art's Lounge" case, and it preceded in time

the related case, the "Cracker Barrel" case.

2

who is Nephew?" to which he responded, "Dylan Rivera." Detective

Burnham did not testify as to how he knew Nephew to be Rivera.

Detective Burnham otherwise testified that the CI arranged a buy with

Nephew to occur at Art's Lounge and that Nephew said "about forty

minutes."

Detective Sequeira testified that he became involved with the case

when Detective Burnham held a briefing about an undercover narcotic

operation. At the briefing, "a[n] image of Mr. Rivera was presented" and

"the deal was said for 2 grams of fentanyl." Detective Sequeira did not

explain why Rivera's image was shown or why it was believed that Rivera

was Nephew.

Detective Sequeira was tasked with surveillance and apprehension

of Rivera. After watching Rivera walk into Art's Lounge and sometime

later walk out and toward law enforcement's covert vehicle, Detective

Sequeira "instructed Corporal Dahl at the time hey, once he passes the

rear of the covert vehicle we're going to exit out, announce ourselves, and

detain him." Both men were wearing tactical vests with "Sheriff" on them

when they exited the vehicle. Corporal Dahl announced himself and

directed Rivera to stop. Detective Sequiera testified that Rivera ran and

that both Corporal Dahl and Detective Sequiera yelled, "Sheriff's office,

stop." Detective Sequiera then "saw [Rivera] drop a cell phone and then

saw him, like, a bag drop out of his hand, small little baggie." Detective

Sequiera said nothing more about the baggie.

When asked what the basis for detaining Rivera was, Detective

Sequiera responded: "Based on the communication he was having with

the undercover detective [sic] arranging a transaction. Responding to the

location of where he agreed to deliver said substance. Arriving at the

location." Detective Sequiera further testified that Rivera was under

3

arrest when officers caught him and that it was standard operating

procedure to search Rivera's person after advising Rivera that he was

under arrest.3 Rivera was searched, and the closed containers found on

his person were removed.

Detective Stearns testified that "[a] narcotics transaction was

arranged with the subject named Nephew, who later was identified as

Dylan Rivera." He provided no further details regarding the

identification. Detective Stearns was not on scene when the signal to

arrest was given;4 when he arrived at Art's Lounge, Rivera was already in

custody. Detective Stearns noted that Rivera was handcuffed, that a

black lockbox was in his pocket, and that a lighter leash was around his

waist. Detective Stearns testified that based on Rivera being in custody

he opened the lockbox and found a significant amount of a white

substance later confirmed to be fentanyl.5

Detective Dillon testified next and explained that she became

involved with the case during the briefing held after the CI made the

phone call to Nephew. During that briefing, Detective Dillon learned

"that a source of supply was mentioned as Nephew, who was later

identified as Dylan Rivera." Again, no details regarding the identification

3 When asked, "So you didn't observe him—you didn't actually

observe him commit any criminal acts in front of that bar or outside, did

you?" Detective Sequiera responded, "No."

4 Witnesses testified inconsistently as to whether Rivera was to be

arrested or detained upon his exit from Art's Lounge. In the order on

review, the court found, "After [Rivera] walked past the covert vehicle,

Detective Sequiera gave the signal to arrest [Rivera]."

5 Rivera was charged with trafficking of a fentanyl derivative.

Whereas fentanyl derivatives are schedule I controlled substances

identified in section 893.03(1)(a)62, fentanyl is a schedule II controlled

substance identified in section 893.03(2)(b)9.

4

were provided. Detective Dillon testified that she observed Rivera exit

Art's Lounge and that after the "move in" signal was given, she observed

Detective Sequeira and Corporal Dahl attempt to arrest Rivera, following

which a brief foot chase occurred. She did not testify that she observed

Rivera drop a baggie; rather, she testified that following Rivera's arrest,

she observed "a white bag" about five feet away from Rivera which

"eventually" was given to Detective Sequeira. She testified that she was

given a small bag that Detective Stearns advised had been clipped to

Rivera's pants and that she opened and searched that bag. Detective

Dillon further testified that she did not see Rivera with anything that was

"clearly narcotics or could even be construed as [narcotics]" and that she

did not see Rivera commit any criminal acts until he was arrested.

