Generally, police must have a warrant to conduct a search, unless the search falls under a constitutional exception to the warrant requirement. One such exception is voluntary consent. In the recent case of Thompson v. State, the issue was whether consent to search had been given, but often the issue is whether consent was given voluntarily. The Third District recently considered whether a trial judge erred in finding that consent had not been voluntarily given, even though the police had not been rude or aggressive, in the case of State v. Hall.

The police in Hall were on a “be on the lookout” alert (“BOLO”) for two burglary suspects and a vehicle when they discovered a car parked in a driveway about a mile from the burglary and two men meeting the description of the suspects. Three police cars pulled up, with one blocking the driveway. Several officers, wearing clothing that identified them as police officers, got out of the vehicles. They all had holstered guns.

The officers testified that the men did not seem nervous when they arrived. One of the men was the homeowner, and the other man owned the vehicle in the driveway. While one of the officers talked to the homeowner, some of the others patted down the vehicle owner, took his keys, and asked to search his car. The man agreed to the search but was upset.

Although two officers found nothing when they searched the car, a third officer found a taser and a small bag of rock cocaine. The vehicle owner was charged with possession of a weapon by a convicted felon.

The police officers testified that they stopped because of the BOLO and they had been searching for some jewelry boxes taken during the burglary. The defendant agreed that the stop was legitimate but argued that his consent to search his vehicle had not been voluntarily given.

The homeowner testified on behalf of the defendant. He stated that they had submitted to the search because there were three or four police cars, one of them blocking the driveway, and several police officers present. The officers had taken the men’s identification cards and keys. Although the homeowner testified that the officers had not been rude or aggressive, he stated he did not feel that he was free to leave or go inside his home, or refuse to do what they asked.

The trial court found that the stop had been justified but that the consent to the search was not voluntarily given. In considering the totality of the circumstances, the trial court found that a reasonable person would not have believed he or she was free to leave or refuse the police request. The court granted a motion to suppress the evidence found in the search of the car, and the State appealed.

To determine if consent is voluntary, the court must consider the totality of the circumstances. An encounter is not consensual if a reasonable person in those circumstances would not feel free to leave. The burden is on the State to prove that consent was freely and voluntarily given.

Here, although the police did not verbally or physically threaten the men or otherwise act aggressively, the circumstances were coercive. There were several police cars. One of the cars blocked the driveway. The officers patted down both men and took their IDs and keys. They did not find anything in the car until they searched it a third time. The appeals court determined that, under the totality of the circumstances, it could not find that the defendant would have felt free to leave or refuse the request. The appeals court affirmed the trial court’s order granting the motion to suppress the evidence.

The courts protect defendants by excluding evidence obtained through unconstitutional searches. As this case shows, a search can be improper even when the person agreed to it, if that person reasonably believed that he or she was not free to leave or free to refuse. If you are facing criminal charges, the Florida criminal defense attorneys at Anidjar & Levine can fight for your rights. Schedule an appointment by calling 800-747-3733.

Related Blog Posts:

When Florida Police and Defendant Disagree on Consent to Search – Thompson v. State
When Is It Legal For Police To Stop You On The Street? – Mackey v. State