JOHNNY L. LEONARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Leonard pleaded nolo contendere to possession of a controlled substance after a traffic stop, reserving the right to appeal the denial of his motion to suppress. The Fourth District reversed his conviction, holding that a deputy's warrantless search of his vehicle exceeded the scope of consent Leonard had given for a limited search for weapons.
The court held that Leonard's consent to search for weapons was limited in scope and did not extend to a general exploratory search. Ward's subsequent search of the vehicle's interior and the pouch, conducted without separate consent from Leonard, exceeded the bounds of the initial consent and was therefore unconstitutional.
[1] A person who consents to a search may limit the scope of that search.
[2] A consent search is reasonable only when kept within the bounds of the consent given.
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“One who consents to a search may limit the scope of that search.”
Establishes the foundational principle that consent to search is not blanket and may be restricted
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Join FLexlaw to unlock all legal intelligenceOfficer Murphy pulled over Leonard for speeding and following too closely. After Leonard parked at a grocery store, Murphy stopped him and asked for h…
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PER CURIAM.
Appellant, Johnny L. Leonard, pled nolo contendere to possession of a controlled sub stance and reserved the right to appeal the trial court’s denial of his motion to suppress physical evidence.
While on traffic patrol, Murphy, a highway patrolman, saw appellant speeding in the opposite direction and following another car too closely. Murphy turned around and pursued appellant. By the time Murphy caught up with him, appellant had pulled into a grocery store parking lot, parked, and was walking toward the grocery store. Murphy stopped appellant and asked him for his license. When appellant opened the glove compartment for his registration, Murphy saw a small manilla envelope, several small pieces of folded tin foil, and some cigarette wrapping paper. Murphy did not place appellant under arrest, and testified that he did not intend to do so.
However, because appellant (whom Murphy knew and who was reputed to be “involved with drugs”) acted nervously, Murphy asked if appellant had a gun. Murphy testified that appellant said no, and authorized a search of the car for a gun. Appellant testified that Murphy began to search the car and only told appellant why when appellant asked him what he was doing. No other witnesses testified as to consent.
Murphy ran his hand under the front seat, looked in the back seat and into a tape container in the back seat, and looked into the trunk. Murphy found no gun.
However, because appellant was still nervous, Murphy called for backup. Sheriff’s Deputy Ward arrived. Murphy testified that he told Ward to watch the car while he cited appellant. Ward testified that Murphy told him that appellant had consented to a search of the vehicle. Wárd and appellant both testified that appellant did not tell Ward that he could search the vehicle. Ward looked into the car and saw a small pouch lying on the front seat. He unzipped the pouch and saw a white powdery substance. Appellant tried to take the pouch from Ward when Ward brought the pouch to Murphy to show its contents. Murphy placed appellant under arrest for possession of a controlled substance.
Appellant contends that the trial court erred in denying his motion to suppress because he consented only to a limited search of his automobile for weapons and therefore when the officers conducted a general exploratory search of the automobile they acted without his consent.
One who consents to a search may limit the scope of that search. United States v. Dichiarinte, 445 F. 2d 126 (7th Cir. 1971). A consent search is reasonable only when kept within the bounds of the consent, and the scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The trial court resolved the conflicting evidence in favor of the State and denied appellant’s motion to suppress the evidence. It is within the trial court’s province to determine the credibility of the witnesses and to make factual findings. Ordinarily, if the findings are supported by the record, they may not be overturned on appeal. State v. Wise, 356 So. 2d 920 (Fla. 2d DCA 1978); Johnson v. State, 386 So. 2d 302 (Fla. 5th DCA 1980); State v. Webb, 398 So. 2d 820 (Fla.1981).
However, to support a finding of consent to search without a warrant, the State must present clear and convincing evidence. Bailey v. State, 319 So. 2d 22 (Fla.1976).
The evidence establishes at best that appellant consented to Murphy’s search for a gun. Murphy conducted and completed that search before calling the backup officer to the scene.
The evidence does not clearly and convincingly demonstrate that appellant consented to a continuing, blanket search, or consented to a second search by Ward. Ward’s subsequent nonconsensual search exceeded the scope of any consent given to Officer Murphy.
The trial court erred when it denied appellant’s motion to suppress the evidence and we must reverse the judgment of conviction.
REVERSED.
HURLEY and DELL, JJ., and PURDY, H. MARK, Associate Judge, concur.
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State v. Fuksman, 468 So. 2d 1067 (Fla. 3d DCA 1985)…cluding post-De-nehy cases, contain statements that volun-tariness must be shown by clear and convincing evidence, Bailey; State v. Santamaria, 464 So. 2d 197 (Fla. 3d DCA 1985); State v. Spencer, 432 So. 2d 718 (Fla. 3d DCA 1983); Leonard v. State, 431 So. 2d 614 (Fla. 4th DCA 1983), and while it is unusual for the court to so casually overrule prior case law, we will not, and cannot under Hoffman v. Jones, 280 So. 2d 431, 433-34 (Fla.1973), assume that the supreme [*1069] court’s pronouncement was mistaken…
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Elsleger v. State, 503 So. 2d 1367 (Fla. 4th DCA 1987)…find that the state proved voluntary consent by clear and convincing evidence. Appellant contends that the clear and convincing standard is applicable in the present case, citing Jordan v. State, 384 So. 2d 277 (Fla. 4th DCA 1980); Leonard v. State, 431 So. 2d 614 (Fla. 4th DCA 1983), and Racz v. State, 486 So. 2d 3 (Fla. 4th DCA 1986). In Jordan, this court stated: A search is valid if consent thereto is freely and voluntarily given. Jackson v. State, 132 So. 2d 596 (Fla.1961). When the state relies upon c…
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Wells v. State, 492 So. 2d 1375 (Fla. 5th DCA 1986)…ieve that the automobile or any container therein held any contraband. Consent searches operate on different rules than probable cause searches. The State agrees that a consensual search may be restricted in terms of time or area, Leonard v. State, 431 So. 2d 614 (Pla. 4th DCA 1983), and must be terminated upon withdrawal of consent. Goldberg v. State, 407 So. 2d 352 (Pla. 4th DCA 1981). No such rules apply in probable cause searches. What is included within the scope of a consent to search is ordinarily to…
Authorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- State v. Webb, 398 So. 2d 820 (Fla. 1981)
- Bailey v. State, 319 So. 2d 22 (Fla. 1975)
- United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971)
- Johnson v. State, 386 So. 2d 302 (Fla. 5th DCA 1980)
- J. M. v. State, 356 So. 2d 920 (Fla. 3d DCA 1978)
- Jones v. State, 356 So. 2d 920 (Fla. 3d DCA 1978)