Other undisputed facts adduced at the hearing include that the CI

was not present at Art's Lounge, that Rivera did not arrive on scene until

hours after the phone call arranging the buy, and that Rivera remained

inside Art's Lounge for an extended period after his arrival. The CI did

not testify at the hearing.

Rivera sought to suppress evidence "found as a result of the illegal

search of [his] person." Rivera specifically identified a locked black

lockbox (left pant pocket); a black nylon bag (right pant pocket); keys

attached to a lighter leash and a closed blue bag (on belt loop); and any

statements or admissions alleged to have been made by Rivera. Rivera

contended that law enforcement's search of the closed containers found

on his person violated his Fourth Amendment rights and Arizona v. Gant,

556 U.S. 332 (2009), where the searches were not necessary for officer

safety or to prevent destruction of evidence. Rivera also sought

suppression of the baggie found on the ground and a plastic bag found in

his pocket. He alleged that the CI involved in his arrest called someone

5

known as "Nephew," that the CI was not present at Art's Lounge, and

that Rivera was never identified as "Nephew." Rivera alleged that law

enforcement had no particular and objective basis to suspect him of

criminal activity and that there is no legal basis for the resisting without

violence charge as officers were not lawfully executing a duty when they

ordered him to stop and he ran. These same assertions are the basis for

Rivera's motion to dismiss the resisting charge.

The court orally denied Rivera's motions. The court stated it would

include case law in its written order but determined that it is standard

operating procedure "that they don't bring anything in the car back to

the station unless it's searched." When counsel for Rivera pointed out

that a locked box is not inherently a weapon, the court stated: "You don't

know what's in it. It could be nitroglycerin. It could be Semtex. It could

be a large amount of fentanyl . . . . You got to know what's in it."

In the written order denying suppression and dismissal, the court

addressed the Art's Lounge and Cracker Barrel cases together. The court

did not differentiate between what was known to officers when they

encountered Rivera at Art's Lounge and what they knew months later at

Cracker Barrel. And while the court found that officers were shown a

photograph of Rivera at the briefing and that it was Rivera at Art's

Lounge, it did not address how law enforcement determined that Rivera

was the person the CI had called, who was only identified as Nephew and

for whom no physical description was provided. Citing Gant, the

Hillsborough County Sheriff's Office standard operating procedures, and

section 901.21, Florida Statutes, the court found that the officers could

legally seize the containers found in the search of Rivera's person. The

court then found it was reasonable for officers to assume that drugs were

in the containers and therefore reasonable to search them.

6

II. Standard of review

"When reviewing a motion to suppress, the standard of review for

the trial court's application of the law to its factual findings is de novo,

but a reviewing court must defer to the factual findings of the trial court

that are supported by competent, substantial evidence." State v.

Zachery, 255 So. 3d 957, 960 (Fla. 2d DCA 2018) (quoting Duke v. State,

82 So. 3d 1155, 1157-58 (Fla. 2d DCA 2012)). A defendant seeking to

suppress an illegal search must " 'make an initial showing that the

search was invalid.' However, '[a] warrantless search constitutes a prima

facie showing which shifts to the [S]tate the burden of showing the

search's legality.' " State v. K.C., 207 So. 3d 951, 953 (Fla. 4th DCA

2016) (alterations in original) (first quoting Miles v. State, 953 So. 2d 778,

779 (Fla. 4th DCA 2007); and then quoting Lewis v. State, 979 So. 2d

1197, 1200 (Fla. 4th DCA 2008)). In this case, the search was

warrantless, and the State bore the burden at the hearing.

III. Dismissal

With regard to the motion to dismiss, Rivera contends that officers

lacked reasonable suspicion to detain him and were not acting in lawful

execution of their duties such that he was not resisting without violence

when he ran from officers. We agree.

"To be guilty of unlawfully resisting an officer, an individual who

flees must know of the officer's intent to detain him, and the officer must

be justified in making the stop at the point when the command to stop is

issued." Lachman v. State, 309 So. 3d 244, 245 (Fla. 2d DCA 2020)

(emphasis added) (quoting C.E.L. v. State, 24 So. 3d 1181, 1186 (Fla.

