FL2: Anders brief rejected; stop not over when consent occurred and state failed burden of proof of consent

Defendant stopped on a bicycle was issued a citation and the officer asked for consent to search without telling him the stop was effectively over. The state failed in its “heavy burden” of proof that the search was voluntary. Crist v. State, 98 So. 3d 81 (Fla. 2d DCA 2012):

Upon issuing the citation and without acknowledging to him that the stop was over, the officer asked if he could search Crist. Even if we could assume that Crist voluntarily agreed to the search at that point, the officer’s subsequent actions in waiting for a second patrol officer to arrive before conducting the search is the antithesis of a clear and convincing indication that a reasonable person would feel free to revoke consent and leave during that delayed waiting period. See Summerall v. State, 777 So. 2d 1060, 1061 (Fla. 2d DCA 2001) (“[A]fter the deputy issued appellant the traffic citation, he engaged appellant in further conversation in an attempt to delay him; requested to search appellant’s vehicle; and after this request was denied, told appellant that he still was going to have a canine walk around the vehicle. Under these circumstances, no reasonable person would have believed himself ‘free to leave.'”); cf. Sosa, 932 So. 2d at 584 (“No evidence was presented … indicating that any officer attempted to prolong the traffic stop. Nor was any evidence presented … that [the deputy] blocked her from leaving the scene, threatened her, held on to her license, or asked her to step out of her car.”).

Defense counsel first filed a no-merit Anders brief, and the court ordered rebriefing. Id. n. 1.