
    The STATE of Florida, Appellant, v. Pedro GONZALEZ, Appellee.
    No. 88-2671.
    District Court of Appeal of Florida, Third District.
    April 3, 1990.
    Rehearing Denied July 6, 1990.
    
      Robert A. Butterworth, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robert Kalter, Asst. Public Defender, for appellee.
    Before NESBITT, BASKIN and COPE, JJ.
   COPE, Judge.

The State appeals an order granting a motion to suppress evidence obtained from defendant’s automobile. We reverse.

A state trooper observed the defendant illegally drive his vehicle over the median strip of an interstate highway. The officer stopped the vehicle and, upon examining defendant’s driver’s license, found that it had expired over four months previously. The defendant stated that the car belonged to him but that he did not possess the registration and proof of insurance. The defendant and the passenger gave conflicting stories about their destination, and the passenger was very nervous.

Because the officer was suspicious of the defendant and his passenger, he called for a backup unit. When the second trooper arrived, the officer asked permission to look in the vehicle. Defendant agreed. During a search of the car’s interior compartment, the trooper noticed a paper bag containing two closed, but unsealed, boxes on the floorboard of the back seat. The trooper lifted the lids of the boxes, revealing cocaine, whereupon he arrested the defendant on narcotics charges. See § 893.135, Fla.Stat. (1987). Later, at the police station, defendant was charged with driving without a valid driver’s license and other motor vehicle offenses.

At the hearing on the motion to suppress the contraband, the officer testified that prior to conducting the search of the car, he had no intention of making a custodial arrest of the defendant for the expired license. He intended only to issue a traffic citation, apparently contemplating that the passenger would drive the car from the scene.

The officer also testified that while he was writing the traffic citation, he observed continuous furtive movements by the passenger which led him to be concerned that, among other things, the passenger might have a weapon. At that point the officer ordered the passenger to leave the car, requested consent, and conducted the search.

The trial court granted the motion to suppress. Relying on the panel opinion in State v. Cross, 535 So.2d 282 (Fla. 3d DCA 1988), the trial court concluded that the form of the officer’s request for consent encompassed only the vehicle but not closed containers therein. Since there was no separate request for consent to open the boxes, the trial court concluded that the officer exceeded the scope of the consent.

The trial court also rejected the State’s alternative argument that the search should be sustained as a valid search incident to a lawful arrest. The court acknowledged that, if the automobile search had been incident to a lawful arrest, then the officer would have been entitled to search all containers within the passenger compartment. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981). The court rejected the “search incident” argument because the officer had not made a custodial arrest, and had no intention of doing so, until after the search uncovered the contraband. The trial court therefore granted the motion to suppress.

The record before us discloses that, in the circumstances of the present case, the officer’s actions constituted a valid search for weapons authorized by Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and for that reason the motion to suppress should have been denied. That being so, we need not reach the remaining issues of consent and search incident to a lawful arrest.

Michigan v. Long holds that in the context of a traffic stop, an officer may search “the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, ... if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” 463 U.S. at 1049, 103 S.Ct. at 3481, 77 L.Ed.2d 1201, citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (footnote omitted). The test is “ ‘whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” Id. While automobile searches cannot routinely be made whenever there is an investigative stop, they can be made “during investigative detentions ... when they have the level of suspicion identified in Terry.” Id. 463 U.S. at 1049 n. 14, 103 S.Ct. at 3481 n. 14, 77 L.Ed.2d 1201.

Here the observations of the officer gave rise to a reasonable concern that the passenger was armed, and satisfied the standard set forth in Michigan v. Long. The officer was entitled to search the passenger compartment, including containers in which weapons might be held. Id.; see also § 901.151, Fla.Stat. (1987). The search conducted by the officer was within the bounds of his authority, and contraband discovered in the course of that search was lawfully seized. 463 U.S. at 1050, 103 S.Ct. at 3481, 77 L.Ed.2d 1201.

The suppression order is therefore reversed and the cause is remanded for further proceedings.

NESBITT, Judge

(specially concurring):

I fully concur with Judge Cope’s opinion and write separately only to articulate another basis upon which the order granting the motion to suppress should be reversed.

In Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), the United States Supreme Court upheld a search where the defendant was stopped by police officers who saw his vehicle cross the cén-ter line three or four times. After the stop, a police officer asked the defendant to produce his driver’s license. Upon learning that the defendant did not have a license in his possession, the officer made a custodial arrest and then proceeded to make a frisk which disclosed a chain attached to a cigarette box containing marijuana cigarettes.

On the same day that Gustafson was decided, the Supreme Court decided United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In that case, upon discovering that the defendant’s driver’s license had been revoked, the officer made a custodial arrest of the defendant and proceeded to search him even though the officer testified he did not fear or suspect that the defendant was armed. During the pat-down, a crumpled cigarette pack was detected which contained heroin capsules. In Robinson, as in Gustafson, the Supreme Court determined that a search incident to an arrest does not require additional justification: It is the fact of the lawful arrest which establishes the authority to search.

Later, Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), established that a search which precedes a formal arrest for operating a motor vehicle with an expired license does not affect the validity of a search. Accord State v. James, 526 So.2d 188 (Fla. 3d DCA 1988); State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982).

In Thomas v. State, 395 So.2d 280, 281 (Fla. 3d DCA 1981), this court held:

Where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.

In this case, the officer had probable cause to make a custodial arrest for driving with a license which had been expired for four months or more. (§§ 318.14(1), 322.-03(5)(b), Fla.Stat. (1987)).

