Phillips v. State, 96-03215
| Decision Date | 09 January 1998 |
| Docket Number | No. 96-03215,96-03215 |
| Citation | 707 So.2d 774 |
| Parties | 23 Fla. L. Weekly D176 Willie PHILLIPS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Joanna B. Conner, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Appellee.
Willie Phillips appeals the order adjudicating him guilty of possession of cocaine and resisting an officer without violence, arguing that the trial court erred in denying his dispositive motion to suppress evidence. We agree and reverse.
Phillips' involvement with police officers began as a consensual encounter. There is no dispute that Officer Musante requested permission to search Phillips and his belongings and that Phillips responded, "You can search everything I got, go right ahead." While Officer Musante was searching Phillips' gym bag, Phillips jammed his hand into his pocket and refused to remove it. A scuffle ensued and the officers placed Phillips in handcuffs. Officer Musante then removed a cigarette pack from Phillips' pocket. A plastic baggie containing crack cocaine was found inside the pack. Officer Musante could not remember if he did a pat-down search of the pocket.
The only issue raised at the hearing on the motion to suppress was whether Phillips withdrew his consent to search by repeatedly placing his hand into his pocket. The trial court concluded:
The trial court's statement of the law was erroneous. It is well settled that in the context of a consensual encounter, a voluntary consent to search can be withdrawn. See Parker v. State, 693 So.2d 92 (Fla. 2d DCA 1997); Jimenez v. State, 643 So.2d 70 (Fla. 2d DCA 1994); State v. Hammonds, 557 So.2d 179 (Fla. 3d DCA 1990); Nease v. State, 484 So.2d 67 (Fla. 4th DCA 1986).
In Jimenez, this court concluded that while the defendant had originally consented to a search, he "withdrew his consent when he twice grabbed the deputy's hand in an apparent attempt to stop the search of the cigarette packs." 643 So.2d at 72. Therefore, where there was no probable cause, "it was improper for the officer to continue to search over the defendant's objections." Id.
Because of the trial court's error in applying the established case law to the facts of this case, this court must give the trial court the opportunity to address the issue of Phillips' withdrawal of his consent to search. In Holland v. Gross, 89 So.2d 255 (Fla.1956), the supreme court stated:
When the appellate court is convinced that ... the trial court has...
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Smith v. State
...743 So.2d 97 (Fla. 1st DCA 1999). Consent, once given in a consensual encounter, may be revoked by the citizen, see Phillips v. State, 707 So.2d 774 (Fla. 2d DCA 1998); and the limits of consent are defined by the extent of the consent given, see Jacobs v. State, 733 So.2d 552 (Fla. 2d DCA ......
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State v. Petion
...DCA 1994); State v. Hammonds, 557 So.2d 179 (Fla. 3d DCA 1990); Nease v. State, 484 So.2d 67 (Fla. 4th DCA 1986)." Phillips v. State, 707 So.2d 774, 775 (Fla. 2d DCA 1998). It is equally well settled that the consent can be withdrawn either verbally or nonverbally. See E.B., 866 So.2d at 20......
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EB v. State, 2D03-778.
...of E.B. and the patdown were consensual. However, consent in a police-citizen encounter may be revoked by the citizen. Phillips v. State, 707 So.2d 774 (Fla. 2d DCA 1998). The limits of the search are defined by the extent of the consent given. Jacobs v. State, 733 So.2d 552, 554 (Fla. 2d D......
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Lowery v. State
...is well settled that in the context of a consensual encounter, a voluntary consent to search can be withdrawn." Phillips v. State, 707 So.2d 774, 775 (Fla. 2d DCA 1998). In Towner v. State, 713 So.2d 1030 (Fla. 5th DCA 1998), the Fifth District upheld the trial court's denial of a motion to......