US v. Blake, 87-6250-CR.

• Decision Date: 05 August 1988
• Docket Number: No. 87-6250-CR.,87-6250-CR.
• Citation: 718 F. Supp. 925
• Parties: UNITED STATES of America, v. Oswald G. BLAKE and Leonard Eason.
• Court: U.S. District Court — Southern District of Florida

718 F. Supp. 925

UNITED STATES of America, v. Oswald G. BLAKE and Leonard Eason.

No. 87-6250-CR.

United States District Court, S.D. Florida, Fort Lauderdale Division.

August 5, 1988.

William Shockley, Asst. U.S. Atty., Fort Lauderdale, Fla., for U.S.

Michael O'Kane, Fletcher Peacock, Office of Federal Public Defender, Fort Lauderdale, Fla., for defendants.

ORDER

ROETTGER, District Judge.

THIS CAUSE is before the Court on the Motions to Suppress Evidence filed on behalf of Defendants, LEONARD EASON and OSWALD BLAKE. A hearing having been held regarding the Motions to Suppress and this Court having considered the Motions, the memoranda in support thereof, and the arguments of counsel, finds as follows.

This Court issued Findings of Fact orally from the bench immediately following the arguments of counsel. Those Findings of Fact and the transcripts of said Findings are hereby made a part of this Order. In accordance with those Findings of Fact previously announced, the Court issues the following Conclusions of Law.

At the conclusion of the hearing held by this Court, the Court requested that counsel submit supplementary memoranda addressing three issues. The supplementary memoranda have been submitted and with respect to the issues addressed therein and the disposition of defendants' Motion to Suppress, the conclusions of the Court follow.

The first issue presented to this Court is whether seizure of defendants occurred in the instant case. The Court having found as a matter of fact that Officer Hendrick returned Defendants' tickets and Defendant Blake's driver's license immediately after inspecting them briefly, the Court concludes that Defendants Eason and Blake were free to leave the scene. As in the Rodriguez case,

the initial contact between the officers and defendants, where they simply asked if defendants would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest.

Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984). The Court finds that the initial contact between the Airport Narcotics Unit and defendants in the case at bar was consensual and did not constitute a seizure.

The second issue this Court addressed is whether such consent for a search was voluntarily given. A search conducted pursuant to valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The question of whether the consent was voluntary "is a question of fact to be determined from the totality of all the circumstances." Id. at 227, 93 S.Ct. at 2048. The government must prove consent by a preponderance of the evidence. Schneckloth at 222, 93 S.Ct. at 2045; United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980).

The government argues that the voluntary consent of defendants was established by the testimony of Detective Perry Hendrick. Detective Hendrick testified that no force or threats were utilized in obtaining the consent of defendants and that defendants were informed that they had a right to refuse to consent to the search.

This Court finds, therefore, that although there was no reasonable suspicion or probable cause to justify the stop of defendants in the case at bar, consent was initially voluntarily given by defendants. The officers, however, exceeded the limits of decency and thereby exceeded the limits of the consent. Certainly when the police are relying upon consent as the basis for a warrantless search, they have no more authority than they have been given by the consent.

This Court finds that although defendants, LEONARD EASON and OSWALD BLAKE, did consent to a brief, non-coercive encounter with the officers, defendants could not have possibly foreseen the course that the arresting officers would choose to pursue in their search of defendants. Defendants clearly did not consent to the intimate search of their persons that was conducted in the public area of the Fort Lauderdale Airport. As this Court recognized in the Findings of Fact, the request by the officers to search defendants' "person" was ambiguous at best and it is not clear whether Defendants understood exactly what was entailed by the phrase "body search."

Defendant Blake was searched before Defendant Eason. Defendant Blake testified that Detective Hendrick told him that he had the right to refuse a search and that he would like to search "luggage and person — a body search." Both Defendants agreed they gave permission to a search of the luggage.

The court finds that there was a consent given by Blake to search of the person and that the search occurred within seconds according to Detective Hendrick.

Deputy Hendrick indicated that Deputy Sergeant Cutliff asked Defendant Eason, with gestures toward the crotch area, "do you mind"? and that Eason agreed. Defendant Eason testified that Detective Cutliff made the search of his crotch but the Court did not find his testimony to be credible. He did say that Detective Cutliff mentioned seeing something on Defendant; Detective Cutliff did not...