GILBERTO CORREA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Correa appealed the denial of his motion to suppress evidence of cocaine found in his tote bag after airport police searched it. The court reversed, holding that the trial court erred in finding voluntary consent to the search because the record did not support that defendant clearly and unambiguously consented.
The court held that the record did not support a finding of voluntary consent. Defendant's testimony that he did not hear or understand his right to refuse was unrebutted, no verbal consent was given, and the state failed to meet its burden of proving consent by clear and convincing evidence.
[1] A search conducted without a warrant is presumed unreasonable, and the state bears the burden of proving that an exception to the warrant requirement applies.
[2] Mere acquiescence to a show of authority by a law enforcement officer does not constitute voluntary consent to a search.
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Join FLexlaw to unlock all legal intelligence“for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search”
Establishes the legal standard for valid consent to search, requiring clear and affirmative agreement rather than mere acquiescence
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Join FLexlaw to unlock all legal intelligenceCorrea was traveling to Hawaii from Miami International Airport with only a tote bag when officers requested identification. Officers asked him to acc…
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BASKIN, Judge.
In this appeal, defendant Correa questions the denial by the trial court of his motion to suppress. Defendant pled no contest to charges of possession with intent to sell a controlled substance (cocaine) and reserved his right to appeal. The trial court found defendant had voluntarily consented to the search. We hold the record does not support the trial court’s decision, and we reverse.
Defendant Correa, traveling to Hawaii from Miami International Airport with only a tote bag and no other luggage, was asked by two officers for identification. He produced a Pan American identification card in his correct name identifying him as a Pan American employee. The officers asked him to accompany them to a less congested area. When defendant Correa left his tote bag behind, he was told to bring it with him.
Detective Johnson requested permission to search the tote bag. At the hearing on the motion to suppress, Detective Johnson did not testify. Officer Sadtler testified that Detective Johnson advised defendant he could refuse to be searched, but Officer Sadtler did not hear defendant Correa respond and did not know whether defendant Correa had heard or understood what was said. Defendant Correa testified that he did not remember being told he had a right to refuse permission to search and would not have allowed the search if he had known his rights. Examination disclosed that the bag contained a packet of cocaine rolled up inside some clothing.
Our review of the record leads us to the conclusion that the trial court erred in finding that defendant Correa consented to the search. When defendant was asked to accompany the police officers, he agreed to do so only because he did not feel that he had a choice. He was told to bring his bag with him. He did not consider refusing permission to a police officer because “when a police officer says to you T want to ask you some questions and I want to look in your bag’, that is exactly what you have to do.” He testified that he did not know he could refuse the search in the face of a show of authority.
The case before this court falls under the well recognized principles of law recognizing a distinction “between submission to the apparent authority of a law enforcement officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So. 2d 22, 27 (Fla.1975); Talavera v. State, 186 So. 2d 811 (Fla.2d DCA 1966).” Taylor v. State, 355 So. 2d 180, 183 (Fla.3d DCA 1978), cert. denied, 361 So. 2d 835 (Fla.1978); Ingram v. State, 364 So. 2d 821 (Fla. 4th DCA 1978).
Defendant Correa’s testimony was that he did not hear or understand his right to refuse the search. That testimony was unrebutted. Officér Sadtler testified he heard defendant being given his rights, but Detective Johnson did not testify. Officer Sadtler could not say whether defendant Correa heard or understood his rights. At no time did defendant Correa verbally consent to the search. The state, therefore, failed to meet its burden of proving consent by clear and convincing evidence. Raffield v. State, 362 So. 2d 138 (Fla. 1st DCA 1978).
We need not reach the issues concerning any unlawful detention prior to the search because our holding that defendant Correa gave no consent makes the determination of those issues unnecessary. We reverse the judgment below and remand the cause with directions to discharge the defendant.
Reversed and remanded.
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Citator
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State v. Wilfredo Navarro and Roerme Navarro, 464 So. 2d 137 (Fla. 3d DCA 1984)…at of the other Officers compels the Court to doubt that a knowing and voluntary consent to search the car was given. Certainly, the Evidence presented by the State does not show such an informed, knowing and voluntary consent. See Correa vs. State, 389 So. 2d 1204 (Fla. 3d DCA 1980). 5. The Court’s finding that a voluntary consent is lacking is buttressed by the fact that, although Television Personnel mysteriously arrived at the time of the arrest, this “consent” was not preserved or witnessed by them for p…
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Major v. State, 389 So. 2d 1203 (Fla. 3d DCA 1980)…zure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So. 2d 22, 27 (Fla.1975); Talavera v. State, 186 So. 2d 811 (Fla. 2d DCA 1966). [e. s.] See also, Correa v. State, 389 So. 2d 1204 (Fla. 3d DCA 1980). Major’s only verbal statement was a request that he himself be permitted to “open” the bag; his conduct likewise evinced the direct antithesis of a willingness for the officers to search it. It is plain that these circumstances p…
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Hutchinson v. State, 505 So. 2d 579 (Fla. 2d DCA 1987)…dant 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. Geisler, Officers Bryan and Walker, and the defendant. There was…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bailey v. State, 319 So. 2d 22 (Fla. 1975)
- Taylor v. State, 355 So. 2d 180 (Fla. 3d DCA 1978)
- Lelis v. State, 186 So. 2d 811 (Fla. 3d DCA 1966)
- Ingram v. State, 364 So. 2d 821 (Fla. 4th DCA 1978)
- Leveral "Sparky" Raffield v. State, 362 So. 2d 138 (Fla. 1st DCA 1978)