Cooper v. State, 94-1349

• Decision Date: 25 April 1995
• Docket Number: No. 94-1349,94-1349
• Citation: 654 So.2d 229
• Parties: 20 Fla. L. Weekly D1030 Ron Christopher COOPER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 229

654 So.2d 229

20 Fla. L. Weekly D1030

Ron Christopher COOPER, Appellant, v. STATE of Florida, Appellee.

No. 94-1349.

District Court of Appeal of Florida First District.

April 25, 1995.

Nancy A. Daniels, Public Defender; David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Douglas Gurnic, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Ron Christopher Cooper challenges an order withholding adjudication and imposing probation for possession of cocaine, following his plea of nolo contendere. Mr. Cooper expressly reserved the right to appeal the trial court's denial of his motion to suppress cocaine seized by police. He contends that seizure of the cocaine was the result of an illegally prolonged detention and a coercive search. Because the prosecution's efforts to show otherwise did not meet constitutional standards, we reverse the trial court's denial of appellant's motion to suppress.

Viewing the facts in the light most favorable to the State, Young v. State, 579 So.2d 721 (Fla.1991), Tommy Gore, a Quincy policeman, stopped Mr. Cooper at approximately midnight on August 4, 1993, on suspicion of driving under the influence of alcohol. Officer Gore seized a handgun he spotted lying in appellant's car and put it in the trunk of the patrol car. Ordered to get out of his car and into the back seat of the patrol car, appellant complied. After another policeman, Sergeant Sheldon, had arrived in a second patrol car, a check on the handgun revealed it was registered to appellant.

Officer Gore testified at the suppression hearing that, after determining Mr. Cooper was not intoxicated, he told him he was free to go; and that he returned his driver's license, but not his gun, which he placed on the hood of one of the patrol cars. Officer Gore also testified, however, that he then asked appellant if he would permit a search of his vehicle; and that, when appellant replied "No," Officer Gore informed him that a "K-9 unit" could be summoned, and that dogs could be brought to sniff for the presence of drugs.

Mr. Cooper thereupon walked to his car and, despite his earlier refusal to allow a search of its contents, began removing items from the back seat, placing them in a bag on the ground. Sergeant Sheldon saw appellant place a matchbox in the bag. Asked about the matchbox, appellant denied its existence. Allegedly with appellant's consent, Sergeant Sheldon then retrieved the matchbox from inside a shoe in the bag and handed it to officer Gore who opened it, discovering crack cocaine.

On these facts, we find an unlawful search. Notwithstanding the lawfulness of the initial stop and investigatory seizure of appellant's gun, appellant was illegally detained at the time of the search. See Rouse v. State, 643 So.2d 696, 697-98 (Fla. 1st DCA 1994); Joseph v. State, 588 So.2d 1014 (Fla. 2d DCA 1991). At no time was the encounter consensual in nature. Once the officers determined that Mr. Cooper was not intoxicated and that appellant's possession of the firearm was not illegal, there was no longer any lawful reason not to let him go. See Reynolds v. State, 592 So.2d 1082 (Fla.1992); Cresswell v. State, 564 So.2d 480, 481 (Fla.1990); Blackmon v. State, 570 So.2d 1074, 1075 (Fla. 1st DCA 1990).

At the suppression hearing, the State argued, "The defendant ... had the choice to leave and leave his property behind, or even ask the officers to return the gun." The trial court committed clear error in accepting this argument. The request to search the vehicle, after any reasonable suspicion of wrongdoing had been dispelled, coupled with the threat to prevent appellant's departure until dogs could be brought to the scene, amounted to an illegal detention. See Satterfield v. State, 609 So.2d 157 (Fla. 2d DCA 1992); Castillo v. State, 536 So.2d 1134, 1136-37 (Fla. 2d DCA 1988). In the circumstances, no reasonable person would have believed himself "free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988).

Appellant's acquiescence in the search of his personal effects was the fruit of illegal police conduct. See Rouse, 643 So.2d at 698. It was incumbent upon the State to show by clear and convincing evidence that any consent to search the bag, the shoe, or the matchbox was voluntary and not the product of appellant's illegally prolonged detention.

A consent to search obtained after illegal police activity ... is presumptively tainted and rendered involuntary and "will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior illegal police action." Norman v. State, 379 So.2d 643, 647 (Fla.1980)....

Furthermore, where there has been illegal police activity, the state must prove by clear and convincing evidence that an individual's consent was freely and voluntarily given and was not merely a submission or acquiescence to official authority. Reynolds v. State, 592 So.2d 1082 (Fla.1992).

Salem v. State, 645 So.2d 1023, 1026 (Fla. 2d DCA 1994). Here, as in Salem, there was sufficient proof of "no such unequivocal break between the stop and the consent. Satterfield v. State, 609 So.2d 157 (Fla. 2d DCA 1992); Reed v. State, 577 So.2d 1362 (Fla. 2d DCA 1991)." Salem, id. The present case is clearly distinguishable from Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), where the Court found that bus passengers occupied their seats, not as a result of official threats or because police had failed to return their personal property, but because the bus was scheduled to depart.

The denial of the motion to suppress is reversed and the case is remanded with directions to discharge appellant.

MICKLE and BENTON, JJ., concur.

WEBSTER, J., dissents with opinion.

WEBSTER, Judge, dissenting.

The only evidence presented to the trial court on the motion to suppress was the testimony of Officer Gore and Sergeant Sheldon. Notwithstanding the majority's contrary implication, there was no dispute about the fact that appellant consented to the search of the shoe and the matchbox. The only dispute was with regard to whether that consent had been voluntary. The majority concludes that the consent was not voluntary because "appellant...