2009)). An officer is justified in making the stop if there is "reasonable

7

and well-founded suspicion that criminal activity has occurred or is

about to occur." C.E.L., 24 So. 3d at 1186.6

At the hearing, Rivera argued that the State presented no testimony

or other evidence identifying Rivera as the person whom the CI called to

set up a buy. He argued that there was no evidence establishing how law

enforcement knew that the person on the phone with the CI was Rivera

or that Rivera was "Nephew." Further, he argued that the CI was an

unreliable source who did not testify and who "ha[d] every reason to tell

law enforcement anything to try to help her situation," having been

arrested herself earlier the same day.

"It is the State's burden to establish that police had the necessary

reasonable suspicion to detain and the necessary probable cause to

arrest an individual." K.W. v. State, 328 So. 3d 1022, 1025 (Fla. 2d DCA

2021); accord Brown v. State, 313 So. 3d 848, 850 (Fla. 2d DCA 2021).

"Reasonable suspicion of criminal activity may arise from tips that law

enforcement receives, but whether tips can provide reasonable suspicion

depends upon both the quantity and quality of the information, or its

degree of reliability." Regalado v. State, 25 So. 3d 600, 603 (Fla. 4th DCA

2009); accord Slydell v. State, 240 So. 3d 134, 135-36 (Fla. 2d DCA

2018). Where the CI is untested, providing "detailed and verifiable

information on the occasion in question" can establish reliability. See

Everette v. State, 736 So. 2d 726, 727 (Fla. 2d DCA 1999).

6 During the hearing, law enforcement officers focused on the point

at which Rivera exited Art's Lounge and testified inconsistently as to

whether Rivera was under arrest or detained at that point. We do not

determine which standard applied; we address only whether law

enforcement had reasonable suspicion to detain Rivera because

" '[r]easonable suspicion' is a less demanding standard than that for

probable cause." See Cruz v. State, 320 So. 3d 695, 713 (Fla. 2021)

(quoting State v. Gonzalez, 682 So. 2d 1168, 1170 (Fla. 3d DCA 1996)).

8

In State v. Flores, 932 So. 2d 341 (Fla. 2d DCA 2006), this court

addressed facts both similar and dissimilar to this case in determining

that the trial court erred in granting the motion to suppress:

The charges against Flores arose out of a controlled buy

in which a confidential informant ("CI") that the police had

never used before arranged to purchase crack cocaine from

one of his suppliers. The CI had been arrested earlier in the

day for possession of cocaine and possession of drug

paraphernalia. An officer was present when the CI arranged

the meeting by telephone, and the CI provided the officers

with the following information: The CI was to meet a man

named Chico in fifteen minutes at a particular 7–Eleven to

purchase $50 worth of crack cocaine; Chico, a Hispanic male

in his midtwenties, would be driving a dark-colored Nissan;

Chico would arrive at the west side of the convenience store;

and Chico would be alone. A car matching the description

given by the CI arrived at the arranged place at the arranged

time; however, there were two people in the car. Officers

approached the car with guns drawn and opened the car

door. As the driver exited the vehicle, officers observed him

drop cocaine from his hand. The officers arrested the driver

for possession of cocaine and determined that the driver was

Flores.

Id. at 342.

At issue in Flores was "whether the tip [from the CI] provided the

reasonable suspicion needed" for an investigatory stop. Id. at 343. In

determining that the tip was sufficient, this court cited the following

facts:

The CI had purchased drugs from Flores previously, thus

establishing the basis of his knowledge. The officer listened

as the CI made arrangements to purchase $50 of cocaine

from someone on the telephone. The CI provided information

as to where and when the purchase would take place and

what type of vehicle the supplier would be driving. The

officers reported to the location given by the CI, and a vehicle

matching the description given by the CI timely arrived.

Id. at 344. The CI also provided a description, albeit vague, of Flores.

9

The Flores opinion distinguishes an earlier decision of this court,

Miller v. State, 780 So. 2d 151, 152 (Fla. 2d DCA 2000). Miller concluded

that the trial court erred in denying the motion to suppress where the

information provided by a new and untested CI was not sufficiently

reliable to provide officers with the reasonable suspicion needed for an

investigatory stop. In Miller, the CI

used a pay phone to call a pager number that he said

belonged to his supplier. The call was returned, and the C.I.

stated to the officers that a man named Rolo would arrive at

an agreed location to sell him drugs in about fifteen minutes.

