{"id":5573,"date":"2011-05-21T12:07:45","date_gmt":"2011-05-21T11:26:12","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-05-21T11:26:12","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5573","title":{"rendered":"FL4: Statement to defendant that she could not avoid encounter without consenting to search was hardly a true consent"},"content":{"rendered":"

Defendant was the subject of an anonymous tip that she was selling ecstacy from her car in a store parking lot. Two officers approached to talk to her and her husband, and told her that she wasn\u2019t going to get to leave until she submitted to a search. Thus, the search was not by consent. Dillon-Watson v. State<\/a>, 2011 Fla. App. LEXIS 7203 (Fla. App. 4th DCA May 18, 2011):<\/p>\n

In this case, the totality of the circumstances show that the \u201cconsent\u201d to search the vehicle was not voluntary, if there was consent at all. After receiving a specific tip, the officers located a vehicle matching the description in the tip in the parking lot of a mall. The officers were in their marked sheriff\u2019s vehicle. They got out of their vehicle and approached Dillon-Watson\u2019s vehicle. Both were in full uniform. Deputy Abrams asked both appellant and her passenger why they were there. When they explained to him that they were exchanging their child in a neutral place, the officer told them he was investigating the tip which described both them and their vehicle. He then asked for their identification. He said, \u201cI\u2019d like to see your ID\u2019s and I\u2019ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.\u201d<\/em> Once he ran the identifications, which did not reveal any outstanding warrants, he then approached them again and said, \u201cLet me just take a quick look at your vehicles, and then if you guys are good, you\u2019ll be on your way.\u201d The deputy said that they in some manner indicated that it was \u201cokay.\u201d In searching he found the drugs which formed the basis for the possession charge.<\/p>\n

Based upon the totality of the circumstances, we cannot conclude that Dillon-Watson would have felt free to leave during this encounter. From the beginning, she was informed by two uniformed officers that they were investigating a tip of drug activity in her vehicle. This was not some vague allegation but contained details describing her vehicle and both herself and her ex-husband. They were focused on Dillon-Watson as a suspect in a criminal investigation. The officer asked for their identifications, but told them if they checked out and he could look in their vehicle, they would be \u201cgood to go.\u201d In other words, until he was allowed to search the vehicle, they would not be \u201cgood to go.\u201d Any reasonable person would consider that the officer would not let her go until the officer had searched the vehicle. Dillon-Watson was seized. The consent, such as it was, was not voluntary but an acquiescence to a show of authority. (emphasis in original)<\/p><\/blockquote>\n

This case is so compelling on the facts, I just can\u2019t believe (1) the trial judge found this consent, and (2) that the state just did not concede error on appeal. The fact the trial judge found consent makes this worth posting at length.<\/p>\n","protected":false},"excerpt":{"rendered":"

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