State v. Petion

• Decision Date: 24 October 2008
• Docket Number: No. 2D07-1549.,2D07-1549.
• Citation: 992 So.2d 889
• Parties: STATE of Florida, Appellant, v. Jerry PETION, Appellee.
• Court: Florida District Court of Appeals

992 So.2d 889

STATE of Florida, Appellant, v. Jerry PETION, Appellee.

No. 2D07-1549.

District Court of Appeal of Florida, Second District.

October 24, 2008.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellant.

Rene A. Sotorrio of Law Offices of Rene A. Sotorrio, P.A., Coral Gables, for Appellee.

ALTENBERND, Judge.

The State appeals an order granting Jerry Petion's motion to suppress physical evidence seized as a result of a traffic stop. The evidence, primarily powder cocaine, was found in a secret compartment inside the car he was driving. The circuit court concluded that the car was legally stopped by a deputy and that Mr. Petion initially consented to a search of the vehicle. However, the circuit court further concluded that Mr. Petion withdrew his consent by nonverbal communication after the deputy located the secret compartment but before the deputy opened it. The circuit court also based its decision on the deputy's failure to use an available videorecorder to record the discussion in which Mr. Petion gave his consent for the search. Accepting the circuit court's findings of fact, we conclude the State established that Mr. Petion took no action that an objectively reasonable police officer would interpret as a withdrawal of his consent to search, including the consent to search the secret compartment. Further, the deputy was not required to record the roadside consent to fulfill the requirements of the Fourth Amendment. We therefore reverse the order on appeal and remand for further proceedings.

I. THE EVIDENCE AT THE SUPPRESSION HEARING AND THE RULING BY THE CIRCUIT COURT

On December 31, 2005, the Interstate Crime Enforcement Unit of the Sarasota County Sheriff's Office deployed a sergeant to watch the interstate for criminal activity. At 3:15 a.m., the sergeant observed Mr. Petion's car. As it passed his vehicle going northbound, the sergeant observed that Mr. Petion's windows were heavily tinted. Even though it was nighttime, the sergeant was positioned in a location where such improper tinting was observable. After the car passed, the sergeant also observed that the tag light was inoperable on the rear of the car.

The sergeant pulled his vehicle onto the interstate behind Mr. Petion's car. Even though the tag light was inoperable, he could read the license plate. The license plate was registered to a car that was the same make and model as the one Mr. Petion was driving, but the registration indicated that the car should be red and the car was in fact silver. The sergeant decided to conduct a traffic stop.

When the sergeant stopped the car, Mr. Petion was very cooperative. Mr. Petion was not the registered owner of the vehicle. He was wearing baggy clothing, which prompted the sergeant to ask him whether he had any weapons. Mr. Petion indicated that he had no weapons and offered to let the sergeant search him and the car if he wished. The sergeant did not conduct a patdown or search at that time.

Using a tint meter, the sergeant determined that the tinting registered a 5% transmittance ratio when any reading below 28% was a violation of the uniform traffic control law. See § 316.2953, Fla. Stat. (2005). Mr. Petion explained that he had been stopped for the same violation two days earlier in Miami and showed the sergeant the citation from Miami. When he retrieved the citation from the center console, a roll of money wrapped in a rubber band, later determined to total $940, fell out of the console. When asked about the money, Mr. Petion explained that it was spending money. The sergeant also determined that the car had been painted and that the license plate was proper.

Because Mr. Petion had already received a citation for the tinting, the sergeant decided to give him only a "general warning" for the tag light and the tinting. At approximately this point, a second deputy arrived at the scene of the stop. The sergeant testified that he gave Mr. Petion the written warning and told him he was free to go. Because Mr. Petion had previously offered to let the sergeant search him and the vehicle and because the two deputies thought the totality of the circumstances seemed unusual, the sergeant then asked if he could still search Mr. Petion and the vehicle. Mr. Petion was still very cooperative. According to the sergeant, Mr. Petion was asked "if he would allow a full search of the vehicle, including any containers and compartments within the vehicle," and he readily agreed.

