       Third District Court of Appeal
                                State of Florida

                           Opinion filed August 12, 2015.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                No. 3D13-1449
                          Lower Tribunal No. 12-15466
                              ________________


                             The State of Florida,
                                     Appellant,

                                         vs.

                                  Freddie Hall,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Teresa M.
Pooler, Judge.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellant.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellee.


Before SUAREZ, C.J., and SALTER, and FERNANDEZ, JJ.

      SUAREZ, C.J.

      The State of Florida appeals from the trial court’s grant of a motion to

suppress evidence of a taser found in Freddie Hall’s car. We affirm.
      In response to a BOLO stemming from a house burglary, the police found a

car and two persons matching the general description of the suspects and vehicle.

The car was parked in the semicircular driveway of a house about a mile from the

burglary, and Mr. Small, the older male and the owner of the house, was on his

porch talking with defendant Hall. Three police cars pulled up, one police vehicle

blocked the driveway, and several officers got out. All wore clothing identifying

them as police, and all were armed, though their guns were holstered. The officers

testified that neither person seemed nervous when they pulled up. As one officer

conversed with Mr. Small, other officers patted down Hall (the car’s owner), took

his car keys and asked to search the car.      Hall agreed and was cooperative

throughout, although testimony indicates he was visibly upset that the police

frisked him and searched the car.

      Two officers initially searched the car and found nothing. A third officer

searched the car again and found a small personal taser in the console

compartment, and a baggie of rock cocaine under the front seat. The police found

no evidence from the burglary. Hall was not charged with possession of the

cocaine because the State could not prove his knowledge of its existence. As a

result of the taser discovery, however, Hall was charged with possession of a

weapon by a convicted felon.



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      The officers testified that they were merely responding to the BOLO, and

that they were looking for the three jewelry boxes that were reported stolen. All

parties agree that this was a legitimate investigatory stop. The testimony of the

officers and of the defense witness, Mr. Small, agree on most points. Mr. Small

testified that Hall and he acquiesced to the search because the police took their IDs

and the car keys, had blocked the driveway, and that there were about four police

cars and at least as many officers present. Mr. Small stated that the officers were

not rude or aggressive, but that he did not feel that he could leave the property, or

go into his house, or refuse to do what the officers asked because he did not want

to aggravate the police. The police did not get a signed consent from Hall to

search the vehicle.

      The trial court heard testimony and argument from both parties at the

hearing on Hall’s motion to suppress the fruits of the search. The trial court noted

that she found enough reasonable suspicion to justify an investigatory stop. The

judge determined that, viewing the totality of the circumstances, a reasonable

person would not have felt able to leave the confrontation or to refuse the police

requests, and that Hall’s acquiescence to the search was not voluntary. The judge

granted the defendant’s motion to suppress the result of the search of his vehicle

based on involuntary consent and totality of the circumstances.




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      We review the trial court's grant of a motion to suppress using a mixed

standard of review; the appellate court defers to the trial court's findings regarding

the facts and applies the de novo standard of review to the trial court’s legal

conclusions. Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005) (holding that, when

reviewing rulings on motions to suppress, “we ‘accord a presumption of

correctness ... to the trial court's determination of historical facts, but [we]

independently review mixed questions of law and fact that ultimately determine

constitutional issues' ”); State v. Delgado, 92 So. 3d 314, 316 (Fla. 3d DCA 2012);

Hidelgo v. State, 25 So. 3d 95 (Fla. 3d DCA 2009).

      To validate a search without a warrant, the State must demonstrate that the

search falls within a constitutional exception, one of which is voluntary consent.

See Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000). When determining

whether a consent to search was freely and voluntarily given, a court must examine

the totality of the circumstances at the time the consent was obtained. See United

States v. Mendenhall, 446 U.S. 544 (1980); Popple v. State, 626 So. 2d 185 (Fla.

1993); Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992). If the search is not

preceded by police misconduct, the State must prove by a preponderance of the

evidence that the consent was voluntarily given. See e.g., Faulkner v. State, 834

So. 2d 400 (Fla. 2d DCA 2003); State v. Collins, 661 So. 2d 962, 965 (Fla. 5th

DCA 1995). A consensual encounter involves “minimal police contact.” Popple,


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626 So. 2d at 186. “During a consensual encounter a citizen may either voluntarily

comply with a police officer's requests or choose to ignore them.” Id. The citizen

is free to leave. On the other hand, a person is seized in the constitutional sense

when, based upon all the circumstances, a reasonable person would not feel free to

leave. See G.M. v. State, 19 So. 3d 973, 978 (Fla. 2009). As the court said in

Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004), no single factor is dispositive.

“Among the factors that the court should consider in its analysis are the place and

time of the encounter, the number of officers, and the words and actions of the

officers.” Id. at 587; see also Dillon-Watson v. State, 61 So. 3d 476, 478 (Fla. 4th

DCA 2011).

      There is no dispute regarding the historical facts of this case. The relevant

inquiry here is how a reasonable person in Hall’s position would understand the

situation. The State has the burden to prove that the necessary consent was given,

and that it was freely and voluntarily provided, in light of the surrounding

circumstances. “A mere submission to the apparent authority of a law enforcement

officer does not render an action voluntary in the constitutional sense.” Smith v.

State, 997 So. 2d 449 (Fla. 4th DCA 2008); State v. Hall, 537 So. 2d 171, 172 (Fla.

1st DCA 1989) (same).

      The State in its brief juxtaposes the rather benign facts present in this case

with cases that present examples of obvious police coercion through show of force.


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Despite the fact that, in this instance, the police were polite and did not draw their

weapons, there was nevertheless the appearance of police authority and the

circumstances were coercive in nature: the police arrived in three to four vehicles,

blocked the driveway, frisked both parties, took their ID and car keys, and

searched the vehicle three times before finding the small taser.        Under these

circumstances, the trial court made a determination that did not clearly violate any

of the tests for voluntary/involuntary consent. The judge heard testimony from

three police officers and the firsthand witness, and was persuaded that a reasonable

person under the same conditions would not have felt free to deny the police

request to search the vehicle. Based upon the totality of the circumstances, we

cannot conclude that Hall would have felt free to leave during this encounter.

      Affirmed.




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