CHARLENE M. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charlene Brown was convicted of cocaine possession after police discovered drugs in her clenched fist during a traffic stop. The court reversed her conviction, holding that the officer's order to open her hand and subsequent search of the contents exceeded the scope of her consent and lacked probable cause.
The search was unlawful. Brown's consent to search the car did not extend to a search of her person, and the officer lacked probable cause to search the contents of her hand. Once the paper was revealed, it was evident it was not a weapon, eliminating any justification for further search.
[1] A search of a person's hand is not justified by consent to search a vehicle.
[2] When police rely on consent for a warrantless search, their authority is limited to the scope of the consent reasonably conferred.
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Join FLexlaw to unlock all legal intelligence“When the police are relying upon consent to conduct a warrantless search, they have no more authority than that reasonably conferred by the terms of the consent”
Establishes the fundamental principle limiting police authority to the scope of given consent
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Join FLexlaw to unlock all legal intelligenceA police officer stopped Brown's vehicle for non-functioning brake lights. After Brown consented to a search of her car for weapons or contraband, she…
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PATTERSON, Acting Chief Judge.
Charlene Brown appeals from her judgment and sentence for possession of cocaine. She argues that the trial court erred in denying her motion to suppress evidence. Because the police conducted an illegal search and seizure, we reverse Brown’s conviction.
A police officer stopped Brown’s car to inform Brown that her brake lights were not functioning. Because Brown seemed nervous, the officer asked to search the car for weapons or contraband. Brown consented to the search, but before she got out of the car, she reached under the driver’s seat, picked up an object, and held it in a fist. The officer asked her to open her hand. Brown did not respond. The officer “demanded that she open up her fist.” Brown opened her hand, revealing a wadded-up piece of white paper. The officer opened the paper and discovered a small baggy containing cocaine powder. Brown argues that she only consented to a search of her car; she did not consent to a search of her person. She also argues that the officer lacked probable cause to search the contents of her hand.
We agree. Brown did not willingly expose the contents of her hand until the officer ordered her to do so.
Thus, the search cannot be justified on the basis of Brown’s consent. See State v. Wells, 539 So. 2d 464, 467 (Fla.1989) (stating that “[w]hen the police are relying upon consent to conduct a warrantless search, they have no more authority than that reasonably conferred by the terms of the consent”); Alvarez v. State, 515 So. 2d 286 (Fla. 4th DCA 1987) (holding that when consent is relied on as the justification for a search, the State must prove such con sent was freely and voluntarily given and not in mere acquiescence to police authority).
Further, the officer did not have probable cause to search Brown’s person. The officer stopped Brown for a traffic infraction, not because she was suspected of engaging in illegal activity. He did not see anything on Brown or in the car that would have given him probable cause to suspect that Brown was concealing contraband. Thus, the officer exceeded his authority in opening the paper. See Jimenez v. State, 643 So. 2d 70 (Fla. 2d DCA 1994) (holding that the defendant withdrew his consent to a search, and thereafter, the search of a cigarette pack was illegal absent probable cause to believe the defendant was concealing contraband).
The State argues that the police officer was justified in ordering Brown to open her hand to determine whether Brown was holding a small weapon. However, once Brown revealed the paper in her hand, it was evident that the object was not a weapon and the officer did not have probable cause to search further. Thus, the search was illegal and the evidence should have been suppressed. Accordingly, we reverse Brown’s judgment and sentence.
Reversed.
BLUE and GREEN, JJ., Concur.
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D.N. v. State, 805 So. 2d 63 (Fla. 3d DCA 2002)…is case) the passenger’s hands are closed, the officer can order that the hands be opened. The officer in this case was acting well within the latitude given him by Maryland v. Wilson in ordering the passenger to open his hands. See Brown v. State, 734 So. 2d 1174, 1175 (Fla. 2d DCA 1999) (officer could order driver to open her hand so as to determine that she was not holding a weapon); State v. Louis, 571 So. 2d 1358, 1359 (Fla. 4th DCA 1990) (officer could order passenger to take hands out of jacket); see a…
Authorities Cited
- State v. Wells, 539 So. 2d 464 (Fla. 1989)
- Alvarez v. State, 515 So. 2d 286 (Fla. 4th DCA 1987)
- Jimenez v. State, 643 So. 2d 70 (Fla. 2d DCA 1994)