Consent to a search is involuntary if obtained after prolonged detention and repeated refusals where officers threaten to seek a warrant.
The defendant appeals a marijuana possession conviction, arguing the trial court erred in denying a motion to suppress evidence. The defendant was detained for an hour and a half after refusing three requests to search his truck, eventually consenting only after officers indicated they would seek a search warrant. The court examines whether this consent was voluntary under the totality of the circumstances. The state bears the burden of proving voluntary consent by clear and convincing evidence. Because the record fails to demonstrate that the defendant’s consent was free from coercion or the threat of a warrant, the court finds the evidence was obtained in violation of the Fourth Amendment and reverses the trial court's denial of the suppression motion.
At page 459 Voluntary consent to search after prolonged detention1 citing caseholding that the prolonged detention of the defendant rendered a defendant’s consent involuntary
- Caso v. State, 848 So. 2d 1228 (Fla. 2d DCA 2003).published(holding that the prolonged detention of the defendant rendered a defendant’s consent involuntary)
Other citing cases
- Monroe v. State, 578 So. 2d 847 (Fla. 2d DCA 1991).published
v.
STATE of Florida, Appellee.
Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
PER CURIAM.
Nelson appeals his conviction for possession of marijuana, contending that the trial court erred in failing to suppress the seized marijuana. We agree.
Appellant was stopped by Inspector Edmonds after he drove a pickup truck past an agricultural inspection station. The inspector, with permission, observed black plastic garbage bags in the back of the truck. Thereafter, Nelson denied three separate requests to search the bags. Finally, after a deputy explained to appellant that he could give consent even though appellant claimed the truck and bags did not belong to him, Nelson consented. However, consent came only when the deputy began placing a call to the state attorney's office in an attempt to obtain a search warrant. By this time, appellant had been detained an hour and a half. The testimony of the officials as to their efforts during this period in attempting to obtain appellant's consent to the search was conflicting and contradictory. Considering only the officials' testimony, there is testimony that appellant was told that if he did not consent, they would get a search warrant and also that he was told that if he did not consent, they would attempt to get a search warrant.
Considering the totality of the circumstances, it does not appear that Nelson consented merely because the deputy told him he could consent. See Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979). In a similar[*460] case, Seuss v. State, 370 So.2d 1203 (Fla. 1st DCA 1979), this court reversed an order denying suppression stating:
"Here, Seuss had been detained for more than an hour; he had refused repeated requests that he open the vehicle and allow the agents to inspect; he was informed that he could not leave until the vehicle was searched; and the supervisor represented that if Seuss continued to refuse, he could get authority to search anyway... . If the agents had probable cause with which to get a warrant, they should have done so rather than detain Seuss for over an hour while attempting to obtain his `consent.'"
The record in this case fails to show that the state met its burden to produce clear and convincing evidence showing appellant's voluntary consent to search the bags. Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979). The trial court's denial of appellant's suppression motion is REVERSED.
McCORD, Acting C.J., SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.