State v. Watana (4th District Court of Appeals December 15th, 2010)

Around 3:00 a.m. on the morning in question, Fort Lauderdale Police stopped defendant for “careless driving:” the defendant's vehicle was traveling between 90 and 100 miles per hour over the 17th Street bridge, crossed all lanes of traffic, and did not pull over immediately, but proceeded a short distance and parked behind a closed business.  When the officer went up to the car, the driver was acting very suspicious. 

The officer did not cite defendant for careless driving as he had originally intended,^FN1 but asked defendant to step out of his vehicle.  The officer claimed he then asked for permission to search defendant's person, and that defendant complied, never resisting or withdrawing his consent. When asked whether he had reason to believe defendant had any weapons, the officer said, “I just had a heightened suspicion.” The officer put his hand inside of defendant's right front pocket and pulled out a small baggy containing cocaine residue. Defendant moved to suppress the cocaine, alleging in part that it was obtained during an unlawful detention and that he did not consent to the officer's request to search, but rather, acquiesced to his authority.

At the hearing the officer testified that, when he asked defendant to step out of his vehicle, and then for permission to search his person, that defendant complied with all of the officer's requests. He did not resist or withdraw his consent. Defendant testified, however, that the officer never asked for permission to search him, that “he just started searching” defendant. According to defendant, “[i]t was not really a consent. It was get out of your vehicle, come to the back, turn around.”

The Fourth District Court of Appeals found that these facts support the trial court's finding that defendant did not give his consent, as the trial court was free to reject the officer's testimony.  Moreover, the finding that any consent given was a submission to authority and not voluntary, is also supported by competent substantial evidence. Defendant testified that he was told by the uniformed officer, who had not yet written him a traffic ticket, to get out of his vehicle, come to the back, and to turn around. Then the officer “just started searching” defendant. The officer had asked for and retained defendant's license and registration. As defendant argues, “there is nothing in this record to indicate to [him] that a search of his person was [any]thing other than one more ordinary step in the ticket writing process.”  Therefore, for the foregoing reasons, "we affirm the trial court's order granting defendant's motion to suppress."

Notes: there are many ways to attack an alleged "consensual encounter" between a citizen and an officer.  This case is a good example of why a Defense attorney's good cross examination of a officer in the lower court's hearing is so important to establish a record for the appeal.