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

                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT

F.C.,
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D15-4252
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed November 18, 2016.

Appeal from the Circuit Court for Pinellas
County; Patrice W. Moore, Judge.

Howard L. Dimmig, II, Public Defender, and
Amanda V. Isaacs, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin-
Schomaker, Assistant Attorney General,
Tampa, for Appellee.


LaROSE, Judge.


              F.C. pleaded guilty to possession of cannabis. The trial court withheld

adjudication and placed F.C. on nine months of probation. F.C. now appeals. We have

jurisdiction. See Fla. R. App. P. 9.140(b)(2)(A)(i). Because the trial court erred in

denying F.C.'s dispositive motion to suppress evidence, we reverse.
                                    Factual Background

              Officers Biandudi and Wyle were patrolling a Pinellas County

neighborhood in a marked police car. They saw twelve-year-old F.C. and his friend,

Pedro, playing in the grassy common area of their mobile home park. Officer Biandudi

testified that the boys looked like they were just playing around and having fun. He saw

nothing alarming. Nevertheless, he pulled over and stopped the patrol car. He and

Officer Wyle exited the car. They were uniformed and armed. They approached the

boys and asked if they could search them. The boys consented. The officers found

small amounts of marijuana on each boy. The State charged each with possession of

cannabis. F.C. moved to suppress the evidence.

              At the suppression hearing, F.C. testified that he did not believe he was

free to leave the scene or that he could refuse a search. He testified that these same

officers had stopped him before and asked to search him. When he said no, they said

that he looked suspicious and searched him anyway.

              Pedro also testified at the hearing. Pedro recounted that these same

officers had stopped him and F.C. and searched them before. He and F.C. could

neither have walked away nor refused the search.

              Defense counsel argued that the search was involuntary because of F.C.'s

young age and his belief that he had no choice but to submit to the officers' authority.

The trial court expressed dismay with the officers' arbitrary detention and search of

children who were just playing. "[T]hey should have the right to play in what is basically

their front yard without the police coming up and asking them can they search them."

The trial court was "offended. . . . very offended." Nevertheless, the trial court felt

compelled to deny the motion:
                                             -2-
                      There is no case law in here that says that if a person
              feels like they have no choice, then they're coerced.
                      ....

              [T]he reason why he felt that he needed to do it was
              because the officers had on a uniform and he felt that if he
              would have said no that it was going to happen anyway.

                      But there's no case law that you've given me that said
              if a person says yes and they're saying yes because an
              officer has on a uniform that they have been coerced into
              doing that.

              Thereafter, F.C. entered a plea, reserving his right to appeal the denial of

his dispositive motion to suppress. On appeal, he argues that the trial court erred in

denying the motion because his consent to the search was not voluntary.

                                         Analysis

              Evidently, F.C.'s counsel provided no case law to support F.C.'s position

that a child's consent is involuntary if he believes he has no choice but to submit to the

officers' request to search. There are such cases. In A.H. v. State, 846 So. 2d 1215,

1217 (Fla. 5th DCA 2003), for example, the Fifth District held that a high-school

freshman did not voluntarily consent to the assistant principal's search of his wallet

where the student testified that he did not feel he could refuse the request to search.

Similarly, in E.J. v. State, 40 So. 3d 922, 924 (Fla. 4th DCA 2010), the Fourth District

held that a juvenile, who was a passenger in a vehicle stopped by police, did not

voluntarily consent to a search of her person, but merely acquiesced to the officers'

authority and what she thought was required.

              The State must show that consent was voluntary, "a burden which is met

by a preponderance of the evidence unless there is illegal conduct by the police." I.R.C.

v. State, 968 So. 2d 583, 587 (Fla. 2d DCA 2007). "[T]he 'vulnerable subjective state of


                                           -3-
the person who consents' is undoubtedly relevant to the determination of

voluntariness . . . ." Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973)).

The defendant must point to factors such as age, education, intelligence, or mental

condition that evidence such a vulnerable state, or to coercive circumstances or conduct

by the police "that provides an objective grounding for [his] professed inability to decline

the deputy's request to search." Id. Whether a child consents to a search is analogous

to whether a child waives Miranda1 rights. Like the question of consent to a search, the

State bears a heavy burden to demonstrate a waiver of Miranda rights, and "[t]his

burden is even heavier when the suspect is a juvenile." B.M.B. v. State, 927 So. 2d

219, 222 (Fla. 2d DCA 2006) (holding that fourteen-year-old questioned at her school by

a police detective did not voluntarily waive her Miranda rights, considering the totality of

circumstances including her age, experience, and background and that the detective did

not provide her the opportunity to consult with a parent before being questioned);

accord Ramirez v. State, 739 So. 2d 568, 575 (Fla. 1999); see also M.A.B. v. State, 957

So. 2d 1219, 1237 (Fla. 2d DCA 2007) (LaRose, J., dissenting).

              Here, in addition to F.C.'s young age, he and Pedro both testified that

these same officers searched him in a previous encounter, ignoring F.C.'s refusal to be

searched. The trial court considered these circumstances and concluded that F.C. and

Pedro were not "green" because they had been stopped and searched before. The

implication is that where juveniles have experience with law enforcement, they will know

their rights. However, the opposite applies here—their experience taught them that

saying no would not deter the police.


              1
                  Miranda v. Arizona, 384 U.S. 436 (1966).

                                            -4-
              The trial court's concluding words told the boys that they should say no

anyway:

               What you guys need to know from now on, the answer is
               not just no, but if you curse, put the hell in front of it and
               say no to them about that because it is offensive when
               you're just playing and it's obvious that you're just playing.

              Obviously, the trial court would have preferred to grant the motion to

suppress but did not believe it could.

              The trial court erred as a matter of law in concluding that no case law

allowed a ruling that F.C.'s consent to search was involuntary. The trial court also

abused its discretion in finding that F.C.'s prior experience with law enforcement

showed that he knew he could say no to a search and the officers would not search

him. Therefore, we reverse the trial court's order denying the motion to suppress.

              Reversed.


SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            -5-
