State v. Fuksman

• Decision Date: 14 May 1985
• Docket Number: No. 84-190,84-190
• Citation: 10 Fla. L. Weekly 1212,468 So.2d 1067
• Parties: 10 Fla. L. Weekly 1212 The STATE of Florida, Appellant, v. Jorge FUKSMAN a/k/a Jorge Isaac, Appellee.
• Court: Florida District Court of Appeals

Page 1067

468 So.2d 1067

10 Fla. L. Weekly 1212

The STATE of Florida, Appellant, v. Jorge FUKSMAN a/k/a Jorge Isaac, Appellee.

No. 84-190.

District Court of Appeal of Florida Third District.

May 14, 1985.

Jim Smith, Atty. Gen., and Randi Klayman Lazarus, Asst. Atty. Gen., for appellant.

Alvarez & Gamba and Arturo Alvarez, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

The state appeals the granting of Fuksman's motion to suppress. Finding that the trial court utilized the wrong standard in deciding the motion, we reverse and remand for further proceedings.

The facts, viewed in the light most favorable to Fuksman, are as follows. On July 14, 1983, after receiving information that airline tickets were being illegally removed from Euro Travel Agency in southwest Dade County, Detective LaVoie, Sergeant Varnell and an investigator from the Air Traffic Conference placed the agency under surveillance. After three hours of surveillance, Fuksman exited the agency carrying a briefcase and drove off in a Lincoln Continental. The officers followed him in two cars. After a short distance, Fuksman committed a traffic violation. When Fuksman arrived at an apartment complex in northwest Miami, Sergeant Varnell approached to ticket him for the infraction. Detective LaVoie then approached, identified himself as a police officer and, without stating a reason or telling the defendant he was free to leave, began questioning him. At some point Detective LaVoie asked if he could search the car, but he did not inform Fuksman of either the nature of the investigation or the object of the search. Fuksman responded affirmatively and manipulated the door lock mechanism, unlocking all the doors. Detective LaVoie opened the door, picked up the defendant's briefcase and began to open the combination lock. ¹ Fuksman asked "May I help," to which the detective responded "No, I've got it." The briefcase contained illegally obtained airline tickets. Fuksman was then placed under arrest.

The trial court granted Fuksman's motion to suppress the airline tickets. The court, placing the burden on the state of proving consent by clear and convincing evidence, found: (1) that consent was not freely and voluntarily given; and (2) that the defendant had not consented to a search of his briefcase. Our initial discussion concerns the standard of proof which the state must satisfy in showing both the voluntariness and scope of consent. We then discuss the particular findings which the trial judge made in this case.

The general rule in search and seizure law is that warrantless searches are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of the exceptions to that rule is that a warrantless search conducted with consent is permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A consent search is valid when the consent is freely and voluntarily given, id., 412 U.S. at 233, 93 S.Ct. at 2050, and when it is conducted within the scope of the consent. United States v. Rackley, 742 F.2d 1266, 1270-71 (11th Cir.1984). The trial court required the state to prove consent by clear and convincing evidence. While there is support in the Florida case law for that proposition, we find a Florida supreme court decision requires, on the facts of this case, application of a preponderance of the evidence standard.

The Florida supreme court recently articulated a preponderance standard for voluntariness of consent determinations. Denehy v. State, 400 So.2d 1216 (Fla.1980). The court did not cite or discuss prior cases which had established a clear and convincing evidence standard. See, e.g., Bailey v. State, 319 So.2d 22 (Fla.1975). In fact, the court cited a voluntariness of confession case, McDole v. State, 283 So.2d 553 (Fla.1973), as support for the preponderance standard. While the overwhelming number of Florida decisions, including post-Denehy cases, contain statements that voluntariness must be shown by clear and convincing evidence, Bailey; State v. Santamaria, 464 So.2d 197 (Fla. 3d DCA 1985); State v. Spencer, 432 So.2d 718 (Fla. 3d DCA 1983); Leonard v. State, 431 So.2d 614 (Fla. 4th DCA 1983), and while it is unusual for the court to so casually overrule prior case law, we will not, and cannot under Hoffman v. Jones, 280 So.2d 431, 433-34 (Fla.1973), assume that the supreme court's pronouncement was mistaken or unintended. ² , ³

