               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



TRUMAINE MOODY,                    )
                                   )
           Appellant,              )
                                   )
v.                                 )                  Case No. 2D16-5533
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed July 25, 2018.

Appeal from the Circuit Court for Hendry
County; James D. Sloan, Judge.

Howard L. Dimmig, II, Public Defender, and
Judith Ellis, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrew Tetreault,
Assistant Attorney General, Tampa, for
Appellee.

KHOUZAM, Judge.

             Following the denial of his dispositive motion to suppress and his entry of

a no contest plea, Trumaine Moody appeals his judgment and sentence for possession

of cocaine in case 16-CF-81. He also challenges the revocations of his probation and

sentences in cases 12-CF-516, 12-CF-518, and 12-CF-520. We affirm without

comment the revocations and resulting sentences in those three cases. However,
because the State failed to show by clear and convincing evidence that there was an

unequivocal break between the initial illegal stop and Mr. Moody's alleged consent to

search, we reverse and vacate Mr. Moody's conviction and sentence for possession of

cocaine in case 16-CF-81.

              An anonymous tipster flagged down a deputy of the Hendry County

Sheriff's Office to tell him that a black male wearing a red, yellow, and black jacket was

carrying a gun and standing outside a convenience store. The deputy called another

deputy, and they met in front of the convenience store, where they observed Mr. Moody,

a black male fitting the tipster's description. Upon noticing the patrol cars, Mr. Moody

stuck his hands in his pockets and walked hunched over into the store. The deputy

followed Mr. Moody into the store, where he stopped and patted him down in search of

a weapon. After not finding a weapon, the deputy explained to Mr. Moody why he had

stopped him. The deputy then asked Mr. Moody if he had anything in his pockets that

he "shouldn't have." When Mr. Moody said "no," the deputy asked if he could search

Mr. Moody’s pockets. Mr. Moody replied, "I ain't got nothing, yeah, go ahead." The

deputy searched Moody’s pockets and found cocaine. The deputy testified that "maybe

a minute" elapsed between the first stop and frisk and the subsequent search of the

pockets.

              Mr. Moody moved to suppress the cocaine. He argued that because the

initial stop was unlawful, he did not voluntarily consent but rather acquiesced to the

deputy's request to search his pockets. The trial court, however, denied Mr. Moody's

motion. The trial court found that even though the first stop and frisk was illegal as

there was "nothing . . . that would support any kind of search at that point," the trial court



                                             -2-
concluded that Mr. Moody's consent to search was voluntary and was not "fruit of the

poisonous tree."1 The trial court reasoned that Mr. Moody's consent to the second

search was voluntary because the deputy's conversation with Mr. Moody was sufficient

to dispel Mr. Moody's "initial fear [of] the officer." We disagree.

              In reviewing a trial court's ruling on a motion to suppress, "this court uses

a dual standard." Young v. State, 207 So. 3d 267, 269 (Fla. 2d DCA 2016). That is,

while we defer to the trial court's findings of fact that are supported by competent

substantial evidence, we review de novo the trial court's "application of the law to the

facts." Id. (citing Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA 2003)).

              The voluntariness of a defendant's consent is determined from the totality

of circumstances. Hardin v. State, 18 So. 3d 1246, 1248 (Fla. 2d DCA 2009) (citing

Kutzorik v. State, 891 So. 2d 645, 647 (Fla. 2d DCA 2005)). "[W]hen consent is

obtained after illegal police activity . . . the unlawful police action presumptively taints

and renders involuntary any consent to search." Ingraham v. State, 811 So. 2d 770,

774 (Fla. 2d DCA 2002) (alteration in original) (quoting Connor v. State, 803 So. 2d 598,

609 (Fla. 2001)). The State may rebut this presumption of involuntariness "only if there

is clear and convincing proof of an unequivocal break in the chain of illegality sufficient

to dissipate the taint of prior official illegal action."2 Norman v. State, 379 So. 2d 643,


              1TheState does not challenge the trial court's determination that the initial
stop of Mr. Moody was unlawful.
              2"Although  the State normally must prove voluntariness of consent only by
a preponderance of the evidence, '[w]here there is an illegal detention or other illegal
conduct on the part of the police, a consent will be found voluntary only if there is clear
and convincing evidence that the consent was not a product of the illegal police
action.' " Ballenger v. State, 16 So. 3d 1022, 1025 (Fla. 2d DCA 2009) (alteration in
original) (quoting Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992)).

                                              -3-
647 (Fla. 1980). "[T]he taint may be dissipated by advice to the defendant of his right to

refuse to consent so as to render the subsequent consent free and voluntary." State v.

Boyd, 615 So. 2d 786, 790 (Fla. 2d DCA 1993). To determine whether the evidence

was obtained by exploitation of the illegal stop or instead by means sufficiently

distinguishable so as to purge the evidence of the primary taint, we take into account

three factors: "(1) the time elapsed between the illegality and the acquisition of the

evidence; (2) the presence of intervening circumstances; and (3) the purpose and

flagrancy of the official misconduct." State v. H.D., 113 So. 3d 917, 918 (Fla. 2d DCA

2013) (quoting State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006)).

              This court previously ruled on a case involving the denial of a motion to

suppress with a nearly indistinguishable fact pattern. In Reed v. State, 577 So. 2d 1362

(Fla. 2d DCA 1991), police officers stopped two black men based on a radio dispatch

that two black males involved in drug activity were believed to be carrying firearms in

the area. Id. at 1363. The officers immediately advised the defendant that they were

going to conduct a pat down for weapons. Id. After not finding any weapons on the

defendant, one of the officers explained to the defendant why they were in the area. Id.

The officer then informed the defendant of his right to refuse consent and asked the

defendant if he could search his pockets. Id. The defendant responded that he would

not mind, and the officer searched and found illegal drugs in the defendant’s pocket. Id.

This court reversed the denial of the motion to suppress, holding that "there was no

unequivocal break between the illegal stop of the [defendant] and his consent to the

search." Id. Accordingly, even though the officer advised the defendant of his right to




                                            -4-
refuse consent, this court concluded that the defendant's consent was tainted by the

illegal stop. Id.

               Here, we conclude that the State did not show by clear and convincing

evidence that there was an unequivocal break between the initial illegal stop and Mr.

Moody's alleged consent to search. Like in Reed, the only intervening circumstances

between the illegality and the acquisition of the evidence was the deputy's explanation

as to why he had stopped Mr. Moody and the deputy's request to search Mr. Moody's

pockets. Such facts do not sufficiently purge the taint of the prior official illegal action.

See id. Nor does the brief amount of time—about one minute—remove that taint. And

while we recognize that the official misconduct does not appear to be flagrant or driven

by some unlawful purpose, the record is clear that the deputy did not attempt to

dissipate the taint of the initial illegal stop in any way. The deputy simply exploited the

initial unlawful stop and frisk by asking Mr. Moody if he had anything illegal on him and

whether he could search his pockets. Indeed, unlike the officer's conduct in Reed, the

deputy here failed to inform Mr. Moody that he was free to either refuse consent or

leave prior to the search of his pockets. As such, because the State failed to clearly

and convincingly show an unequivocal break in the chain of illegality sufficient to

dissipate the taint of the prior official illegal action, the trial court erred in denying Mr.

Moody's motion to suppress.

               Therefore, we reverse the trial court's denial of Mr. Moody's motion to

suppress and vacate his judgment and sentence in case 16-CF-81. We affirm in all

other respects.

               Affirmed in part, reversed in part, and vacated.



                                               -5-
MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                  -6-
