County Case No.: MM00-00739A-LD
Appeal No.: DD-36
CRYSTAL PATTERSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Stephen Selph presiding. Appellant Crystal Patterson argues that the trial court erred by failing to grant her motion to suppress. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is REVERSED.
I.
On May 6, 2000, Lakeland police officer Jeff Barrett stopped a Chevrolet vehicle for speeding. Appellant, Crystal Patterson, was the front passenger in the vehicle. The driver of the vehicle, Jeremiah Page, was found to have no valid license. He was removed from the car and handcuffed. The driver consented to a search of the vehicle. (R19) Officer Barrett then asked appellant to get out of the car. On direct examination, the appellant testified that once asked to exit the vehicle the officer asked permission to search her purse. (R32) Appellant testified that she gave him her ID and Ashowed him what was in [the] purse . . . .@(R32) Appellant further testified that she Atook the stuff out@ so that the officer could see what was inside but that he took the purse off her and placed it on the hood; and then eventually inside the vehicle. (R35-36) The appellant did not remember telling the officer that he could take it. (R34) The appellant testified that the officer never requested her permission to place the purse back in side of the vehicle. The court inquired A[w]hen you opened the purse up and showed it to Officer Barrett were you giving him permission to look in it?@ The appellant replied, Ayeah.@ (R34) The court then asked the appellant A[d]id you ever tell him you didn=t want him to do that or . . . question it?@ The appellant responded ANo, I didn=t.@ (R38) Officer Barret testified that A[s]he opened the purse...[and said] I=m not hiding anything and closed it back real quick.@ (R15) The officer testified that at that point, he said A[l]et=s just leave it in the car. We=ll run the dog around the car.@ (R15). The officer testified that he did take the purse from her and placed it back in the vehicle on the passenger=s side. (R15) The officer brought the dog to the vehicle and the dog sat at the driver=s door which is a sign to the officer that the dog has detected something. (R12) At that point, the officer let the dog inside the vehicle. (R13) Once inside the vehicle, the dog alerted to the passenger=s seat as well as the defendant=s purse. Upon a search of the purse, the officer found a marijuana cigarette, scales, roaches, and a roach clip. (R13) On March 30, 2001, a hearing was held on appellant=s motion to suppress. The trial court, in denying the appellant=s motion to suppress, found that the appellant Ashow[ed] the officer parts of [her purse] - - with her own consent . . .@ (R 49) The court also noted that while it is true that the officer took the purse from the appellant, Ahe set the purse in the vehicle where she had been, to see if the dog would alert to it, which is not a search at that point.@ (R47) The court reasoned that the driver Aconsented to search of his vehicle, and Officer Barrett chose to do it with a K-9 which I think he could have done it even without consent because it was during the course of time while the traffic ticket is being written and they=ve got this driver for driving without a valid driver=s license.@ (R50) Finally, the court stated Aonce the dog alerted on the purse, which I think was legitimate for the purse to be in the vehicle at that point-it is an interesting argument that the purse was seized and put in the vehicle. But since that=s where it had been to start with, I don=t consider that really a seizure. . . . Once the dog alerts on it, then that gave him probable cause to open up the purse and then actually search the interior of the purse. . .@ (R48) The appellant entered a plea of nolo contendere to the charges and specifically reserved her right to appeal its denial.
II.
A trial judge=s ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. See Escobar v. State, 699 So. 2d 984, 987 (Fla. 1999); c.f., Ramirez v. State, 739 So. 2d 568 (Fla. 1999). To succeed on appeal, Appellant must show that the ruling of the trial court is not supported by competent evidence. Id.
III.
Appellant argues that the trial court erred in denying the motion to suppress since the officer=s placement of the purse into the vehicle in order to have the dog sniff the entire car was an unconstitutional seizure. The appellant cites to McNeil v. State, 656 So.2d 1320 (Fla. 5th DCA 1995) in support of her argument. In McNeil, the defendant was a passenger in a vehicle stopped for a traffic infraction. The K-9 unit was called in. The officer required both the driver and the passenger to exit the vehicle during the sniff search. However, the officer required McNeil, over her objection, to leave her purse in the vehicle during the search. The Fifth District found that request was a seizure of McNeil and her property without reasonable suspicion. In so finding, the court also noted that Athe passenger did nothing to warrant her individual detention as there was no reason to write her a citation nor was there an independent reasonable suspicion that her purse contained contraband.@ Id at 1321. The state argues that the appellant=s reliance on McNeil is misplaced because in this case, the trial court specifically found that the appellant consented to the officer looking inside the purse. Thus, the state argues, the officer had the authority at that point to search but instead chose to have the purse placed inside the vehicle subject to a K-9 sniff. This court disagrees. Upon careful review of the record, this court finds that the only consent appellant gave was for a limited search, consisting of her opening and closing the purse and removing a few items. There is no evidence in this record that the appellant consented to the officer removing the purse from her possession. A limited consent does not justify a full consent to a search. State v. Wells, 539 So.2d 464, 467 (Fla. 1989)(stating that Awhen the police are relying upon consent to search, they have no more authority than that reasonably conferred by the terms of the consent.@) Therefore, the act of removing the purse from the appellant without her permission amounted to a seizure of the appellant=s property without consent or reasonable suspicion. McNeil.
Accordingly, it is ORDERED that the ruling of the county court is REVERSED.
ORDERED February 2002.
Charles B. Curry, Chief Judge