TOMMIE LEE SANDERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommie Lee Sanders was convicted of drug possession after police found cocaine and paraphernalia during a search. The appellate court reversed his convictions because the officer exceeded the scope of Sanders' consent when he ordered Sanders to empty his pockets during what should have been limited to a pat-down search.
Consent to a pat-down search does not include consent to reach into a suspect's pockets and retrieve their contents absent additional circumstances justifying a more complete search. The officer exceeded the scope of Sanders' consent, and the evidence was unlawfully seized.
[1] Consent to a pat-down search does not, in the absence of additional justifying circumstances, include consent to reach into a suspect's pockets and retrieve their content…
[2] When a suspect empties their pockets in response to an officer's directive, it is legally equivalent to the officer searching the pockets.
Previewing 2 of 3 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“When a suspect empties his pockets in response to an officer's directive that he do so, the legal effect is the same as if the officer had himself searched the suspect's pockets.”
Establishes that directing a suspect to empty pockets constitutes a search equivalent to a pat-down or pocket search
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Join FLexlaw to unlock all legal intelligenceApproximately ten minutes after a store burglary, Officer Raggins spotted Sanders walking two blocks from the store in the early morning. When asked w…
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ALLEN, J.
Reserving the right to appeal the trial court’s denial of his motion to suppress cocaine and drug paraphernalia, the appellant pled nolo con tendere to charges of possession of the cocaine and paraphernalia. See Fla. R.App. P. 9.140(b)(2)(A). We reverse the appellant’s convictions because the evidence was seized in connection with a search which exceeded the scope of the appellant’s consent.
Considered in a light most favorable to the prosecution, the testimony presented at the suppression hearing revealed the following facts: Approximately ten minutes after a store had been burglarized in the very early morning hours, Officer Raggins spotted the appellant walking along a street about two blocks from the store. When the officer asked the appellant why he was out at that time of the morning, the appellant first stated that he was looking for his car keys, and when further pressed, stated that he always took a walk at that time of the morning. When the officer asked if the appellant would object to being patted down, the appellant responded that he had no objection. Officer Raggins then asked the appellant whether he had any needles or other sharp objects in his pockets that might prick the officer during the pat down. Although the appellant indicated that he had no such objects in his pockets, the officer instructed the appellant to take everything out of his pockets. The appellant complied, producing the cocaine and paraphernalia.
When a suspect empties his pockets in response to an officer’s directive that he do so, the legal effect is the same as if the officer had himself searched the suspect’s pockets. See K.L. v. State, 699 So. 2d 819 (Fla. 1st DCA 1997). The only justification offered by the appellee for the search of the appellant’s pockets in the present case is that the appellant’s consent to a pat down also provided consent for a more extensive search of his person. But “[a] consensual search by its very definition is circumscribed by the extent of the permission given, as determined by the totality of the circumstances.” See State v. Wells, 539 So. 2d 464 (Fla.1989), aff'd, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). And, in the absence of additional circumstances which would justify a more complete search, consent to a mere pat down does not include consent to reach into the pockets of a suspect and retrieve the contents. See Jordan v. State, 664 So. 2d 272 (Fla. 5th DCA 1995). The trial court therefore erred in denying the motion to suppress.
The appellant’s convictions are reversed and this case is remanded to the trial court with directions that the appellant be discharged.
JOANOS and KAHN, JJ., CONCUR.
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Citator
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Hines v. State, 737 So. 2d 1182 (Fla. 1st DCA 1999)…t the deputy overstepped lawful bounds by not performing a Terry-style protective frisk, ie., a limited exterior pat-down of Hines’ clothing solely to search for weapons, before determining that more intrusive action was necessary. Sanders v. State, 732 So. 2d 20, 24 Fla. L. Weekly D1065 (Fla. 1st DCA 1999) (absent additional circumstances that would permit a more complete search, consent to mere pat-down does not include consent to reach into suspect’s pockets and to retrieve contents); T.W.C. v. State, 666…
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E.B. v. State, 866 So. 2d 200 (Fla. 2d DCA 2004)…o. 2d at 715. Generally, “in the absence of additional circumstances which would justify a more complete search, consent to a mere pat-down does not include consent to reach into the pockets of a suspect and retrieve the contents.” Sanders v. State, 732 So. 2d 20, 21 (Fla. 1st DCA 1999) (citing Jordan v. State, 664 So. 2d 272 (Fla. 5th DCA 1995)). Thus, despite the consensual stop and patdown, E.B. retained the right to revoke his consent either by verbal or nonverbal conduct. Smith, 753 So. 2d at 715-16 (h…
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State v. Casey, 908 So. 2d 600 (Fla. 2d DCA 2005)…herefore justified in ordering her to empty her pockets. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (holding that probable cause for arrest justifies search of a person incident to the arrest); Sanders v. State, 732 So. 2d 20, 21 (Fla. 1st DCA 1999) (“When a suspect empties his pockets in response to an officer’s directive that he do so, the legal effect is the same as if the officer had himself searched the suspect’s pockets.”). Accordingly, we reverse the trial court’s…
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
- Florida v. Wells, 495 U.S. 1 (U.S. 1990)
- State v. Wells, 539 So. 2d 464 (Fla. 1989)
- Jordan v. State, 664 So. 2d 272 (Fla. 5th DCA 1995)
- K.L. v. State, 699 So. 2d 819 (Fla. 1st DCA 1997)