State v. Cross

535 So. 2d 282, 1988 WL 4023
CourtDistrict Court of Appeal of Florida
DecidedDecember 27, 1988
Docket86-2589
StatusPublished
Cited by7 cases

This text of 535 So. 2d 282 (State v. Cross) 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
State v. Cross, 535 So. 2d 282, 1988 WL 4023 (Fla. Ct. App. 1988).

Opinion

535 So.2d 282 (1988)

The STATE of Florida, Appellant,
v.
Dorothy CROSS, Appellee.

No. 86-2589.

District Court of Appeal of Florida, Third District.

January 26, 1988.
On Rehearing December 27, 1988.

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and N. Joseph Durant, Jr., Asst. Public Defender, for appellee.

Before HUBBART, FERGUSON and JORGENSON, JJ.

On Rehearing En Banc December 27, 1988.

FERGUSON, Judge.

The State appeals from an order granting a defendant's motion to suppress.

At approximately 8:00 A.M., on July 3, 1986, Detectives Fernandez and Facchiano of the Metro-Dade narcotics squad entered the Miami Amtrak Station. Detective Fernandez testified that he noticed the defendant, Dorothy Cross, "perk up" and watch him as he walked around the station. *283 Twenty minutes later a boarding call was announced. Cross presented her ticket to the conductor who called out her South Carolina destination. Detective Fernandez allegedly became suspicious of Cross because of the small amount of luggage she carried — a small suitcase and handbag. As Cross walked to the loading platform to board, the two officers stopped her, identified themselves as narcotics officers, and asked her to speak with them. Cross agreed. Detective Fernandez asked permission to search her suitcase, advising her that she did not have to consent if she did not want to. Cross responded, "No, it's OK." The officers looked through the suitcase and removed several items of women's clothing including a black slip. Unfolding the black slip, they found a hard, baseball-shaped object wrapped in brown tape.

At the suppression hearing, Detective Fernandez testified that when he found the ball he immediately placed Cross under arrest and took her to the police station, where cocaine was discovered inside the ball. Inconsistently, Detective Facchiano testified that upon finding the hard ball, Detective Fernandez took out a knife, cut into the ball, discovered cocaine, and then arrested Cross. In view of the conflicting testimony, the trial court suppressed the evidence on the basis of two alternative theories. First, assuming Officer Facchiano's recollection of events was correct, the action of the officer in cutting into the wrapped ball exceeded the scope of Cross's consent. Second, assuming Detective Fernandez's version was accurate, finding the wrapped ball did not constitute probable cause to arrest Cross. We agree.

The settled rule governing review of a trial court's decision on a motion to suppress is that the ruling "comes to this court with a presumption of correctness [and] ... a reviewing court should not substitute its judgment for that of a trial court, but, rather, should defer to the trial court's authority as a factfinder." Wasko v. State, 505 So.2d 1314, 1316 (Fla. 1987); DeConingh v. State, 433 So.2d 501 (Fla. 1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); Rodriquez v. State, 189 So.2d 656 (Fla. 3d DCA 1966), cert. denied, sub. nom. Suarez v. Florida, 389 U.S. 848, 88 S.Ct. 66, 19 L.Ed.2d 116 (1967). See also State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979), and cases collected therein.

The trial judge saw the witnesses, heard all the testimony, and rejected the State's arguments, ruling that the search exceeded the scope of consent, that there was no probable cause to engage in the greater intrusion of cutting open the ball, and that there was no probable cause to arrest Cross upon finding the wrapped ball. Applying his common sense wisdom, the judge rejected the officer's characterization of the taped package as "suspicious," ruling:

An object which is hard, the size of a baseball and wrapped in tape is not an inherently suspect item. It is not any more suspect when it is found in a tote bag at a train station. Unless, of course, every object wrapped in tape is suspect. Without more it does not prove probable cause to arrest a person. There was nothing more in this case.

In recent months several cases have come before courts in this state chronicling the detention of travelers by narcotic interdiction officers and the seizure of "suspicious" items in their possession. These items have included: a gift-wrapped package, an oblong package, a soft or malleable package, a manila package, a tobacco pouch, a cosmetic bag, a medication container, and fruit.

There is no information in the record suggesting other common items included in the officers' list of containers which, per se, give rise to probable cause of illegal drug possession. There is no evidence indicating what percentage of the searches of these common items proves eventful so as to persuade us that this container search was not simply a fishing expedition. Based on no more than that the item was tape-wrapped, hard, and baseball-shaped, the officer concluded that he had probable cause for a destructive intrusion. The fourth *284 amendment requires more.[1]

The matter of consent became pivotal. What is included within the scope of a consent search is determined by the totality of the circumstances. Wells v. State, 492 So.2d 1375 (Fla. 5th DCA 1986). Significantly, no inquiry was made regarding the contents of the sealed package, nor was specific consent requested or given to search the object. We cannot agree that the appellant's consent to look into her bag was clear and unequivocal permission to unravel her undergarments in an open train terminal and remove and destroy a sealed container in order to reach its contents. A general consent to search an area does not automatically give a police officer the right to cut into or destroy any container located in the area. See generally State v. Fuksman, 468 So.2d 1067, 1070 (Fla. 3d DCA 1985) (refusing to "expand the consent exception by holding that a general and ill-defined consent to search a vehicle necessarily includes permission to search every package and container within the vehicle"); Hutchinson v. State, 505 So.2d 579 (Fla. 2d DCA 1987) (consent to look in purse was not consent to search small, unopened bags in purse), review granted, no. 70,526 (Fla. Sept. 25, 1987); Horvitz v. State, 433 So.2d 545 (Fla. 4th DCA 1983) (consent to look in briefcase did not constitute consent to smell gift-wrapped package found in briefcase). Compare Palmer v. State, 467 So.2d 1063 (Fla. 3d DCA 1985) (consent search upheld where officers were justified in opening distinctively wrapped, shaped, and sized packages that officers had probable cause to believe contained narcotics and defendant did not withdraw or limit consent when directly questioned about packages).

Assuming, without agreeing, that reasonable minds could disagree as to whether the search exceeded the scope of consent, the result ultimately turned on the credibility of the testimony and the trial court's own experience. In such cases we have said: "if a doubt exists as to whether the officer was reasonable in concluding that a search was justified, such a doubt must be resolved in favor of the defendant whose property was searched." Taylor v. State, 355 So.2d 180, 185 (Fla. 3d DCA) (quoting Miller v. State, 137 So.2d 21, 25 (Fla. 2d DCA 1962)), cert. denied, 361 So.2d 835 (Fla. 1962).

AFFIRMED.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON, and JORGENSON, JJ.

HUBBART, J., concurs.

JORGENSON, Judge, dissenting.

I respectfully dissent.

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Bluebook (online)
535 So. 2d 282, 1988 WL 4023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cross-fladistctapp-1988.