The sum and substance of the above cases make it clear that the fact that the officer had no intention of arresting the defendant for operating a vehicle with an expired license is irrelevant. It is the existence of probable cause in an objective sense that clothed the officer with the authority to make the search of the defendant’s vehicle which led to the disclosure of the contraband. See State v. Smith, 529 So.2d 1226, 1230 (Fla. 3d DCA 1988); see also State v. Boulia, 522 So.2d 528 (Fla. 2d DCA 1988) (where officer intended only to issue a notice to appear for marijuana possession charge, probable cause to lawfully arrest defendant for the offense established the authority to search).

BASKIN, Judge

(dissenting).

The premise of the majority opinion is that a warrantless traffic stop justifies a search of the entire passenger compartment of the ear for weapons. In my view, the majority, in reaching its conclusion that the officer was entitled to search the floorboard of the back seat after he stopped the car Gonzalez was driving, misconstrues Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

Michigan v. Long explains that warrant-less automobile searches are designed to protect police officers who have a reasonable belief that individuals ordered out of a vehicle during a traffic violation stop are armed and dangerous. In that case, the Supreme Court extended Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which permits a search incident to arrest of “the arrestee’s person and the area ‘within his immediate control’ —construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence,” Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694 (extending Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), to the automobile stop situation. The Court held further that “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon’_” Michigan v. Long, 463 U.S. at 1049, 103 S.Ct. at 3480, 77 L.Ed.2d at 1219 (quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768, 775 (1981)). Michigan v. Long “does not mean that the police may conduct automobile searches whenever they conduct an investigative stop”; officers may conduct area searches during investigative detention only when they have the level of suspicion identified in Terry. Michigan v. Long, 463 U.S. at 1050, n. 14, 103 S.Ct. at 3481, n. 14, 77 L.Ed.2d at 1220, n. 14.

In the case before us, police stopped Gonzalez’s car because it was weaving and questioned Gonzalez because he possessed an expired driver’s license. There was no reason to suspect that he had participated in a criminal offense. It was only when the officer pushed the front seat of the driver’s side forward that he noticed a yellow supermarket bag “seated in the floor board of the back seat. There were two bags [sic] outside of the bag. They were labeled Nissan, the boxes were not open, they were not sealed.” Under these circumstances, the officer lacked any reasonable ground for believing the occupants were armed and dangerous or other basis for searching the entire interior of the car. Assuming, however, that a search was reasonable to protect the officer, no authority supports a search of the back floorboard, an area not within the driver’s reach.

Other grounds offering legal support for the type of search conducted here are also absent. The search may not be justified on the basis of consent, as the search extended beyond Gonzalez’s actual consent. See State v. Wells, 539 So.2d 464 (Fla.), cert. granted, — U.S. —, 109 S.Ct. 3183, 105 L.Ed.2d 692 (1989); Moreland v. State, 552 So.2d 937 (Fla. 2d DCA 1989); State v. Abrams, 548 So.2d 820 (Fla. 2d DCA 1989). Furthermore, the search was not conducted incident to a lawful arrest, according to the officer’s testimony. For these reasons, I would hold that the trial court ruled correctly in suppressing the evidence and affirm. 
      
      . The officer had grounds to make a custodial arrest. See §§ 318.14(1), 322.03(5)(b), Fla.Stat. (1987).
     
      
      . Reversed, en banc, 535 So.2d at 285 (Fla. 3d DCA 1988), jurisdiction accepted, 544 So.2d 199 (Fla.1989).
     
      
      . The United States Supreme Court has expressly left open the question whether, if probable cause to make a custodial arrest exists, but the officers do not actually effect the arrest, the police may nevertheless conduct a search of the passenger compartment as if the arrest had been made. Michigan v. Long, 463 U.S. at 1035 n. 1, 103 S.Ct. at 3473 n. 1, 77 L.Ed.2d 1201; New York v. Class, 475 U.S. 106, 119 fn., 106 S.Ct. 960, 969 fn., 89 L.Ed.2d 81, 94 fn. (1986).
      The question of scope of consent to search a closed container is frequently a troublesome eme. See State v. Wells, 539 So.2d 464 (Fla.), cert. granted, — U.S. —, 109 S.Ct. 3183, 105 L.Ed.2d 692 (1989) (locked container); State v. Jimeno, 550 So.2d 1176 (Fla. 3d DCA 1989) (treating rolled paper bag in passenger compartment as sealed container; question certified to Florida Supreme Court); Shelton v. State, 549 So.2d 236 (Fla. 3d DCA 1989) (gift-wrapped package; question certified to Florida Supreme Court); State v. Cross, 535 So.2d at 282-88 (sealed container), jurisdiction accepted, 544 So.2d 199 (Fla.1989).
     
      
      . On cross-examination, the officer described the items in more detail. He responded:
      A. They were open; they were not sealed, but they were open.
      Q. Did you have to do something to open them?
      A. I had to flip the lid.
      Q. Did you ask him if you could do that?
      A. No.
      Q. You just did that?
      A. Right.
      Q. And inside of that, you found the drugs?
      A. Yes.
      Q. It was at that point that you placed Mr. Gonzalez under arrest?
      A. Yes, I did.
      Q. Mr. Gonzalez, at this whole time, was standing by your patrol car?
      A. Right.
     
      
      . The officer testified:
      Q. At that time did you place him under arrest?
      A. No.
      Q. Were you going to place him under arrest?
      A. No.
     