Nesmith v. State

¶1The appellant challenges the denial of her motion to suppress cocaine found in her wallet incident to her warrantless arrest for a misdemeanor in violation of a Polk County Ordinance.1 We reverse.

¶2On February 13, 1986, the appellant was arrested in the bar of La Pleasures Lounge in Auburndale for nude dancing in an establishment that sells alcoholic beverages, a violation of Polk County Ordinance 81-25 and 83-21. A female officer summoned by the arresting officers conducted the search incident to arrest that uncovered the cocaine. Although she testified at the suppression hearing, she had not seen the appellant commit the misdemeanor.

¶3On October 3,1991, the appellant entered a plea of nolo contendere to possession of cocaine in violation of section 893.13(l)(e), Florida Statutes (1985), reserving the right to appeal the denial of her motion to suppress.

¶4A law enforcement officer may only effect a warrantless arrest for a misdemean- or when it has been committed in his presence. § 901.15(1), Fla.Stat. (1985); Peterson v. State, 578 So.2d 749 (Fla. 2d DCA 1991).

¶5Although the female officer testified that she was summoned to assist in the arrest, there was no testimony from any officer who actually witnessed the violation. In the absence of such evidence, the state failed to prove that the search was incident to a valid arrest.

¶6We therefore reverse the order denying suppression of the cocaine.

¶7Reversed and remanded.