Neither the pager number nor the call-back number was

obtained by the officers. The C.I. told the officers where Rolo

lived, that he would be driving a maroon Buick with a tan top,

and there would be drugs under the seat on the driver's side

of the car.

780 So. 2d at 151.

The evidence provided at the suppression hearing in the instant

case is negligible compared to that provided in both Miller and Flores.

We have an untested, new CI. The detective listening to the call testified

that the CI knew the person she was calling as Nephew and that "she

was able to order an amount of fentanyl" from Nephew. No description of

Nephew was provided. No testimony was provided as to how or why law

enforcement believed Nephew was Rivera; for example, no existing law

enforcement knowledge from an ongoing or prior investigation was

provided. No description of Rivera's vehicle or other details were

provided. A buy was set up at a public location, and although Nephew

said "about forty minutes," Rivera did not appear at Art's Lounge until

three hours later. The only evidence connecting Rivera to the buy was

his presence at Art's Lounge. Cf. State v. Clark, 986 So. 2d 625, 630

(Fla. 2d DCA 2008) (reversing order granting suppression where the CI

"provided a detailed description of Mr. Clark, including his race, age,

10

height, build, nickname, and the type of vehicle that he drove" and upon

arrival at the buy location officers were able to corroborate that

information along with the prearranged signal Mr. Clark would give).

Under the totality of the circumstances, law enforcement did not have

reasonable suspicion to detain Rivera at the time they exited the covert

vehicle, announced themselves, and ordered Rivera to stop. See State v.

Hendrex, 865 So. 2d 531, 534 (Fla. 2d DCA 2003) ("Under the Fourth

Amendment, an arrest . . . requires a higher level of justification than

that required for an investigatory stop.").

Accordingly, Rivera's motion to dismiss should have been granted

and his conviction for resisting without violence must be reversed.

IV. Suppression

As to the denial of suppression, dispositive of the trafficking and

possession convictions, Rivera argues that the searches of the closed

containers removed from his person were warrantless, not valid as

searches incident to arrest, and not subject to any other delineated

exception to the warrant requirement such that the trial court should

have granted suppression. Again, we agree.7

As discussed above, the evidence failed to establish that officers

had reasonable suspicion to detain Rivera—much less probable cause to

arrest him—when Rivera arrived on scene at Art's Lounge. And although

the trial court found that the baggie Rivera dropped in the brief foot

7 Our review is limited to considering whether the trial court

correctly denied suppression and dismissal where the order was

dispositive of the charges filed against Rivera, to which he pleaded and

upon which judgment was rendered. We are not tasked with determining

whether the State could have charged Rivera with possession based on

the dropped baggie. See Kutzorik v. State, 891 So. 2d 645, 646 n.1 (Fla.

2d DCA 2005); Beauchamp v. State, 742 So. 2d 431, 432 n.4 (Fla. 2d

DCA 1999).

11

chase provided probable cause for his arrest, that finding is unsupported

by the evidence presented at the suppression hearing.8 Cf. Mosley v.

State, 739 So. 2d 672, 675 (Fla. 4th DCA 1999) ("In the case before us,

the officers' original pursuit of the defendant lacked both reasonable

suspicion and probable cause. . . . However, the evidence placed before

the jury included testimony that during the initial invalid pursuit, the

defendant dropped his cocaine pipe and it was found by Officer

Bradford . . . . Lt. Wagner recognized it as a cocaine pipe as soon as the

defendant pulled it from his pocket. Officer Bradford immediately

recognized the pipe as illegal contraband when he picked it up off the

ground. At that point, the officers had probable cause to arrest the

defendant." (emphasis added)); Welch v. State, 689 So. 2d 1240, 1241

(Fla. 2d DCA 1997) (reversing judgment and sentence on the basis of

improper denial of motion to suppress where "neither the mere sight of a

baggie, nor the concealment thereof, established a well-founded

suspicion to seize or detain [the defendant]" and "[t]he fact that one of the

officers equivocally stated he saw something in the baggie, without more,

does not change the situation"). The arrest was unlawful, and therefore

the evidence discovered in the searches incident to Rivera's arrest must

8 We make no comment as to whether officers could have legally

detained Rivera upon his dropping of the baggie; officers did not detain

Rivera following the chase—they arrested him. Cf. Conyers v. State, 164

So. 3d 73, 77 (Fla. 2d DCA 2015) ("The issue is not whether the officer

could arrest Mr. Conyers for possession of paraphernalia when he first

felt the object but whether the Fourth Amendment permitted the officer

to conduct a limited search, a removal of the object from Mr. Conyers'

