NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
TRUMAINE MOODY, ) ) Appellant, ) ) v. ) Case No. 2D16-5533 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________)
Opinion filed July 25, 2018.
Appeal from the Circuit Court for Hendry County; James D. Sloan, Judge.
Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Andrew Tetreault, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, Judge.
Following the denial of his dispositive motion to suppress and his entry of
a no contest plea, Trumaine Moody appeals his judgment and sentence for possession
of cocaine in case 16-CF-81. He also challenges the revocations of his probation and
sentences in cases 12-CF-516, 12-CF-518, and 12-CF-520. We affirm without
comment the revocations and resulting sentences in those three cases. However, because the State failed to show by clear and convincing evidence that there was an
unequivocal break between the initial illegal stop and Mr. Moody's alleged consent to
search, we reverse and vacate Mr. Moody's conviction and sentence for possession of
cocaine in case 16-CF-81.
An anonymous tipster flagged down a deputy of the Hendry County
Sheriff's Office to tell him that a black male wearing a red, yellow, and black jacket was
carrying a gun and standing outside a convenience store. The deputy called another
deputy, and they met in front of the convenience store, where they observed Mr. Moody,
a black male fitting the tipster's description. Upon noticing the patrol cars, Mr. Moody
stuck his hands in his pockets and walked hunched over into the store. The deputy
followed Mr. Moody into the store, where he stopped and patted him down in search of
a weapon. After not finding a weapon, the deputy explained to Mr. Moody why he had
stopped him. The deputy then asked Mr. Moody if he had anything in his pockets that
he "shouldn't have." When Mr. Moody said "no," the deputy asked if he could search
Mr. Moody’s pockets. Mr. Moody replied, "I ain't got nothing, yeah, go ahead." The
deputy searched Moody’s pockets and found cocaine. The deputy testified that "maybe
a minute" elapsed between the first stop and frisk and the subsequent search of the
pockets.
Mr. Moody moved to suppress the cocaine. He argued that because the
initial stop was unlawful, he did not voluntarily consent but rather acquiesced to the
deputy's request to search his pockets. The trial court, however, denied Mr. Moody's
motion. The trial court found that even though the first stop and frisk was illegal as
there was "nothing . . . that would support any kind of search at that point," the trial court
-2- concluded that Mr. Moody's consent to search was voluntary and was not "fruit of the
poisonous tree."1 The trial court reasoned that Mr. Moody's consent to the second
search was voluntary because the deputy's conversation with Mr. Moody was sufficient
to dispel Mr. Moody's "initial fear [of] the officer." We disagree.
In reviewing a trial court's ruling on a motion to suppress, "this court uses
a dual standard." Young v. State, 207 So. 3d 267, 269 (Fla. 2d DCA 2016). That is,
while we defer to the trial court's findings of fact that are supported by competent
substantial evidence, we review de novo the trial court's "application of the law to the
facts." Id. (citing Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA 2003)).
The voluntariness of a defendant's consent is determined from the totality
of circumstances. Hardin v. State, 18 So. 3d 1246, 1248 (Fla. 2d DCA 2009) (citing
Kutzorik v. State, 891 So. 2d 645, 647 (Fla. 2d DCA 2005)). "[W]hen consent is
obtained after illegal police activity . . . the unlawful police action presumptively taints
and renders involuntary any consent to search." Ingraham v. State, 811 So. 2d 770,
774 (Fla. 2d DCA 2002) (alteration in original) (quoting Connor v. State, 803 So. 2d 598,
609 (Fla. 2001)). The State may rebut this presumption of involuntariness "only if there
is clear and convincing proof of an unequivocal break in the chain of illegality sufficient
to dissipate the taint of prior official illegal action."2 Norman v. State, 379 So. 2d 643,
1TheState does not challenge the trial court's determination that the initial stop of Mr. Moody was unlawful. 2"Although the State normally must prove voluntariness of consent only by a preponderance of the evidence, '[w]here there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action.' " Ballenger v. State, 16 So. 3d 1022, 1025 (Fla. 2d DCA 2009) (alteration in original) (quoting Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992)).
-3- 647 (Fla. 1980). "[T]he taint may be dissipated by advice to the defendant of his right to
refuse to consent so as to render the subsequent consent free and voluntary." State v.
