Lewis v. State

Decision Date23 April 2008
Docket NumberNo. 4D07-976.,4D07-976.
Citation979 So.2d 1197
PartiesTerry LEWIS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

In denying appellant's motion to suppress, the trial court expressed the view that once two officers testified to facts which would prove that the search of appellant was consensual, the burden shifted to the appellant to prove that he did not consent to the search. We reverse, because the trial court erred in shifting the burden instead of determining the issue based upon the totality of the circumstances, including weighing the credibility of the officers' testimony, which the court itself questioned.

The state charged Lewis with use or possession of drug paraphernalia in violation of section 893.147(1), Florida Statutes (2005), and possession of cocaine in violation of section 893.13(6)(a), Florida Statutes (2005). Lewis moved to suppress the evidence, claiming it was the product of an illegal search.

At the suppression hearing on Lewis's motion, the state elicited testimony from Detective Gillette of the Fort Pierce Police Department and Detective Oliver of the St. Lucie County Sheriff's Office. On the night of the arrest, the officers were patrolling in an unmarked vehicle as part of a street level narcotics crime operation. They spotted Lewis riding a bicycle with no headlight. Based on this violation, the officers pulled alongside Lewis and said, "Police Department, please stop the bike."

While Lewis was still on the bicycle, Gillette asked him, in a conversational tone, "if he had any guns, weapons, or drugs, or anything else that [Gillette] needed to know about while [Gillette] was talking to him." Lewis answered in the negative. Gillette testified that he followed up by asking, "Just for my safety and yours, while we're standing here talking like this, you mind if I do a quick pat down for any weapons or drugs." Lewis answered, "Yeah, okay."

Lewis straddled the bicycle and spread his arms. While running the palm of his hand over areas where weapons are commonly concealed, Gillette felt "a hard cylindrical object . . . over [Lewis's] left front pant pocket." Based on Gillette's knowledge and experience, he immediately thought "it could be a pipe used for smoking crack cocaine." Gillette asked Lewis "what the object was [that he] was feeling" and Lewis responded, "It's a stem." Gillette testified that "stem" is slang for "crack pipe, or a pipe used to smoke crack cocaine."

Gillette removed the object from Lewis's pocket and confirmed that the item was a crack pipe, as it had burn residue and a wire mesh filter. Gillette arrested and handcuffed Lewis. During a search incident to arrest, Deputy Ruggeri found several small bags of a powdered substance which turned out to be cocaine.

Through cross-examination, Lewis's counsel brought out the fact that the arrest affidavit written that night stated that "Detective Gillette advised the subject that he was going to pat him down for weapons. The defendant stated okay." (emphasis supplied). Gillette testified that he "did not say to Mr. Lewis `I'm going to pat you down'" but instead asked whether Lewis had anything on his person about which the officers should know.

Detective Oliver testified that "Detective Gillette asked Mr. Lewis if he has any drugs, weapons or knives on him." Oliver admitted that he did not word the question in the police report as it was actually posed. Oliver explained, "The reason why I used `advised' instead of `asked' is . . . advised to me is actually asking the Defendant a question . . . all my reports are written that way."

The defendant did not testify at the suppression hearing.

The court concluded that the initial stop for riding a bicycle with no headlight was valid. Because the parties agreed that the pat-down was not supported by reasonable suspicion or probable cause, its validity turned on whether Lewis freely and voluntarily consented. The court was clearly troubled by the inconsistent testimony from the detectives. The court said:

In this case, I—I tried to avoid the issue of whether or not he was "advised" or "asked," now to—for permission to perform the consent search. But, I will say that this is the fourth time on a Motion to Suppress I've had officers from the same agency testify completely, diametrically in opposition to what their report say[s], which so I'm trying not to rule on this case based upon that which I'm starting to get a little bit concerned about because it happens much too, much too frequen[tl]y for my sake. But in any event, if—if I—if I was dealing only with the—the testimony that he was advised to—that he was going to have a pat down search conducted . . . [t]hat would not have been a voluntary or consensual search in my view. However, both officers did—did get themselves on the same page, and say that in fact it was a—it was a request for permission to conduct a pat down search. That's—there's sworn testimony like comparison to—to a report that I have in the file. So, I—I have to accept that, but I am concerned about it.

The court expressed its wish that Lewis had testified to clarify what went on at the stop. It then stated its ruling:

In this case, other than the appearance of the officers, and notwithstanding a written report to the contrary, the officers' testimony was that they asked him if they could ser—if they could conduct a pat down search, and he agreed. I was presented with no evidence to the contrary, and so although I with much trepidation have made the following finding, and Order. I do so on the basis of Chapman versus State [780 So.2d 1036 (Fla. 4th DCA 2001)]. I find that there was no evidence that the officers' conduct at the time of the request to search was confrontational, coercive, oppressive, or dominating. I am denying the Motion to...

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8 cases
  • State v. Ojeda
    • United States
    • Florida District Court of Appeals
    • October 27, 2010
    ...the property, the State argues that the subsequent search was made pursuant to the defendant's valid consent. See Lewis v. State, 979 So. 2d 1197 (Fla. 4th DCA 2008) (holding that a warrantless search constitutes a prima facie showing that shifts to the state theburden of proving the search......
  • State v. K.C.
    • United States
    • Florida District Court of Appeals
    • December 7, 2016
    ...search constitutes a prima facie showing which shifts to the [S]tate the burden of showing the search's legality." Lewis v. State , 979 So.2d 1197, 1200 (Fla. 4th DCA 2008).Although in this case, the trial court itself made no explicit findings of fact, it agreed with the defense arguments,......
  • Ferguson v. State
    • United States
    • Florida District Court of Appeals
    • April 6, 2011
    ...enforcement conducted a warrantless search, the burden of sustaining the legality of the search shifts to the state. Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008). In this case the state sought to prove the authority of appellant's girlfriend to consent to the officer's entry int......
  • Morales v. State
    • United States
    • Florida District Court of Appeals
    • December 18, 2020
    ...a witness. The mere fact that the testimony appears ‘uncontradicted’ does not necessarily make it believable ...." Lewis v. State , 979 So. 2d 1197, 1200 (Fla. 4th DCA 2008). When sitting as the fact-finder in a postconviction evidentiary hearing, the trial judge is similarly free to disbel......
  • Request a trial to view additional results
1 books & journal articles
  • Search and seizure
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...and the police eventually get their stories straight, the court is not required to believe the corrected testimony. Lewis v. State, 979 So. 2d 1197 (Fla. 4th DCA 2008) When the police engage in an illegal stop, evidence gained from the stop need not be suppressed when the obtaining of the e......

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