Approximately two minutes into the search, the deputy found an "after-market compartment" in the right rear passenger area. The deputies asked Mr. Petion about the compartment, and he professed no knowledge of any compartment. The sergeant, who had more training concerning such compartments, then examined it and believed it was the type of hidden compartment used to transport contraband. Such compartments can be difficult to open. The sergeant examined the compartment with a fiber optic device and inside the compartment he could see electronic wires connected to a sophisticated opening mechanism. The sergeant asked Mr. Petion if he knew how to open it, and Mr. Petion said that he did not. The sergeant explained that he would need to use tools to force the compartment open. According to the sergeant, Mr. Petion remained quite calm throughout this process and simply shrugged his shoulders in a manner that the sergeant interpreted as "okay." If anything, Mr. Petion was unusually calm, actually lounging on the side of the interstate.

It took the two deputies approximately an hour to open the secret compartment. Inside they found a bundle consisting of wrapped layers of various materials to deodorize the interior content, which was more than 270 grams of powder cocaine. After finding the cocaine, the deputies read Mr. Petion his Miranda¹ rights. He then explained that the car was not his but belonged to a family member.

The deputies then applied for a search warrant because they had not fully opened the compartment. A second search revealed items that might be useful as evidence of drug trafficking or perhaps evidence supporting a charge of possession of paraphernalia, but no additional cocaine. Following the second search, the deputies arrested Mr. Petion for trafficking in cocaine and commenced forfeiture proceedings against both the car and the $940 in currency.

Mr. Petion filed a motion to suppress the evidence obtained in the two searches, arguing that the traffic stop was improper and that he had withdrawn consent to search after the deputies found the compartment, but before they opened it. He also argued that the destructive nature of the search, forcing open the secret compartment, was beyond the scope of his consent. During the evidentiary hearing, he elicited testimony that the sheriff's vehicles had VHS recording equipment. Although the recorder in the sergeant's car was apparently inoperable, the recorder in the deputy's car was functioning and could have been used to record Mr. Petion's consent to the initial search. The deputy's only explanation for why he did not use the recorders was: "Not my style."

Mr. Petion offered no testimony at the suppression hearing. After hearing the evidence presented by the State, the circuit judge gave his ruling from the bench. He then had the oral explanation transcribed for attachment to an order that granted the motion without any additional findings. In the ten-page transcript, the judge explained that he was initially concerned about the traffic stop, but that he was convinced from the sergeant's testimony that there was a proper basis to stop the car. As to the issue of consent, the circuit judge concluded that he believed the officers' testimony that they had obtained a sufficient consent. He explained:

From the testimony given today, uncontradicted by both officers, the consent here certainly does appear to be freely and voluntarily given. I can't ignore and probably never will the fact that Mr. Petion evidently was so relaxed that he was lying down on the pavement. Perhaps he was lying down on the pavement because it took an hour to tear his car apart. I'm not really sure. But the fact remains that he, I think, did say, well, yeah, go ahead. You know, I'm not supposed to speculate, but either he was doing that because he was totally completely innocent and had no clue that the stuff was in there in a secret compartment, or he felt that they're never going to find the secret compartment. I don't know.

The judge was concerned, however, that the consent did not include "tear[ing the vehicle] apart for an hour with tools." He concluded that Mr. Petion revoked consent when he refused to assist the officers in gaining access to this compartment. As he explained:

It's been testified to that the consent was rather general, as [the prosecutor] said, and it seems to include all of the car, the compartments, the containers. To me, logic would state when somebody says, yeah, check my car, it doesn't mean tear it apart for an hour with tools. In my opinion, any consent which was given here by Mr. Petion was revoked. He refused to assist the officers in gaining access to this compartment. He refused to do that. If in fact he was so easy-going, happy-go-lucky, he could have given them consent to open that, particularly since he didn't own the car. He refused to do that. A mere shrugging of the shoulders could be inferred by [the sergeant] that it was, yeah, well, what the heck, whatever, but I'm not going to infer that. He refused to help them. That, to me, constitutes a revocation of his otherwise carefree, voluntary submission or consent.

The judge continued:

But here's the biggest problem in this case, in my opinion. This was a warrantless search. The State's very heavy burden is to show that it's freely and voluntarily given. I find it rather inexcusable not to have used the one VHS camera that was in [the...