Boyd, 615 So. 2d 786, 790 (Fla. 2d DCA 1993). To determine whether the evidence
was obtained by exploitation of the illegal stop or instead by means sufficiently
distinguishable so as to purge the evidence of the primary taint, we take into account
three factors: "(1) the time elapsed between the illegality and the acquisition of the
evidence; (2) the presence of intervening circumstances; and (3) the purpose and
flagrancy of the official misconduct." State v. H.D., 113 So. 3d 917, 918 (Fla. 2d DCA
2013) (quoting State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006)).
This court previously ruled on a case involving the denial of a motion to
suppress with a nearly indistinguishable fact pattern. In Reed v. State, 577 So. 2d 1362
(Fla. 2d DCA 1991), police officers stopped two black men based on a radio dispatch
that two black males involved in drug activity were believed to be carrying firearms in
the area. Id. at 1363. The officers immediately advised the defendant that they were
going to conduct a pat down for weapons. Id. After not finding any weapons on the
defendant, one of the officers explained to the defendant why they were in the area. Id.
The officer then informed the defendant of his right to refuse consent and asked the
defendant if he could search his pockets. Id.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
TRUMAINE MOODY, ) ) Appellant, ) ) v. ) Case No. 2D16-5533 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________)
Opinion filed July 25, 2018.
Appeal from the Circuit Court for Hendry County; James D. Sloan, Judge.
Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Andrew Tetreault, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, Judge.
Following the denial of his dispositive motion to suppress and his entry of
a no contest plea, Trumaine Moody appeals his judgment and sentence for possession
of cocaine in case 16-CF-81. He also challenges the revocations of his probation and
sentences in cases 12-CF-516, 12-CF-518, and 12-CF-520. We affirm without
comment the revocations and resulting sentences in those three cases. However, because the State failed to show by clear and convincing evidence that there was an
unequivocal break between the initial illegal stop and Mr. Moody's alleged consent to
search, we reverse and vacate Mr. Moody's conviction and sentence for possession of
cocaine in case 16-CF-81.
An anonymous tipster flagged down a deputy of the Hendry County
Sheriff's Office to tell him that a black male wearing a red, yellow, and black jacket was
carrying a gun and standing outside a convenience store. The deputy called another
deputy, and they met in front of the convenience store, where they observed Mr. Moody,
a black male fitting the tipster's description. Upon noticing the patrol cars, Mr. Moody
stuck his hands in his pockets and walked hunched over into the store. The deputy
followed Mr. Moody into the store, where he stopped and patted him down in search of
a weapon. After not finding a weapon, the deputy explained to Mr. Moody why he had
stopped him. The deputy then asked Mr. Moody if he had anything in his pockets that
he "shouldn't have." When Mr. Moody said "no," the deputy asked if he could search
Mr. Moody’s pockets. Mr. Moody replied, "I ain't got nothing, yeah, go ahead." The
deputy searched Moody’s pockets and found cocaine. The deputy testified that "maybe
a minute" elapsed between the first stop and frisk and the subsequent search of the
pockets.
Mr. Moody moved to suppress the cocaine. He argued that because the
initial stop was unlawful, he did not voluntarily consent but rather acquiesced to the
deputy's request to search his pockets. The trial court, however, denied Mr. Moody's
motion. The trial court found that even though the first stop and frisk was illegal as
there was "nothing . . . that would support any kind of search at that point," the trial court
-2- concluded that Mr. Moody's consent to search was voluntary and was not "fruit of the
poisonous tree."1 The trial court reasoned that Mr. Moody's consent to the second
search was voluntary because the deputy's conversation with Mr. Moody was sufficient
to dispel Mr. Moody's "initial fear [of] the officer." We disagree.
In reviewing a trial court's ruling on a motion to suppress, "this court uses
a dual standard." Young v. State, 207 So. 3d 267, 269 (Fla. 2d DCA 2016). That is,
while we defer to the trial court's findings of fact that are supported by competent
substantial evidence, we review de novo the trial court's "application of the law to the
facts." Id. (citing Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA 2003)).
