Lowery v. State
| Decision Date | 19 January 2005 |
| Docket Number | No. 2D03-3019.,2D03-3019. |
| Citation | 894 So.2d 1032 |
| Parties | Howard W. LOWERY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
Howard Lowery appeals from the denial of his motion to suppress evidence. We reverse because the State failed to demonstrate that Lowery consented to the seizure of a pill bottle from his pocket.
Detective Brant Gederian testified that he and Officer Angie Burn were driving in a marked police car on March 10, 2003, when they witnessed Lowery riding a bicycle with no headlight. They stopped Lowery for the headlight violation. Lowery provided his name and date of birth on request, and the officers ran a warrant check. When it was confirmed that there were no warrants outstanding, the officers gave Lowery a verbal warning for the headlight violation. Officer Gederian described what happened next:
I told him he was free to go and asked him if he had any weapons on his person or anything like that and he said no. I asked him if he would consent to search and I remember he did say yes, but he spun around and faced away from me and put his hands up in the air so I could pat him down.
Detective Gederian stated that "a couple seconds" elapsed between when he told Lowery he was free to go and when the detective asked if Lowery would consent to a search. The detective next described how he recovered from Lowery's pockets first a knife, which he later described as an "ordinary pocketknife," and then a pill bottle, which he later described as a "small little pill bottle" in which he found a white rock that appeared to be crack cocaine:
I patted down his left front pants pocket and I felt a knife and I started to reach in for it and he tried to reach in and grab it at the same time and I told him not to do that and I pulled a knife out of his pocket, a folding knife. And then I tried to pat down his right front pants pocket and I felt a bulge and he tried to grab for that again, so I stuck my hand in there and pulled out a pill bottle.
The detective clarified the interaction:
(Emphasis added). The detective testified that he relied on Lowery's consent throughout the entire search and that, during the search, Lowery never said or implied that he was withdrawing consent.
Lowery argues on appeal that his initial consent was involuntary and instead was an acquiescence to police authority. He also asserts that the seizure of the pill bottle exceeded the scope of the consent given, and that his actions during the search constituted nonverbal gestures indicating a wish to stop or limit the search. Finally, he contends that pursuant to the "plain feel" doctrine, the seizure of the pill bottle was improper.
We do not agree that the initial consent to search was involuntary. The record is undisputed that Lowery gave verbal consent to search after being told by the officer that he was free to leave. Thus, at that point, the officer was free to conduct a consensual search. See Watts v. State, 788 So.2d 1040 (Fla. 2d DCA 2001) (en banc) (); see also State v. Parrish, 731 So.2d 101 (Fla. 2d DCA 1999) ().
The State does not attempt to justify the search of Lowery's pockets on any theory other than a consensual search. Consent to search, once given, however, may be revoked by the citizen, and the limits of consent are defined by the extent of the consent given. Smith v. State, 753 So.2d 713 (Fla. 2d DCA 2000) (). Although the officer testified that Lowery never withdrew consent, the record is undisputed that Lowery twice attempted to reach into his pockets at the same time that the officer was attempting to search the pockets. Further, the officer's assertion that Lowery never withdrew his consent is belied by the officer's additional testimony that he told Lowery to "stop" when Lowery reached into his pocket as the officer was also reaching into the pocket. Thus, this search cannot be characterized as consensual for two reasons. First, before any item was confiscated by the officer, Lowery made a nonverbal gesture indicating that his verbal consent was being withdrawn; second, the officer used his authority to restrict Lowery's freedom of movement during the search. In a consensual search, an officer has no authority to command the person being searched to stop interfering with the search.
"A citizen encounter becomes an investigatory, or Terry, stop, once an officer shows authority in a manner that restrains the defendant's freedom of movement such that a reasonable person would feel compelled to comply." Parsons v. State, 825 So.2d 406, 408 (Fla. 2d DCA 2002) (citing Popple v. State, 626 So.2d 185, 186 (Fla.1993)); see also Koppelman v. State, 876 So.2d 618 (Fla. 4th DCA 2004). Based on the officer's description of Lowery's attempt to grab the bottle and because the officer was without authority to give Lowery a command to stop interfering with the search, the facts establish that Lowery withdrew his consent before the officer pulled the pill bottle from his pocket.
Consensual searches have been invalidated under similar circumstances where a defendant's nonverbal actions are inconsistent with the verbal consent given. See Smith; Jimenez v. State, 643 So.2d 70, 72 (Fla. 2d DCA 1994) (); Jackson v. State, 730 So.2d 364 (Fla. 4th DCA 1999) (). But see Towner v. State, 713 So.2d 1030 (Fla. 5th DCA 1998) (). The State asserts that Lowery is barred from arguing that he withdrew his consent because this was not specifically argued below. We reject this contention because the trial court improperly denied Lowery's counsel the opportunity to make any argument on the motion to suppress. Thus, we cannot say what Lowery's counsel would have argued and cannot determine whether the argument would have been waived. Accordingly, we reverse and remand for the trial court to grant the motion to suppress.
Reversed and remanded with directions.
Because the evidence supports the conclusion that Lowery did not withdraw his consent to the officer's search, I respectfully dissent.
The majority acknowledges that Lowery consented to the search, but it concludes that Lowery made a nonverbal gesture that conveyed his withdrawal of consent. Detective Gederian testified regarding the sequence of events before and during the search, including the nonverbal gesture that the majority asserts evidenced Lowery's withdrawal of consent.
Detective Gederian testified that he gave Lowery a verbal warning about the headlight violation. After he gave the warning, the following transpired:
The detective stated that after he took possession of the knife he continued the search, relying on Lowery's initial consent. He testified that Lowery "never withdrew his consent, ever."
Detective Gederian added that after he found the knife in one pocket and felt the bulge in the other pocket, he thought the second bulge may have been a weapon. He removed the item, which he discovered was a pill bottle. Detective Gederian testified as follows:
I shook the pill bottle and I could hear something rattling around inside. When I pulled the pill bottle out of his pocket, Mr. Lowery said that's not mine. So I shook it and I heard something and I opened it up and I saw a white rock in there.
Based on his experience, Detective Gederian believed the rock to be crack cocaine. He then reiterated that Lowery never withdrew his consent:
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