State v. Hall , 201 So. 3d 66 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed August 12, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-1449
Lower Tribunal No. 12-15466
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The State of Florida,
Appellant,
vs.
Freddie Hall,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Teresa M.
Pooler, Judge.
Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellant.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellee.
Before SUAREZ, C.J., and SALTER, and FERNANDEZ, JJ.
SUAREZ, C.J.
The State of Florida appeals from the trial court’s grant of a motion to
suppress evidence of a taser found in Freddie Hall’s car. We affirm.
In response to a BOLO stemming from a house burglary, the police found a
car and two persons matching the general description of the suspects and vehicle.
The car was parked in the semicircular driveway of a house about a mile from the
burglary, and Mr. Small, the older male and the owner of the house, was on his
porch talking with defendant Hall. Three police cars pulled up, one police vehicle
blocked the driveway, and several officers got out. All wore clothing identifying
them as police, and all were armed, though their guns were holstered. The officers
testified that neither person seemed nervous when they pulled up. As one officer
conversed with Mr. Small, other officers patted down Hall (the car’s owner), took
his car keys and asked to search the car. Hall agreed and was cooperative
throughout, although testimony indicates he was visibly upset that the police
frisked him and searched the car.
Two officers initially searched the car and found nothing. A third officer
searched the car again and found a small personal taser in the console
compartment, and a baggie of rock cocaine under the front seat. The police found
no evidence from the burglary. Hall was not charged with possession of the
cocaine because the State could not prove his knowledge of its existence. As a
result of the taser discovery, however, Hall was charged with possession of a
weapon by a convicted felon.
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The officers testified that they were merely responding to the BOLO, and
that they were looking for the three jewelry boxes that were reported stolen. All
parties agree that this was a legitimate investigatory stop. The testimony of the
officers and of the defense witness, Mr. Small, agree on most points. Mr. Small
testified that Hall and he acquiesced to the search because the police took their IDs
and the car keys, had blocked the driveway, and that there were about four police
cars and at least as many officers present. Mr. Small stated that the officers were
not rude or aggressive, but that he did not feel that he could leave the property, or
go into his house, or refuse to do what the officers asked because he did not want
to aggravate the police. The police did not get a signed consent from Hall to
search the vehicle.
The trial court heard testimony and argument from both parties at the
hearing on Hall’s motion to suppress the fruits of the search. The trial court noted
that she found enough reasonable suspicion to justify an investigatory stop. The
judge determined that, viewing the totality of the circumstances, a reasonable
person would not have felt able to leave the confrontation or to refuse the police
requests, and that Hall’s acquiescence to the search was not voluntary. The judge
granted the defendant’s motion to suppress the result of the search of his vehicle
based on involuntary consent and totality of the circumstances.
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We review the trial court's grant of a motion to suppress using a mixed
standard of review; the appellate court defers to the trial court's findings regarding
the facts and applies the de novo standard of review to the trial court’s legal
conclusions. Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005) (holding that, when
reviewing rulings on motions to suppress, “we ‘accord a presumption of
correctness ... to the trial court's determination of historical facts, but [we]
independently review mixed questions of law and fact that ultimately determine
constitutional issues' ”); State v. Delgado, 92 So. 3d 314, 316 (Fla. 3d DCA 2012);
Hidelgo v. State, 25 So. 3d 95 (Fla. 3d DCA 2009).
To validate a search without a warrant, the State must demonstrate that the
search falls within a constitutional exception, one of which is voluntary consent.
See Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000). When determining
whether a consent to search was freely and voluntarily given, a court must examine
the totality of the circumstances at the time the consent was obtained. See United
States v. Mendenhall, 446 U.S. 544 (1980); Popple v. State, 626 So. 2d 185 (Fla.
1993); Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992). If the search is not
preceded by police misconduct, the State must prove by a preponderance of the
evidence that the consent was voluntarily given. See e.g., Faulkner v. State, 834
So. 2d 400 (Fla. 2d DCA 2003); State v. Collins, 661 So. 2d 962, 965 (Fla. 5th
DCA 1995). A consensual encounter involves “minimal police contact.” Popple,
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626 So. 2d at 186. “During a consensual encounter a citizen may either voluntarily
comply with a police officer's requests or choose to ignore them.” Id. The citizen
is free to leave. On the other hand, a person is seized in the constitutional sense
when, based upon all the circumstances, a reasonable person would not feel free to
leave. See G.M. v. State, 19 So. 3d 973, 978 (Fla. 2009). As the court said in
Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004), no single factor is dispositive.
“Among the factors that the court should consider in its analysis are the place and
time of the encounter, the number of officers, and the words and actions of the
officers.” Id. at 587; see also Dillon-Watson v. State, 61 So. 3d 476, 478 (Fla. 4th
DCA 2011).
There is no dispute regarding the historical facts of this case. The relevant
inquiry here is how a reasonable person in Hall’s position would understand the
situation. The State has the burden to prove that the necessary consent was given,
and that it was freely and voluntarily provided, in light of the surrounding
circumstances. “A mere submission to the apparent authority of a law enforcement
officer does not render an action voluntary in the constitutional sense.” Smith v.
State, 997 So. 2d 449 (Fla. 4th DCA 2008); State v. Hall, 537 So. 2d 171, 172 (Fla.
1st DCA 1989) (same).
The State in its brief juxtaposes the rather benign facts present in this case
with cases that present examples of obvious police coercion through show of force.
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Despite the fact that, in this instance, the police were polite and did not draw their
weapons, there was nevertheless the appearance of police authority and the
circumstances were coercive in nature: the police arrived in three to four vehicles,
blocked the driveway, frisked both parties, took their ID and car keys, and
searched the vehicle three times before finding the small taser. Under these
circumstances, the trial court made a determination that did not clearly violate any
of the tests for voluntary/involuntary consent. The judge heard testimony from
three police officers and the firsthand witness, and was persuaded that a reasonable
person under the same conditions would not have felt free to deny the police
request to search the vehicle. Based upon the totality of the circumstances, we
cannot conclude that Hall would have felt free to leave during this encounter.
Affirmed.
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