The voluntariness of a defendant's consent is determined from the totality
of circumstances. Hardin v. State, 18 So. 3d 1246, 1248 (Fla. 2d DCA 2009) (citing
Kutzorik v. State, 891 So. 2d 645, 647 (Fla. 2d DCA 2005)). "[W]hen consent is
obtained after illegal police activity . . . the unlawful police action presumptively taints
and renders involuntary any consent to search." Ingraham v. State, 811 So. 2d 770,
774 (Fla. 2d DCA 2002) (alteration in original) (quoting Connor v. State, 803 So. 2d 598,
609 (Fla. 2001)). The State may rebut this presumption of involuntariness "only if there
is clear and convincing proof of an unequivocal break in the chain of illegality sufficient
to dissipate the taint of prior official illegal action."2 Norman v. State, 379 So. 2d 643,
1TheState does not challenge the trial court's determination that the initial stop of Mr. Moody was unlawful. 2"Although the State normally must prove voluntariness of consent only by a preponderance of the evidence, '[w]here there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action.' " Ballenger v. State, 16 So. 3d 1022, 1025 (Fla. 2d DCA 2009) (alteration in original) (quoting Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992)).
-3- 647 (Fla. 1980). "[T]he taint may be dissipated by advice to the defendant of his right to
refuse to consent so as to render the subsequent consent free and voluntary." State v.
Boyd, 615 So. 2d 786, 790 (Fla. 2d DCA 1993). To determine whether the evidence
was obtained by exploitation of the illegal stop or instead by means sufficiently
distinguishable so as to purge the evidence of the primary taint, we take into account
three factors: "(1) the time elapsed between the illegality and the acquisition of the
evidence; (2) the presence of intervening circumstances; and (3) the purpose and
flagrancy of the official misconduct." State v. H.D., 113 So. 3d 917, 918 (Fla. 2d DCA
2013) (quoting State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006)).
This court previously ruled on a case involving the denial of a motion to
suppress with a nearly indistinguishable fact pattern. In Reed v. State, 577 So. 2d 1362
(Fla. 2d DCA 1991), police officers stopped two black men based on a radio dispatch
that two black males involved in drug activity were believed to be carrying firearms in
the area. Id. at 1363. The officers immediately advised the defendant that they were
going to conduct a pat down for weapons. Id. After not finding any weapons on the
defendant, one of the officers explained to the defendant why they were in the area. Id.
The officer then informed the defendant of his right to refuse consent and asked the
defendant if he could search his pockets. Id. The defendant responded that he would
not mind, and the officer searched and found illegal drugs in the defendant’s pocket. Id.
This court reversed the denial of the motion to suppress, holding that "there was no
unequivocal break between the illegal stop of the [defendant] and his consent to the
search." Id. Accordingly, even though the officer advised the defendant of his right to
-4- refuse consent, this court concluded that the defendant's consent was tainted by the
illegal stop. Id.
Here, we conclude that the State did not show by clear and convincing
evidence that there was an unequivocal break between the initial illegal stop and Mr.
Moody's alleged consent to search. Like in Reed, the only intervening circumstances
between the illegality and the acquisition of the evidence was the deputy's explanation
as to why he had stopped Mr. Moody and the deputy's request to search Mr. Moody's
pockets. Such facts do not sufficiently purge the taint of the prior official illegal action.
See id. Nor does the brief amount of time—about one minute—remove that taint. And
while we recognize that the official misconduct does not appear to be flagrant or driven
by some unlawful purpose, the record is clear that the deputy did not attempt to
dissipate the taint of the initial illegal stop in any way. The deputy simply exploited the
initial unlawful stop and frisk by asking Mr. Moody if he had anything illegal on him and
whether he could search his pockets. Indeed, unlike the officer's conduct in Reed, the
deputy here failed to inform Mr. Moody that he was free to either refuse consent or
leave prior to the search of his pockets. As such, because the State failed to clearly
and convincingly show an unequivocal break in the chain of illegality sufficient to
dissipate the taint of the prior official illegal action, the trial court erred in denying Mr.
Moody's motion to suppress.
Therefore, we reverse the trial court's denial of Mr. Moody's motion to
suppress and vacate his judgment and sentence in case 16-CF-81. We affirm in all
other respects.
Affirmed in part, reversed in part, and vacated.
-5- MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.
-6-