pocket. Once the object was removed, the officer's visual inspection

either would confirm that the object was a crack pipe and establish

probable cause to arrest or it would disclose that the item was some

uncommon innocent item not justifying his further detention.").

12

be suppressed. See, e.g., Fournier v. State, 731 So. 2d 75, 77 (Fla. 2d

DCA 1999).

However, even had Rivera's arrest been lawful—as the trial court

ruled in this case—suppression would nonetheless be required. "[T]he

search of an item from which a defendant has been physically separated

cannot be upheld as a search incident to the defendant's arrest." See

Ancrum v. State, 146 So. 3d 1217, 1220 (Fla. 2d DCA 2014). That is, "a

search incident to arrest only includes the arrestee's person and the area

within his immediate control, i.e., the area into which he may reach to

acquire a weapon or destroy evidence." Smallwood v. State, 113 So. 3d

724, 734 (Fla. 2013); accord Jean v. State, 369 So. 3d 1235, 1239 (Fla.

6th DCA 2023).

In Smallwood, the Florida Supreme Court held that once

Smallwood's cellphone "was removed from Smallwood's person, there was

no possibility that Smallwood could use the device as a weapon, nor

could he have destroyed any evidence that may have existed on the

phone. Accordingly, neither the officer protection nor the evidence

preservation justification for the warrant exception applied." 113 So. 3d

at 735. "Thus, where an arrestee has been secured by police officers and

separated from the thing that the officers wish to search, neither of the

rationales for the search incident to arrest exception apply and,

accordingly, a search of that thing cannot be conducted as a search

incident to arrest." Jean, 369 So. 3d at 1239 (first citing Smallwood, 113

So. 3d at 735; and then citing Gant, 556 U.S. at 335). Gant likewise

provides, "If there is no possibility that an arrestee could reach into the

area that law enforcement officers seek to search, both justifications for

the search-incident-to-arrest exception are absent and the rule does not

apply." 556 U.S. at 339.

13

The evidence presented at the suppression hearing establishes that

Rivera was under arrest and had been handcuffed when his person was

searched and the lockbox and bag were removed from his person. The

evidence further establishes that the lockbox and bag were given to

officers on scene to search; they were no longer in Rivera's control or

reach.

At the hearing, the prosecutor referenced section 901.21, Florida

Statutes (2022), in connection with the standard operating procedures

testified to by the detectives. Section 901.21 is divided into subsections;

