FRANK JOSEPH PIRRI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Pirri appealed his marijuana conviction, challenging whether his consent to search his vehicle was voluntary after an illegal police seizure. The Fourth District Court of Appeal reversed, finding the consent was involuntary because it resulted from an illegal search of the defendant's pockets and occurred under coercive circumstances without notification of his right to refuse.
The court held that the defendant's consent was not voluntary. The initial search requiring the defendant to empty his pockets was illegal because it exceeded the limited self-protective search permitted under Terry v. Ohio. Because an illegal seizure preceded the consent request and the officer failed to notify the defendant of his right to refuse, the defendant's compliance did not constitute free and voluntary consent.
[1] A search of a vehicle is involuntary when the consent is given under coercive circumstances and without notification of the right to refuse.
[2] A police officer's request for an individual to empty their pockets is unreasonable when the individual is not under formal arrest and the search is not limited to the di…
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Join FLexlaw to unlock all legal intelligence“the officer's request that the defendant empty his pockets was unreasonable since the seizure of the defendant was not a formal arrest. The police officer could only conduct a carefully limited, self-protective search of the outer clothing of such person to discover the presence of weapons.”
Establishes that the search exceeded constitutional bounds under Terry v. Ohio
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOfficer Gahn observed a truck and automobile on a deserted road and stopped the automobile after it made a U-turn. The driver said the truck belonged …
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PER CURIAM.
The issue in this appeal is whether the defendant’s consent to search his automobile was voluntary. We are of the opinion it was not and therefore we reverse. The appropriate test for voluntariness to be applied here depends upon the legality of a prior stop and the subsequent circumstances which we now detail. State v. Amerson, 392 So. 2d 311 (Fla. 4th DCA 1980). During a routine patrol, Officer Gahn noticed a truck and an automobile on the side of a deserted road. Subsequently, the automobile made a U-turn from its position behind the truck. Because there were no occupants in the truck, the officer stopped the automobile and asked its driver about it. The driver answered that the disabled truck belonged to a friend who would move it in the morning. After obtaining the driver’s name and address, the officer allowed the automobile to leave the area. Thereafter, the officer searched the truck and discovered that it contained marijuana residue. The officer reported his discovery to his headquarters and then began to search for the automobile’s occupants.
The officer spotted the automobile, its driver and two other individuals outside a farm house. He ordered the individuals to place their hands on the roof of the automobile. When other policemen arrived at the scene, the officer requested the men to empty their pockets. Thereafter, he conducted a field investigation. During his interrogation of the defendant, the officer requested to search his automobile without notifying him of his right to refuse. The defendant consented and several pounds of marijuana was discovered in the vehicle. The officer then arrested the defendant.
While probable cause is not required to justify a temporary detention, something more than mere suspicion is required. State v. Stevens, 354 So. 2d 1244 (Fla. 4th DCA 1978). In the instant case, the trial court found that the officer had sufficient facts to form the founded suspicion necessary to justify the stop. However, the officer’s request that the defendant empty his pockets was unreasonable since the seizure of the defendant was not a formal arrest. The police officer could only conduct a carefully limited, self-protective search of the outer clothing of such person to discover the presence of weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lundy, 334 So. 2d 671 (Fla. 4th DCA 1976); State v. Ramos, 378 So. 2d 1294 (Fla. 3d DCA 1979). As a result, the search here was illegal per se.
Having found an initial unconstitutional seizure, this court must decide whether the state proved by clear and convincing evidence that the defendant’s consent to the search of the vehicle was not a product of the illegal police action. We believe that the state failed to carry its burden. Upon confronting the defendant, the officer ordered him to place his hands on the automobile and then empty his pockets. Although he was not formally arrested, the evidence shows that he was at least de facto in custody. Because of the coercive setting and the officer’s failure to notify the defendant of his right to refuse the search, the defendant’s compliance with the officer’s request might possibly be deemed acquiescence to authority, but it certainly does not rise to the level of free and voluntary consent to search. The order under review must, accordingly, be reversed.
REVERSED.
LETTS, C.J., and DELL and WALDEN, JJ., concur.
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State v. Rizo, 463 So. 2d 1165 (Fla. 3d DCA 1984)…unlawful detention is inadmissible on that ground, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); see Terrell v. State, 429 So. 2d 778 (Fla. 3d DCA 1983); J.R.H. v. State, 428 So. 2d 786 (Fla. 2d DCA 1983); Pirri v. State, 428 So. 2d 285 (Fla. 4th DCA), review denied, 438 So. 2d 834 (Fla.1983), without consideration of the taint arising from the initial unlawful stop. Wong Sun; Lewis. Holding that the state failed to meet its burden of establishing the constitutional validity of th…
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Edwards v. State, 532 So. 2d 1311 (Fla. 1st DCA 1988)…1788, 20 L.Ed.2d 797 (1968);11 Robinson v. State, 388 So. 2d 286 (Fla. 1st DCA 1980);12 Ingram v. State, 364 So. 2d 821 (Fla. 4th DCA 1978).13 The search was therefore illegal. Moorehead v. State, 378 So. 2d 123 (Fla. 2d DCA 1980);14 Pirri v. State, 428 So. 2d 285 (Fla. 4th DCA), rev. den., State v. Pirri, 438 So. 2d 834 (Fla.1983).15 Furthermore, the trial court erred as a matter of law by using an incorrect standard for viewing the evidence at the suppression hearing which greatly reduced the burden of pro…
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C.Q. v. State, 801 So. 2d 304 (Fla. 5th DCA 2001)…his pockets exceeded the scope of a lawful protective frisk for weapons, even had C.Q. consented to a weapon search. See Thomas v. State, 644 So. 2d 597 (Fla. 5th DCA 1994); Harris; K.L. v. State, 699 So. 2d 819 (Fla. 1st DCA 1997); Pirri v. State, 428 So. 2d 285 (Fla. 4th DCA 1988). Accordingly, we reverse the order below which adjudicated C.Q. guilty of the misdemeanors and committed him to a level six commitment program. HARRIS and PETERSON, JJ., concur. . §§ 893.03(l)(c)(7), 893.13(6)(a) and (b), Fla.…
Authorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- State v. Stevens, 354 So. 2d 1244 (Fla. 4th DCA 1978)
- State v. Lundy, 334 So. 2d 671 (Fla. 4th DCA 1976)
- State v. Raunel Ramos, 378 So. 2d 1294 (Fla. 3d DCA 1979)
- State v. Amerson, 392 So. 2d 311 (Fla. 4th DCA 1980)