STATE OF FLORIDA, APPELLANT,
v.
JAMES STEWART CHAMPION, APPELLEE
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The State appealed a suppression order in a drug trafficking case where cocaine was found during a pat-down search at an airport. The appellate court reversed, holding that the defendant voluntarily consented to the search, making the initial basis for the stop (the Markonni drug profile) irrelevant.
The court reversed the suppression order, holding that the State met its burden of demonstrating voluntary consent through clear and convincing evidence. Because the defendant voluntarily consented to the warrantless search after being informed of his right to refuse, the evidence was admissible, and the court did not need to address the validity of the Markonni drug profile.
[1] A search conducted pursuant to a defendant's voluntary consent is valid, even if the initial stop may have been unlawful.
[2] The State bears the burden of proving voluntary consent for a warrantless search.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We do not reach this issue because we conclude that the evidence presented at the hearing on motion to suppress clearly showed that defendant consented to the pat-down search.”
The court's rationale for avoiding the difficult constitutional question about the drug profile by finding voluntary consent as an alternative ground for reversal.
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Join FLexlaw to unlock all legal intelligencePolice officers approached the defendant at Fort Lauderdale airport pursuant to a drug profile. They identified themselves, explained they were invest…
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BERANEK, Judge.
This is an appeal by the State from an order granting defendant’s motion to suppress. The evidence was obtained in a pat-down search of the defendant when he was approached by police officers in an airport. The initial approach was pursuant to the so-called Markonni drug profile described in United States v. Elmore, 595 F. 2d 1036 (5th Cir. 1979). We reverse.
The search occurred in the Fort Lauder-dale airport. Cocaine was found hidden on the defendant’s person. Defendant moved to suppress and a hearing on the motion occurred in which three police officers testified on behalf of the State. Appellee did not testify.
A close reading of the transcript indicates much argument concerning the validity of the Markonni drug profile and whether this profile could form the basis of a defendant’s being stopped and searched. We do not reach this issue because we conclude that the evidence presented at the hearing on motion to suppress clearly showed that defendant consented to the pat-down search.
The transcript on the motion to suppress indicates a great deal of argument and colloquy between counsel and the court and only limited actual testimony. The actual evidence was simply that two police officers approached defendant and identified themselves. They told the defendant they were involved in an investigation of drug trafficking and explained that their job was based only on general public cooperation. They explained that the defendant would have to consent to the search before it would be performed and that he did not have to give his consent. The testimony was that the defendant readily and spontaneously consented to the request to search by the officers. Both officers stated defendant was free to go at any time. There was no evidence of coercion.
We conclude that the trial court erred in suppressing this evidence. The State had the burden of demonstrating voluntary consent because the search was without a warrant. Here, the State met that burden by introducing clear and convincing evidence of defendant’s consent. In Husted v. State, 370 So. 2d 853, 854 (Fla.3d DCA 1979), the court considered a similar situation and stated:
As the court said in Bretti v. Wainwright, 439 F. 2d 1042, 1045, 1046 (5th Cir. 1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971): “We need not here decide whether the arrest of appellant was legal or not, for, even if illegal, we think that the subsequent consent was untainted
* * * * * *
While warnings prior to a consensual search may not have the same indispensability as those required prior to a confession . . . they do help ensure that the consent is free, voluntary and untainted by the arrest’s possible illegality. In the instant case the presence of these warnings leads us to conclude that any coercion flowing from the possible illegality of appellant’s arrest was dissipated. We therefore hold that the evidence supports the conclusion that appellant voluntarily consented to the search of his apartment.”
We believe this case to be governed by the same rationale. The order suppressing the evidence is reversed and the cause remanded for further proceedings.
REVERSED AND REMANDED.
HERSEY and GLICKSTEIN, JJ., concur.
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State v. Avery, 531 So. 2d 182 (Fla. 4th DCA 1988)…d, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980); Rosa v. State, 508 So. 2d 546 (Fla. 3d DCA), rev. denied, 515 So. 2d 230 (Fla.1987); Elsleger v. State, 503 So. 2d 1367 (Fla. 4th DCA), dismissed, 511 So. 2d 298 (Fla.1987); State v. Champion, 383 So. 2d 984 (Fla. 4th DCA 1980). The state contends that Avery’s consent was given in the course of an “encounter.” See Florida v. Royer; United States v. Mendenhall; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is undisputed that there…1 / 2
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State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994)…a. 3d DCA 1990); Windes v. State, 547 So. 2d 346 (Fla. 3d DCA 1989); State v. Gribeiro, 513 So. 2d 1323 (Fla. 3d DCA 1987); State v. Martinez, 459 So. 2d 1062 (Fla. 3d DCA 1984); State v. Howard, 394 So. 2d 440 (Fla. 3d DCA 1981); State v. Champion, 383 So. 2d 984 (Fla. 4th DCA 1980). In this case, the trial judge was the fact finder. He heard the police officer’s testimony, which was the sole evidence presented. But, the judge did not have to believe the police officer’s testimony. Obviously, he did not, si…
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State v. Milwood, 430 So. 2d 563 (Fla. 3d DCA 1983)…te, 370 So. 2d 853 (Fla. 3d DCA 1979) (trier of fact may find such warning breaks connection with any prior illegal police activity so as to render subsequent consent un-tainted, uncoerced and truly voluntary in character). Accord State v. Champion, 383 So. 2d 984 (Fla. 4th DCA 1980). See United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497, 512 (1980). The record in the case before us clearly establishes that the defendant’s airline ticket and identification were returned…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979)
- Husted v. State, 370 So. 2d 853 (Fla. 3d DCA 1979)
- Chalk v. United States, 404 U.S. 943 (U.S. 1971)
- Harvin v. United States, 404 U.S. 943 (U.S. 1971)
- Bretti v. Louie L. Wainwright, 439 F.2d 1042 (5th Cir. 1971)