subsection (1) provides for "search [of] the person arrested and the area

within the person's immediate presence," and subsection (2) provides for

"seize[ure] [of] all instruments, articles, or things discovered on the

person arrested or within the person's immediate control." (Emphasis

added.) Thus had Rivera's arrest been lawful, the lockbox and the bag

would have been legally seized by the police. But seizure is not the same

as search. See, e.g., Hanifan v. State, 177 So. 3d 277, 282 (Fla. 2d DCA

2015) (Villanti, C.J., concurring) (" '[D]ifferent interests are implicated by

a seizure than by a search' because of the less intrusive nature of a

seizure." (quoting Segura v. United States, 468 U.S. 796, 806 (1984))).9

9 We briefly address the State's assertion that regardless of a

Fourth Amendment violation, the evidence in this case should not be

excluded because law enforcement did not act "deliberately, recklessly, or

with gross negligence" and there is otherwise no "recurring or systemic

negligence on the part of law enforcement." See Davis v. United States,

564 U.S. 229, 240 (2011). Evidence established that the standard

operating procedure employed by law enforcement—at least insofar as

the officers involved understood it—conflicts with binding judicial

precedent of the last decade regarding the search of items from which a

defendant has been physically separated not involving a vehicle. And the

State, bearing the burden of proof, offered no evidence whatsoever that

law enforcement's actions were not deliberate, reckless, grossly negligent

or otherwise recurring or systematic negligence. See State v. J.R.D., 311

14

Relying on its understanding of Gant, the trial court determined

that the officers' search of the lockbox and bag was lawful because

evidence of the drug offenses for which Rivera was arrested might be

contained therein. The trial court found that the search in this case was

lawful because, under its reading of Gant, "it was reasonable for law

enforcement to believe that the containers found on [Rivera] would hold

evidence of the offense of arrest, possession of narcotics." Further, citing

Smallwood, the court determined that "Gant has been found to apply to

all searches, and not just automobile searches as discussed in Gant."

The trial court misconstrued both Gant and Smallwood. Gant

unambiguously "conclude[s] that circumstances unique to the vehicle

context justify a search incident to a lawful arrest when it is 'reasonable

to believe evidence relevant to the crime of arrest might be found in the

vehicle.' " 556 U.S. at 343 (quoting Thornton v. United States, 541 U.S.

615, 632 (2004) (Scalia, J., concurring)). And in Smallwood the Florida

Supreme Court recognized the limited application of the "evidence

relevant to the crime of arrest" justification, finding that it was not at

issue in Smallwood because Smallwood was not in a vehicle at the time

that he was arrested. 113 So. 3d at 735 n.6 (quoting Gant, 556 U.S. at

343). This limited application has been recognized by other district

courts of appeal. See, e.g., Jean, 369 So. 3d at 1241 (concluding that the

" 'evidence relevant to the crime of arrest' exception . . . applies only to

vehicles and any containers therein" and that therefore, "[b]ecause the

So. 3d 84, 89 (Fla. 2d DCA 2019) ("[I]t was the State's burden to prove

that such errors were not routine or widespread, and it failed to do so.").

Similarly, the State failed to present any evidence regarding inventory

procedures or inevitable discovery. See Jean, 369 So. 3d at 1242; cf.

Ross v. State, 319 So. 3d 807, 812 (Fla. 2d DCA 2021) (reiterating that it

is the State's burden to present evidence with regard to inventory

search).

15

fanny pack was never stored on or in a vehicle, the officers were not

permitted to search the fanny pack pursuant to the 'evidence relevant to

the crime of arrest' exception established in Gant"); Harris v. State, 238

So. 3d 396, 403 (Fla. 3d DCA 2018) (concluding that the search of

appellant's backpack "was not a valid search under Gant's automobile

exception" where "[a]ssuming a dirt bike qualifies as a vehicle for

purposes of this exception, the facts are clear that [appellant's] backpack

was not a part of the dirt bike nor stored on or in it"). 10 Here, Rivera was

not in a vehicle at the time he was arrested, nor was the evidence sought

to be suppressed found in his vehicle. The exception articulated in

Gant—"justify[ing] a search incident to a lawful arrest when it is

reasonable to believe evidence relevant to the crime of arrest might be

found in the vehicle"—is not applicable here. See Gant, 556 U.S. at 335.

And the law that is applicable in this case makes it clear that the trial

court erred in denying suppression.

V. Conclusion

For the foregoing reasons, the trial court erred in denying Rivera's

motions. The order on review is dispositive of the charges to which

Rivera pleaded. Accordingly, his judgment and sentences for trafficking

in fentanyl, possession of a controlled substance with intent to sell or

deliver, and resisting an officer without violence are reversed, and we

remand for Rivera's discharge in this case.

10 Further, to the extent the trial court's reasoning was premised on

a continuing concern about safety, it was not objectively reasonable to

believe a search of the items removed from Rivera's person was necessary

on the facts of this case. Cf. S.P. v. State, 331 So. 3d 883, 892-93 (Fla.

2d DCA 2022). That is, the State presented no evidence suggesting that

Rivera was in possession of explosives or that placing containers holding

even large amounts of fentanyl in the trunk of a law enforcement vehicle

would be unsafe.

16

Reversed and remanded with instructions.

CASANUEVA and SILBERMAN, JJ., Concur.

Opinion subject to revision prior to official publication.

17