CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1999 WL 820990
...tivity, and had no probable cause to search the vehicle other than Radford's driving without a license. They believed they had the right to search the vehicle as incident to issuing a criminal citation in lieu of making an arrest. The state cited to section 901.28, which provides: The issuance of a notice to appear shall not be construed to affect a law enforcement officer's authority to conduct an otherwise lawful search, as provided by law....
...The search and seizure in this case violated Welch's Fourth Amendment rights, and the evidence seized should have been suppressed. REVERSED. THOMPSON, J., concurs. HARRIS, J., concurs specially with opinion. HARRIS, J., concurring specially. Although I agree with the majority's analysis, I would hold section 901.28, Florida Statutes (1997), unconstitutional only as applied in this case. Had the sequence of events been different, then the application of section 901.28, even if perhaps unnecessary, would seem most appropriate....
...As it turned out, the computer check merely confirmed the driver's statement that he had no license. The officer then determined that a summons, as opposed to a formal arrest, was sufficient. Once this determination was made, there was no justification for a search of the vehicle and to the extent section 901.28 seems to permit it [1] , it is invalid....
...State,
321 So.2d 98 (Fla. 1st DCA 1975). [9] Traylor v. State,
596 So.2d 957 (Fla.1992); Neisel v. Moran,
80 Fla. 98,
85 So. 346 (1919); Fayson v. State,
678 So.2d 525 (Fla. 5th DCA 1996). [1] Perhaps we are reading more into the statute than the legislature intended. Section
901.28 does not say that a search can be conducted upon the issuance of a summons; it merely provides that an otherwise lawful search shall not be affected if the officer issues a summons instead of making a formal arrest.
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2003 WL 118476
...Because the police officer did not testify, *383 there was no evidence that Pollen was either under arrest or that the police officer intended to effect an arrest. When Mancilla left the security office, Pollen was being detained for a misdemeanor. Under section 901.28, Florida Statutes (2001), the officer had the option of giving Pollen a notice to appear....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18787
...State,
426 So.2d 986 (Fla. 1st DCA 1983), holding that evidence seized from a sleeping defendant’s bedroom was admissible, where access of police officers had been gained by consent of defendant’s coten-ant, who had joint access to the bedroom. . Section
901.28, Florida Statutes (1981), provides for issuance of a notice to appear on misdemeanor charges, and Section 901.32 provides for issuance of an arrest warrant for failure to appear pursuant to notice....
CopyAgo (Fla. Att'y Gen. 1977).
Published | Florida Attorney General Reports
...S., for a criminal traffic offense is unlikely to have these forms in his possession to issue to the accused traffic violator; therefore, he would be required to proceed under the provisions contained in Ch. 901, F. S., and the Florida Rules of Criminal Procedure. Section 901.28 , F....
...In the absence of any legislative or judicial determination to the contrary, it appears that a criminal violation of Ch. 316 may not be classified as a misdemeanor and, accordingly, an arresting officer or booking officer may not issue a notice to appear for such violations under s. 901.28 ....
