State v. Toussaint

168 So. 3d 308, 2015 Fla. App. LEXIS 9992, 2015 WL 4002453
CourtDistrict Court of Appeal of Florida
DecidedJuly 2, 2015
DocketNo. 5D14-1945
StatusPublished

This text of 168 So. 3d 308 (State v. Toussaint) 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. Toussaint, 168 So. 3d 308, 2015 Fla. App. LEXIS 9992, 2015 WL 4002453 (Fla. Ct. App. 2015).

Opinion

PALMER, J.

The State of Florida timely appeals the order entered by the trial court granting the motion to suppress filed by Jason Toussaint (the defendant). The order suppressed evidence that was obtained by law enforcement pursuant to a search of the defendant’s vehicle and person. Determining that the vehicle search was a permissible protective search, we reverse.1

The State charged the defendant with possession of cannabis with intent to sell or deliver,2 possession of cocaine,3 and possession of drug paraphernalia.4 The charges arose out of a traffic stop by a deputy with the Orange County Sheriff’s Department.

The defendant filed a pre-trial motion to suppress drugs and drug paraphernalia [310]*310seized from his car and his person, arguing that law enforcement lacked probable cause to conduct the vehicle search and, thus, the contraband seized from the vehicle and subsequently from the defendant’s person was subject to suppression. The matter proceeded to a hearing.

At the hearing, Paul Hopkins, of the Orange County Sheriffs Office, testified that he performed a traffic stop of the defendant’s ear at 11:00 at night in a high crime area, after observing the car making a right turn at a red light without stopping. Upon entering the car’s license plate information into his computer, Hopkins discovered that the owner of the vehicle was a “career offender.” Hopkins also testified that he saw the defendant make three movements in the car, which he described as follows:

The first one was a lean just to the center area of the vehicle. Secondary one was a very large movement within the car. That’s where, based on what I saw him do, I believed that’s when he, I believe, he put the contraband into his groin area. And then the last one was a very far lean to the right.

Hopkins testified that, in his experience, this type of behavior indicates that the person may be reaching for a weapon.

After the defendant stopped his vehicle, he was ordered out of the car and directed to the front of the police vehicle. He consented to a pat-down search, and no weapons were found on his person. Hopkins testified that he requested permission to search the defendant’s vehicle:

Q. Okay. Now, did he give you consent to search his vehicle?
A. He did in a roundabout way.
Q. Okay. Explain that to the Court.
A. His words were — when I asked if I could search his vehicle, he said, no, but you can if you want to.
Q. Okay.
A. Which is not uncommon for people to say to us.

While Hopkins was using the electronic citation writing program in his car, a backup officer arrived. Once back-up arrived, Hopkins began a search of the defendant’s car. Upon opening the console compartment located in between the front seats, Hopkins discovered a plastic baggie containing cocaine. Hopkins then placed the defendant under arrest, handcuffed him, and conducted a search of his person. The search uncovered cannabis.

Upon review of the evidence, the trial court entered a written order granting the defendant’s motion, ruling:

First, ... [t]he Court is unconvinced that the consent by [the defendant] was freely and voluntarily given and was an unequivocal consent to search. Not any type of consent will suffice, but instead, only consent that is “unequivocally, specifically, and intelligibly given, uncontaminated by any duress and coercion.” United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999) (citing United States v. Tillman, 963 F.2d 137, 143 (6th Cir.1992)); United States v. Cousin, No. 1:09-CR-89, 2010 WL 338087, at *4 (E.D.Tenn. Jan. 19, 2010); Tapia v. City of Albuquerque, 10 F.Supp.3d 1323, 1397-98 (Dist.N.M.2014).... The Court believes that the State has failed to meet their burden that the consent while freely and voluntarily given was not unequivocal ....
Second, the Court does not believe a “protective cursory search” of the vehicle was permissible.... The Court must look at the totality of the circumstances which the officer had facing him at the time of the decision to search the interi- or of the vehicle. In the case at bar, Hopkins had already removed [the defendant] from the vehicle, had [the de[311]*311fendant] fifteen to twenty feet from [the defendant’s] vehicle standing in front of Hopkins’ patrol car, and Hopkins further had Deputy Sheriff Cliborne standing next to [the defendant], Cliborne being in full uniform with a firearm, taser, and other law enforcement equipment. Furtive movements ... are insufficient to create reasonable suspicion that a defendant poses a threat without other objective facts. F.J.R. v. State, 922 So.2d 308, 311 (Fla. 5th DCA 2006). Leaning twice to the right and lifting up his buttocks along with [the defendant] having a criminal record and being in a high crime area is insufficient to give law enforcement officers authority to conduct a search of an automobile where the driver, [the defendant], is out of the car and being guarded by another law enforcement officer. The State has failed to show that the officer had a reasonable suspicion to search the vehicle. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Supreme Court made it clear that the law enforcement cannot search a recent occupant’s vehicle unless the occupant ([the defendant]) was within reaching distance of the passenger compartment or it is reasonable to believe that the vehicle contained evidence of the arrest, neither of those exceptions apply herein.

The State challenges this ruling, first contending that the trial court erred in determining that the defendant’s response to Hopkins’ request for permission to search the car provided insufficient consent to search the car. We disagree.

Generally, a law enforcement officer may validly seek consent to search a vehicle during a legal traffic stop. See Schneckloth v. Bustamante, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The officer need not have an objective justification or reasonable suspicion to ask for consent to search. See Watts v. State, 788 So.2d 1040, 1042-43 (Fla. 2d DCA 2001). To validate a war-rantless search, the State must show that the search falls within a constitutional exception, one of which is voluntary consent. See Hicks v. State, 852 So.2d 954, 960 (Fla. 5th DCA 2003). Consent must be given unequivocally and not be mere deference to the apparent authority of the police. See Thompson v. State, 555 So.2d 970, 971 (Fla. 2d DCA 1990). A search conducted pursuant to freely and voluntarily given consent is lawful. See Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998). Whether consent is voluntary is a question of fact to be determined under the totality of the circumstances and established by a preponderance of the evidence. See id.; Oliver v. State, 642 So.2d 840, 841 (Fla. 4th DCA 1994).

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Coolidge v. New Hampshire
403 U.S. 443 (Supreme Court, 1971)
Schneckloth v. Bustamonte
412 U.S. 218 (Supreme Court, 1973)
Michigan v. Tyler
436 U.S. 499 (Supreme Court, 1978)
Texas v. Brown
460 U.S. 730 (Supreme Court, 1983)
Michigan v. Long
463 U.S. 1032 (Supreme Court, 1983)
Arizona v. Gant
556 U.S. 332 (Supreme Court, 2009)
United States v. Cordell L. Tillman
963 F.2d 137 (Sixth Circuit, 1992)
United States v. Charles Scott Worley
193 F.3d 380 (Sixth Circuit, 1999)
Oliver v. State
642 So. 2d 840 (District Court of Appeal of Florida, 1994)
State v. Dilyerd
467 So. 2d 301 (Supreme Court of Florida, 1985)
Watts v. State
788 So. 2d 1040 (District Court of Appeal of Florida, 2001)
Hicks v. State
852 So. 2d 954 (District Court of Appeal of Florida, 2003)
Thompson v. State
555 So. 2d 970 (District Court of Appeal of Florida, 1990)
Cox v. State
975 So. 2d 1163 (District Court of Appeal of Florida, 2008)
Tapia v. City of Albuquerque
10 F. Supp. 3d 1323 (D. New Mexico, 2014)
State v. Kinnane
689 So. 2d 1088 (District Court of Appeal of Florida, 1996)
Brown v. State
863 So. 2d 459 (District Court of Appeal of Florida, 2004)
F.J.R. v. State
922 So. 2d 308 (District Court of Appeal of Florida, 2006)

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Bluebook (online)
168 So. 3d 308, 2015 Fla. App. LEXIS 9992, 2015 WL 4002453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-toussaint-fladistctapp-2015.