# Rivera v. State of Florida

> District Court of Appeal of Florida · November 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10733559

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** November 8, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10733559. Public record. Not legal advice.