EDWARD HUNT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Hunt appeals the denial of his motion to suppress marijuana found in his jacket pocket during a police encounter in the woods. The court held that the search violated the Fourth Amendment because Hunt did not freely and voluntarily consent to it, but rather complied with what he perceived as police authority.
The marijuana seizure was illegal because Hunt did not freely and voluntarily consent to the search. The State failed to meet its burden of proving by clear and convincing evidence that Hunt's agreement was not merely acquiescence to the officer's apparent authority. Hunt's compliance with the officer's command to show his pockets was not voluntary consent.
[1] A defendant's consent to a search is not voluntary if it is merely an acquiescence to the apparent authority of the police.
[2] The State must prove by clear and convincing evidence that a defendant freely and voluntarily agreed to a search for consent to be valid.
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Join FLexlaw to unlock all legal intelligence“For consent to be found, the State must demonstrate by clear and convincing evidence that a defendant freely and voluntarily agreed to a search and that his agreement was not the product of a mere acquiescence in the apparent authority of the police to conduct a search.”
Establishes the legal standard for valid consent to a search under Florida law.
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Join FLexlaw to unlock all legal intelligenceOfficer Swartz was searching woods near Lake Maggiore Country Club for an indecent exposure suspect when he observed Hunt and another boy sitting by a…
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RYDER, Judge.
This is an appeal from an order denying appellant’s motion to suppress physical evidence.1
At the hearing on the motion, Officer Gary Swartz of the St. Petersburg Police Department testified that about noon on February 21, 1978, he was searching the woods next to the Lake Maggiore Country Club in St. Petersburg for someone who allegedly had been exposing himself. After losing the trail, Officer Swartz returned to his vehicle and drove about the area. While in the process, he observed two boys, one of whom was appellant, sitting by a creek in the woods. Thinking that one of them might be the exposer, Swartz parked his car, got out and walked into the woods. When he was fifty feet from the two boys, he saw appellant’s companion stuff a bag under his leg and try to conceal it.
When Swartz reached the boys’ position, he ordered them to stand up and produce identification. Where appellant’s companion had been sitting, the officer found a bag of marijuana. Swartz arrested the boy and had a security guard pat down both the companion and appellant. Swartz testified that except for what later happened, he would have let appellant go at that point.
However, Swartz then took both boys across the creek to a nearby picnic table. There he called for further assistance and, as they waited, Swartz talked with appellant. He asked appellant if he had any marijuana on him. Appellant said no. Then, noticing a bulge in appellant’s jacket pocket, he inquired of appellant as to what was in the pockets. Appellant replied that it was only his gloves. “Let’s see them,” Swartz said. Appellant then opened the flap to the pocket and pulled out two bags of marijuana. Swartz arrested appellant for possession of the marijuana which appellant subsequently moved to suppress.
In reviewing this case, we begin with the assumption, as apparently did counsel and the judge in the court below, that the seizure of the marijuana was legal only if appellant had consented to the “search” of his pockets. For consent to be found, the State must demonstrate by clear and convincing evidence that a defendant freely and voluntarily agreed to a search and that his agreement was not the product of a mere acquiescence in the apparent authority of the police to conduct a search. Bailey v. State, 319 So. 2d 22 (Fla.1975). Here, the State did not meet this burden. The only conclusion which can be drawn from the undisputed facts set out above is that appellant pulled the plastic bags from his pocket because he thought the police officer had the authority to tell him to do so.
Accordingly, we REVERSE and REMAND the case for further proceedings consistent with this opinion.
BOARDMAN, Acting C. J., and DAN-AHY, J., concur. . Appellant pleaded nolo contendere to possession of marijuana, reserving his right to appeal the denial of suppression.
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M. J. v. State, 399 So. 2d 996 (Fla. 1st DCA 1981)…pellant voluntarily produced the cannabis. However, a demand to disclose or produce a concealed object is treated as a search. State v. Oliver, 368 So. 2d 1331, 1335 (Fla. 3d DCA 1979), cert. dism. 383 So. 2d 1200 (Fla.1980). See also Hunt v. State, 371 So. 2d 205 (Fla. 2d DCA 1979); Conner v. State, 349 So. 2d 709 (Fla. 1st DCA 1977). Here, there was a demand to produce the cannabis before its actual production. Hence, there was a search. Of course, if the appellant initiated or invited the search, he could…
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Hutchinson v. State, 505 So. 2d 579 (Fla. 2d DCA 1987)…ust demonstrate by clear and convincing evidence that a defendant freely and voluntarily agreed to a search and that his agreement was not the product of a mere acquiescence in the apparent authority of the police to conduct a search. Hunt v. State, 371 So. 2d 205 (Fla. 2d DCA 1979). See also Correa v. State, 389 So. 2d 1204 (Fla. 3d DCA 1980); Major v. State, 389 So. 2d 1203 (Fla. 3d DCA 1980); Ingram v. State, 364 So. 2d 821 (Fla. 4th DCA 1978). The witnesses at the suppression hearing consisted of Mr. Gei…
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J.R.H. v. State, 428 So. 2d 786 (Fla. 2d DCA 1983)…not free to leave, and inasmuch as they had not been informed of their Miranda rights, it cannot be seriously argued that the evidence is clear and convincing that the youths’ response to his question about the satchel was voluntary. Hunt v. State, 371 So. 2d 205 (Fla. 2d DCA 1979); see also Bailey v. State, 319 So. 2d 22 (Fla.1975). Thus the search of the satchel and the seizure of its contents were noncon-sensual and illegal, and appellant’s motion to suppress should have been granted. Hunt. Accordingly,…
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- Bailey v. State, 319 So. 2d 22 (Fla. 1975)