Having decided the question of what standard is applicable, we turn our examination to the factual determinations made by the trial court in this case. The trial court found that the consent to search the car was not freely and voluntarily given. However, even viewing the evidence in the light most favorable to Fuksman, as we must in this case, McNamara v. State, 357 So.2d 410, 412 (Fla.1978), we find the trial court was clearly erroneous. While the officers did not tell Fuksman why they were questioning him, neither was there a show of force or other circumstances which demonstrate any coercion. Detective LaVoie asked if he could search the car, and Fuksman, an intelligent, middle-aged businessman, agreed and unlocked the door. Clearly, the greater weight of the evidence established a free and voluntary consent to search the automobile. Denehy; see also United States v. Almand, 565 F.2d 927 (5th Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 92, 58 L.Ed.2d 116 (1978) (unlocking of vehicle sufficient to support finding of consent).

Our next inquiry is whether the consent to search the car extended to the locked briefcase within the car. The state cites State v. Wargin, 418 So.2d 1261 (Fla. 4th DCA 1982) as authority for its contention that the consent encompassed the briefcase. In Wargin, the fourth district decided, in a conclusory fashion and without analysis, that the holding in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) applies to consent cases. We disagree. See Palmer v. State, 467 So.2d 1063 (Fla. 3d DCA 1985) (citing Wargin for general consent principles, but specifically refusing to endorse the broad conclusion that Ross applies to consent searches).

In Ross, the United States Supreme Court held that

[t]he scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause ... If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. (emphasis supplied)

456 U.S. at 823, 825, 102 S.Ct. at 2172, 2173. The foundation of the automobile exception is the existence of probable cause. Ross, 456 U.S. at 807-09, 102 S.Ct. at 2163-64; Caroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). It is the presence of probable cause and the practical considerations which emanate from its presence in the automobile search context which form the basis of the decision in Ross. The court emphasized, first, the necessity of the existence of probable cause and, second, the consequences of not allowing a search of containers. Those consequences include the greater intrusion of seizure or detention of the vehicle, containers and/or persons involved until a probable cause determination can be made by a magistrate. Ross, 456 U.S. at 806-08, 102 S.Ct. at 2163-64. The court specifically indicated that it was not deciding the scope of warrantless searches of automobiles done without probable cause. Id., at 809 n. 11, 102 S.Ct. at 2164 n. 11.

The considerations upon which the holding in Ross is grounded do not exist in the consent search context where there is no probable cause. If a person consents to the search of a vehicle containing luggage and a search of the vehicle alone reveals nothing, the problem of the possible greater intrusion by detention or seizure does not arise because the probable cause necessary to secure the warrant is nonexistent. Therefore, the officer has no dilemma because he has no choice; he must let the consenting party be on his way. It is because the citizen has not given the police probable cause to believe his vehicle contains contraband that he has the right to proceed without official interference. Absent probable cause, the police can engage in the greater intrusion of searching the luggage only under circumstances in which the scope of the consent to search is defined clearly enough to include the luggage.

In addition, applying the Ross holding to consent searches emasculates the traditional rule that the scope of a consent search is determined by the totality of the circumstances by making one circumstance, the general consent to search an area, preeminent. The application of Ross to automobile consent cases would establish a per se rule that consent to search the car includes consent to search all closed containers within the car, regardless of other circumstances which may be present; this, despite the fact that the consenting party would be unaware that his consent had such an extensive scope. The police may already obtain a person's consent without informing him he has the right to refuse. Schneckloth; Bailey. We will not further expand the consent exception by holding that a general and ill-defined consent to search a vehicle necessarily includes permission to search every package and container within the vehicle. ⁴ See State v. Cole, 31 Wash.App. 501, 643 P.2d 675 (Ct.App.1982); State v. Cuzick, 21 Wash.App. 501, 585 P.2d 485 (Ct.App.1978) (both of these pre-Ross cases held that the general consent to search a vehicle did not extend to luggage within the vehicle). Cf. People v. Thiret, Colo., 685 P.2d 193 (1984) (grant of permission to "look around the house" did not authorize a 45-minute search, including an inspection of piles of clothes and debris and an examination of drawers, boxes and...