IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

STATE OF FLORIDA ,

Appellant ,

v. Case No. 5D 15

- 3429
EUGENE LENARD MAYE ,

Appellee

. ________________________________/ Opinion filed August 12, 2016 Appeal from the Cir cuit Court for Orange County , Keith A. Carsten , Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.

LAWSON, C.J. The State appeals a n order granting a motion to s uppress in its case against Eugene Maye. We have jurisdiction. Fla. R. App. P. 9.140(c)(1)(B). The State argues that the trial court erred in finding that a n unlawful search occurred when a police officer2

pressed the panic button on a key fob obtained in a lawful search incident to arrest

. We agree, and reverse.
Police of ficers arrested Maye for urinating in public at an Orlando

- area shopping plaza. In the searc h incident to Maye’s arrest, an officer found and seized an electronic
vehicle key fob

. The officer asked Maye if he had a vehicle in the shopping plaza parking
l ot, which he denied. The officer then pressed a but ton on the fob, which activated an alarm sounding from a nearby white Dodg e parked at the plaza. An officer looked into the Dodge and saw, in plain view, a plastic baggy that appeared to contain cocaine. The substance was ultimately seized and Maye, post

- Miranda , admitted that the substance
was cocaine and belonged to him.
T he trial court found that although the key fob was lawfully obtained by police in their search incident to Maye’s initial arrest, the o fficer had no lawful basis for pressing a button on the key fob (and violated Maye’s Fourth Amendment rights by doing so). This argument presume s, of course, that the officer’s act of pressing the key fob button
constituted a search for Fourth Amendm ent purposes. We hold that it was not. As explained in Smallwood v. State , 113 So. 3d 724, 730 n.3 (Fla. 2013) (citing United States
v. Jones , 132 S. Ct. 945, 949

– 50 (2012) ):

The United States Supreme Court has articulated two standards for determining when a Fourth Amendment search has occurred: (1) whether there has been a physical trespass or intrusion upon private property, and (2) whether the person searched had a reasonable expectation of privacy in the area searched by government officials.
The s econd factor is determinative here, because Maye had no reasonable expectation of privacy in the only information that could be obtained when the officer
touched the button on the fob lawfully in his hand

— the presence of Maye’s vehicle in the3

public lot. Although this issue appears to be one of first impression in Florida, it has been
addresse d by the federal Eighth Circuit and several other state courts , which all reached
the same conclusion. See , e.g., United States v. Cowan , 674 F.3d 947, 955 (8th Cir. 2012); State v. Bland , 2013 WL 5755670, at *4 (Del. Sup er . Ct. 2013); Com. v. Harvard , 64 A.3d 690, 699 (Pa. Sup er . Ct. 2013); Wiley v. State , 388 S.W. 3d 807, 819 (Tex. Crim. App. 2012)

. We reverse the suppression order and remand for further proceeding s. REVERSED AND REMANDED.

LAMBERT and EDWARDS , JJ., concur.