JEFFREY NEASE A/K/A MICHAEL COLWELL A/K/A LOUIS POYNTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey Nease was convicted of trafficking in cocaine and possession of methaqualone after drugs were discovered during a search at Fort Lauderdale airport. The court reversed his conviction, holding that police lacked probable cause or valid consent to search his luggage when he withdrew his initial consent and attempted to leave the area.
The court held that the initial stop was not justified and was merely a voluntary citizen-police encounter. Nease had the right to withdraw his consent, and without probable cause or valid consent, the search of his bags was illegal. The act of running away, while suspicious, did not provide the probable cause necessary to arrest him or search his property.
[1] A seizure of luggage based on less than probable cause is unreasonable under the Fourth Amendment when the detention extends beyond a brief investigatory period.
[2] The totality of circumstances, including a drug courier profile, nervous demeanor, and inconsistent statements, may be considered in determining probable cause.
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Join FLexlaw to unlock all legal intelligence“The facts as outlined above were simply not sufficient to justify the initial stop.”
Establishes that the profile characteristics observed were constitutionally insufficient as grounds for detention.
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Join FLexlaw to unlock all legal intelligencePolice observed Nease at an airport ticket counter paying cash for a one-way ticket to Cincinnati and noted he appeared nervous. After identifying the…
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BERANEK, Judge.
Appellant was charged with and found guilty of trafficking in cocaine and possession of methaqualone. He raises four points on appeal, one of which is disposi-tive. We hold that the trial court erred in denying appellant’s motion to suppress the drugs.
This is an airport drug courier profile seizure. Agents observed appellant at the Delta Airlines ticket counter at the Fort Lauderdale airport. He was carrying with him a garment bag and a small shoulder bag. Appellant paid cash for a one-way ticket from Fort Lauderdale to Cincinnati. Agents testified that he appeared nervous and moved from foot to foot while he was in the ticket line. They approached appellant and after identifying themselves as police officers, they received permission to look at his ticket and his driver’s license. Noting different names on the ticket and license, the agents again identified themselves, this time as narcotics agents, and asked permission to hand search appellant’s luggage. Appellant initially consented and accompanied the agents to a small storage area. As they neared the area, appellant refused to enter. He then turned and ran but was tackled and arrested by two of the agents. While the agents were chasing appellant, another agent went through appellant’s bags and found cocaine. After appellant was arrested, a search of his person revealed six methaqualone tablets.
The facts as outlined above were simply not sufficient to justify the initial stop. See Florida v. Royer, — U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and Horvitz v. State, 433 So. 2d 545 (Fla. 4th DCA 1983). It should be noted that the state in its brief characterizes the initial contact between appellant and the police as a voluntary citizen/police encounter. We agree with this characterization. Being a voluntary encounter, appellant had the right to withdraw any consent which he might have given previously. Lacking probable cause and appellant’s consent, the agents illegally searched the bags. Furthermore, the mere withdrawal of consent did not give the agents probable cause to arrest appellant after tackling him. We do not view appellant’s leaving the scene as an abandonment of his luggage. Obviously, a voluntary citizen/police encounter without probable cause can not be used as a test to see if the supposedly innocent citizen incriminates himself by running away. Realistically, we all know that running from the police indicates guilt or fear warranting further investigation. However, the constitutional requirement of probable cause can not be satisfied by the bootstrapping effect of tackling the apparently innocent person who chooses to sprint instead of politely declining to be searched.
The case is remanded with directions to discharge appellant.
REVERSED AND REMANDED.
DOWNEY and WALDEN, JJ., concur.
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State v. Johnson, 516 So. 2d 1015 (Fla. 5th DCA 1987)…L.Ed.2d 889 (1968)) type stop. Thus, the question of whether the profile is sufficiently reliable to justify a Terry type stop has not been reached in these cases. See State v. Grant, 392 So. 2d 1362 (Fla. 4th DCA 1981) (pre-Royer); Nease v. State, 442 So. 2d 325 (Fla. 4th DCA 1983) (post-Royer). See also State v. Bankston, 435 So. 2d 269 (Fla. 3d DCA 1983) (court declined to reexamine its dictum in its Royer decision that a “conformance, without more [e.o.] to one or more elements of the profile does not am…
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Nease v. State, 484 So. 2d 67 (Fla. 4th DCA 1986)…PER CURIAM. Appellant was tried and convicted in 1982 for trafficking in cocaine and for possession of methaqualone. We reversed the conviction holding that the trial court erred when it denied the motion to suppress. Nease v. State, 442 So. 2d 325 (Fla. 4th DCA 1983), petition for review denied, 453 So. 2d 45 (Fla.1984). The United States Supreme Court, — U.S. -, 105 S.Ct. 1835, 85 L.Ed.2d 136, subsequently granted the state’s petition for certiorari and remanded the cause to this court for r…
Authorities Cited
- Florida v. Royer, 460 U.S. 491 (U.S. 1983)
- Horvitz v. State, 433 So. 2d 545 (Fla. 4th DCA 1983)