THE STATE OF FLORIDA, APPELLANT,
v.
HUGO CESAR RODRIGUEZ, APPELLEE
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Florida appeals the suppression of cocaine seized from Rodriguez during a consent search. The court affirmed the suppression order, holding that the consent was limited to a brief tactile examination of the boot and did not authorize seizure of the object, and that merely feeling a soft object in a boot does not establish probable cause for seizure and search.
The court held that the consent was limited to a feeling of the boot and did not authorize seizure of the object, and that merely feeling a soft, malleable object does not establish probable cause for seizure and search absent other sufficiently suspicious circumstances.
[1] A limited consent to search a person's boot, extending only to a pat-down, does not authorize the seizure and removal of an object from the boot.
[2] A defendant's nervousness and the tactile sensation of a soft object in a boot, without more, do not establish probable cause for a seizure and search.
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Join FLexlaw to unlock all legal intelligence“Rodriguez's consent was limited to a "feeling" of his boot and did not extend to a seizure of whatever may have been felt.”
Establishes the trial court's key factual finding limiting the scope of consent, which the appellate court found supported by sufficient evidence.
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Join FLexlaw to unlock all legal intelligencePolice conducted a search of Rodriguez's person with limited consent. The trial court found that Rodriguez's consent was restricted to a 'feeling' of …
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PER CURIAM.
The state appeals an order suppressing cocaine which was seized from Rodriguez’s person. It attempts to justify the search on consent and probable cause grounds. We reject both arguments and affirm.
With regard to the consent issue, we note that the trial judge found that Rodriguez’s consent was limited to a “feeling” of his boot and did not extend to a seizure of whatever may have been felt. Applying a presumption of correctness and viewing the evidence in a manner most favorable to the trial court’s ruling, Johnson v. State, 438 So. 2d 774 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984); State v. Gonzalez, 447 So. 2d 1015 (Fla. 3d DCA 1984), we conclude that there is sufficient evidence to support the trial court’s order on the consent issue.
We reject the state’s probable cause contention on a finding that Rodriguez’s nervousness and the feeling of a soft object in his boot did not provide probable cause for a seizure of the object and its subsequent search. The case of Palmer v. State, 467 So. 2d 1063 (Fla. 3d DCA 1985) is distinguishable because there the defendant’s consent led to a viewing of the package which, the trial court found, created probable cause. Here, the trial court found that the scope of the consent was limited to a touching of the boot. Consequently, the removal of the package from the boot, which allowed the officers to view it, was unauthorized. Absent other sufficiently suspicious circumstances, the feeling of something soft does not establish probable cause for a seizure and search of the soft object.1 Accordingly, the suppression order is affirmed.
Affirmed.
. Drugs are often packaged in a characteristic fashion recognizable to police. Observation of such a package may provide probable cause for a search and seizure. There are an unlimited number of objects, however, which feel "soft and malleable.” That sensory perception (touch) is not sufficient, at least in this case, to create probable cause.
JORGENSON, Judge,
dissenting.
Rodriguez was stopped by members of the narcotics interdiction squad at the Miami International Airport. He agreed to speak with the officers and gave them permission to look into his tote bag advising them, “I don’t have anything in there though.” The uncontradicted testimony reveals that Rodriguez was sweating profusely, his stomach was palpitating, and his hands were shaking. Detective McGavock asked the defendant if he could feel his boots to see if he had anything in them. The defendant was further advised that he did not have to permit this limited search. The defendant consented to a “feel” of his boots. McGavock thereafter felt through the exterior of one of the boots and, predictably, encountered something other than a foot. McGavock testified that the package inside the boot felt soft and malleable and that such facts led him to believe (in light of his experience with searches of this kind) that the package contained cocaine. McGavock reached in the boot and removed the package which was approximately five or six inches long, of tubular shape, and wrapped with kraft paper. Upon opening the package (concededly without the defendant’s consent), the presence of contraband cocaine was revealed. The foregoing facts are indistinguishable from those in Palmer v. State, 467 So. 2d 1063 (Fla. 3d DCA 1985), and cases cited therein.
I would, accordingly, reverse the order granting the defendant’s motion to suppress and remand for trial.
PER CURIAM.
The panel adopts the dissenting opinion of Judge Jorgenson as the opinion and decision of the court.
Accordingly, the order of suppression is reversed, and this cause is remanded for further proceedings.
Reversed and remanded for further proceedings.
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Cross v. State, 560 So. 2d 228 (Fla. 1990)…. The detectives, therefore, had probable cause to arrest Cross and to seize the taped object. The revelation of cocaine through the further examination of the object was nothing more than a search incident to a valid arrest. See State v. Rodriguez, 477 So. 2d 1025 (Fla. 3d DCA 1985). Cross, 535 So. 2d at 286. We agree with this analysis. In reaching our conclusion, we are not reversing the finding of the trial judge on a disputed issue of fact. The judge’s suppression order makes it clear that he accepted t…
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Terrtric Doctor v. State, 573 So. 2d 157 (Fla. 4th DCA 1991)…ntrusion. In Florida, absent other circumstances, the feeling of a soft object has also been held to be insufficient to provide probable cause since “there are an unlimited number of objects ... which ‘feel soft and malleable.’ ” State v. Rodriguez, 477 So. 2d 1025, 1026 n. 1 (Fla. 3d DCA 1985). The issue is whether the deputy could reasonably conclude that the bulge contained contraband. In Dunn the officer felt a hard cylindrical object in the suspect’s right front shirt pocket that turned out to contain ma…
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State v. Cross, 535 So. 2d 282 (Fla. 3d DCA 1988)…. The detectives, therefore, had probable cause to arrest Cross and to seize the taped object. The revelation of cocaine through the further examination of the object was nothing more than a search incident to a valid arrest. See State v. Rodriguez, 477 So. 2d 1025 (Fla.3d DCA 1985). The suppression order is reversed, and the cause is remanded for further proceedings. SCHWARTZ, C.J., BARKDULL, NESBITT and DANIEL S. PEARSON, JJ., concur.…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. State, 438 So. 2d 774 (Fla. 1983)
- Griffin v. Texas, 465 U.S. 1051 (U.S. 1984)
- Kinnett Dairies, Inc. v. Dairymen, Inc., 465 U.S. 1051 (U.S. 1984)
- Palmer v. State, 467 So. 2d 1063 (Fla. 3d DCA 1985)
- State v. Celestino Gonzalez, 447 So. 2d 1015 (Fla. 3d DCA 1984)