J.J.V. v. State

17 So. 3d 881, 2009 Fla. App. LEXIS 13750
CourtDistrict Court of Appeal of Florida
DecidedSeptember 16, 2009
DocketNo. 4D08-4562
StatusPublished
Cited by8 cases

This text of 17 So. 3d 881 (J.J.V. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.J.V. v. State, 17 So. 3d 881, 2009 Fla. App. LEXIS 13750 (Fla. Ct. App. 2009).

Opinion

TAYLOR, J.

In this appeal from a delinquency adjudication and commitment on drug charges, appellant contends that the trial court erred in denying his motion to suppress physical evidence and statements because the deputy exceeded the scope of his consent to search his car. We agree and reverse.

Deputy Michael Walsh was on routine bike patrol at night with his partner, Corporal Goddard, when he observed a vehicle back out of a residence in the Watergate Estates Community Mobile Home Park. The vehicle turned around and headed towards him without its headlights on. Deputy Walsh stepped out into the street and held up his hand, motioning the driver to stop the car so he could speak with him. He intended to advise the driver that he did not have his lights on and investigate whether the car had working headlights and whether the driver had a valid driver’s license and any traffic record.

There were two people in the car. The deputy recognized the driver (appellant) and knew his name. He told him why he had stopped him. He gave appellant a written warning for the headlight infraction. After asking appellant a few questions about his presence in the area and noting his nervousness, the deputy asked [883]*883appellant if he had anything illegal in the car. Appellant responded, “No, I don’t have anything illegal in the car. You’re welcome to search it if you like.” Deputy Walsh then asked appellant and his passenger to step out of the vehicle. He had them stand at the back of the car with Corporal Goddard while he searched the car.

A center console with a compartment was located between the two front seats of the vehicle. When Deputy Walsh tried to open the compartment, he discovered it was locked. He asked appellant if he had a key to it. The car belonged to appellant’s mother and appellant told the deputy that she had the only key. Without asking appellant’s permission, the deputy then removed the key from the ignition and used it to open the center console lock. Inside the center console, he found a small plastic baggie containing three small blue pills and an even smaller baggie containing suspected marijuana. He also found a small glass pipe, the type frequently used for smoking illegal narcotics. Deputy Walsh read Miranda warnings to both appellant and his passenger. Appellant told the deputy that all of the “stuff’ was his.

Appellant filed a motion to suppress all physical evidence and statements. At the hearing on the motion, appellant testified that he did not give the officers consent to search the car. The deputy testified that appellant consented to a search of the car and that he reasonably believed that his consent included a search of the center console. He based his belief on the fact that appellant never told him that he could not search the center console and did not protest or try to stop him when he used the ignition key to open the console.

The trial court found the deputy’s testimony regarding appellant’s consent to seai'ch to be more credible than appellant’s and denied the motion to suppress. Thereafter, appellant entered a plea to the drug charges, reserving his right to appeal the court’s ruling on the motion to suppress. The trial court acknowledged appellant’s express reservation of the right to appeal but did not specifically find the motion to be dispositive. The trial court adjudicated appellant delinquent and committed him to a Level 8 program.

We first address the state’s argument that the suppression issue was not preserved because there was no stipulation by the state or finding by the court that the motion to suppress is dispositive. See State v. Carr, 438 So.2d 826, 828 (Fla.1983) (holding that an issue is preserved on a guilty plea only if it is dispositive of the case). In cases like this, where a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive of the case. See Brown v. State, 376 So.2d 382, 385 (Fla.1979); Howard v. State, 515 So.2d 346 (Fla. 1st DCA 1987). Thus, the lack of an express finding that the issue is dispositive is not fatal. See Hawk v. State, 848 So.2d 475, 478 (Fla. 5th DCA 2003).

Turning to the merits of the appeal, we begin by accepting the trial court’s factual finding that appellant voluntarily consented to a search of the car. That finding is supported by the record. See Porter v. State, 765 So.2d 76, 77 (Fla. 4th DCA 2000) (“The ruling of the trial court on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.”). Although we are “required to accept the trial court’s determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the law to the historical facts estab[884]*884lishes an adequate basis for the trial court’s finding of probable cause.” Id. (citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Next, we must determine whether appellant’s consent to search his car extended to a search of the locked console inside the car. See Davis v. State, 594 So.2d 264 (Fla.1992) (holding that once it is established that the search was conducted pursuant to a defendant’s voluntary consent, a court need only determine whether the search was conducted within the limits of the consent given). This issue concerns a mixed question of fact and law. We review application of the law to the historical facts de novo. See Ornelas. Moreover, in applying the law regarding search and seizure issues, we are bound, under the conformity clause of the state constitution, to follow applicable United States Supreme Court precedents. Art. I, § 12, Fla. Const.; State v. Butler, 655 So.2d 1123, 1125 (Fla.1995); Niemann v. State, 819 So.2d 166 (Fla. 4th DCA 2002).

The standard for measuring the scope of a person’s consent under the Fourth Amendment is that of objective reasonableness: what an ordinary reasonable person would have understood to be the scope of consent by the exchange between the officer and the consenting person. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). In Jimeno, the officer stopped the defendant for a traffic violation and informed him that he believed he was carrying narcotics. After receiving the defendant’s consent to search the car, the officer looked inside and opened a brown paper bag lying on the car’s floorboard. He found a kilogram of cocaine inside. The Court upheld the search, stating that it was objectively reasonable for the officer to conclude that the defendant’s general consent included consent to search closed containers within the car which might carry drugs. The Court said that the scope of a search is “generally defined by its expressed object.” Id. Thus, since a reasonable person could be expected to know that narcotics are generally carried in some form of container, the authorization to search extended to looking inside the paper bag.

However, the Court clarified that not all containers could be opened within the general rule, noting, as did the Florida Supreme Court in State v. Wells,

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Bluebook (online)
17 So. 3d 881, 2009 Fla. App. LEXIS 13750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jjv-v-state-fladistctapp-2009.