WILLIE PHILLIPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Phillips appeals his conviction for cocaine possession and resisting an officer, arguing the trial court erred in denying his motion to suppress evidence. The court agrees that the trial court misapplied the law by stating that consent to search cannot be withdrawn mid-search, and reverses for reconsideration.
Consent to search can be withdrawn during a consensual encounter. The trial court erred in stating there is no law permitting withdrawal of consent mid-search, and the case must be remanded for the trial court to properly apply the law to the facts concerning whether Phillips withdrew his consent.
[1] A voluntary consent to search given during a consensual encounter may be withdrawn.
[2] A trial court errs in denying a motion to suppress when it misapplies the law regarding the withdrawal of consent to search.
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Join FLexlaw to unlock all legal intelligence“It is well settled that in the context of a consensual encounter, a voluntary consent to search can be withdrawn.”
Establishes the controlling legal principle that the trial court misapplied
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Join FLexlaw to unlock all legal intelligenceDuring a consensual police encounter, Officer Musante requested permission to search Phillips and his belongings, which Phillips granted. While search…
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[*775] PARKER, Chief Judge.
Willie Phillips appeals the order adjudicating him guilty of possession of cocaine and resisting an officer without violence, arguing that the trial court erred in denying his dispositive motion to suppress evidence. We agree and reverse.
Phillips’ involvement with police officers began as a consensual encounter. There is no dispute that Officer Musante requested permission to search Phillips and his belongings and that Phillips responded, “You can search everything I got, go right ahead.” While Officer Musante was searching Phillips’ gym bag, Phillips jammed his hand into his pocket and refused to remove it. A scuffle ensued and the officers placed Phillips in handcuffs. Officer Musante then removed a cigarette pack from Phillips’ pocket. A plastic baggie containing crack cocaine was found inside the pack. Officer Musante could not remember if he did a pat-down search of the pocket.
The only issue raised at the hearing on the motion to suppress was whether Phillips withdrew his consent to search by repeatedly placing his hand into his pocket. The trial court concluded: “He [Phillips] gave his consent. So they were entitled to search him. And there is no law that I know of in the middle of the search that you can revoke your consent.”
The trial court’s statement of the law was erroneous. It is well settled that in the context of a consensual encounter, a voluntary consent to search can be withdrawn. See Parker v. State, 693 So. 2d 92 (Fla. 2d DCA 1997); Jimenez v. State, 643 So. 2d 70 (Fla. 2d DCA 1994); State v. Hammonds, 557 So. 2d 179 (Fla. 3d DCA 1990); Nease v. State, 484 So. 2d 67 (Fla. 4th DCA 1986).
In Jimenez, this court concluded that while the defendant had originally consented to a search, he “withdrew his consent when he twice grabbed the deputy’s hand in an apparent attempt to stop the search of the cigarette packs.” 643 So. 2d at 72. Therefore, where there was no probable cause, “it was improper for the officer to continue to search over the defendant’s objections.” Id.
Because of the trial court’s error in applying the established case law to the facts of this case, this court must give the trial court the opportunity to address the issue of Phillips’ withdrawal of his consent to search. In Holland v. Gross, 89 So. 2d 255 (Fla.1956), the supreme court stated:
When the appellate court is convinced that ... the trial court has misapplied the law to the established facts, then the decision is “clearly erroneous” and the appellate court will reverse because the trial court has “failed to give legal effect to the evidence” in its entirety.
Id. at 258; see also Dorton v. Jensen, 676 So 2d 437, 438 n. 1 (Fla. 2d DCA 1996) (holding that the trial court’s misapplication of ease law required reversal and remand for a' new trial); State v. Langer, 516 So. 2d 310 (Fla. 3d DCA 1987) (holding that the trial court’s misapplication of the law regarding automobile searches required appellate court to reverse the suppression order).
Because the order denying Phillips’ motion to suppress resulted from the trial court’s erroneous view of the law, we reverse and remand for a new hearing on the issue of whether Phillips withdrew his consent to search,
Reversed and remanded.
PATTERSON and NORTHCUTT, JJ., concur.
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E.B. v. State, 866 So. 2d 200 (Fla. 2d DCA 2004)…ony, there is substantial, competent evidence to support the trial court’s determination that the initial stop of E.B. and the patdown were consensual. However, consent in a police-citizen encounter may be revoked by the citizen. Phillips v. State, 707 So. 2d 774 (Fla. [*203] 2d DCA 1998). The limits of the search are defined by the extent of the consent given. Jacobs v. State, 733 So. 2d 552, 554 (Fla. 2d DCA 1999) (“The scope of consent to search is generally limited to what a reasonable person would have…
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Smith v. State, 753 So. 2d 713 (Fla. 2d DCA 2000)…(9th Cir.1979), and it is the government’s burden to prove the existence of effective consent, see Sims v. State, 743 So. 2d 97 (Fla. 1st DCA 1999). Consent, once given in a consensual encounter, may be revoked by the citizen, see Phillips v. State, 707 So. 2d 774 (Fla. 2d DCA 1998); and the limits of consent are defined by the extent of the consent given, see Jacobs v. State, 733 So. 2d 552 (Fla. 2d DCA 1999). When Mr. Smith failed to comply with the officer’s command to lift his tongue, a command with whic…1 / 2
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Wright v. State, 766 So. 2d 467 (Fla. 1st DCA 2000)…his consent by grabbing his shirt pocket before the officer felt its contents. Accordingly, we REVERSE and REMAND to the trial court to conduct a new hearing on the issue of whether Wright withdrew his consent to the search. See Phillips v. State, 707 So. 2d 774 (Fla. 2d DCA 1998). BOOTH and BENTON, JJ., and SHIVERS, DOUGLASS B., Senior Judge, CONCUR.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bernardo de la Pena v. SC Mota Assocs. Ltd. P'ship (Fla. 3d DCA 2024)
- Holland v. Gross, 89 So. 2d 255 (Fla. 1956)
- Jimenez v. State, 643 So. 2d 70 (Fla. 2d DCA 1994)
- Nease v. State, 484 So. 2d 67 (Fla. 4th DCA 1986)
- Patrice Parker v. State, 693 So. 2d 92 (Fla. 2d DCA 1997)
- State v. Hammonds, 557 So. 2d 179 (Fla. 3d DCA 1990)
- Dorton v. Jensen, 676 So. 2d 437 (Fla. 2d DCA 1996)
- State v. Langer, 516 So. 2d 310 (Fla. 3d DCA 1987)