County Case No.: MM00-07538A-XX
Appeal No.: CC-54
STEVEN DARBY,
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 Karla Wright presiding. Appellant, Steven Darby, argues that the trial court erred by failing to grant his motion to suppress certain evidence. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is AFFIRMED.
I.
On July 30, 2000, at approximately 1:20 a.m., Deputy Tracy Smith of the Polk County Sheriff=s Department conducted a routine traffic stop of a car in which Mr. Darby was one of three passengers along with the driver. Deputy Smith stopped the car at Avenue G and 34th Street in Winter Haven because it was Aerratically driving back and forth on the road@and he believed the driver was intoxicated. After stopping the car, Deputy Smith noticed appellant in the back seat. Deputy Smith testified that the appellant was Afidgeting@ and appeared to be attempting to conceal something. (V1/R27) After observing the appellant, the deputy went to the car and Aasked him@ to the exit the vehicle. (V1/R34) The deputy acknowledged that he approached and ordered the appellant out of the car before making any contact with the driver because the appellant=s nervous movements made him fearful of his safety. (V1/R33) The deputy testified that he asked the appellant to exit the vehicle for officer safety, having observed the appellant fidgeting and what he believed to be an attempt to Aconceal something.@(V1/R34) The deputy testified that he Awasn=t aware if that was a weapon.@ Upon exiting the vehicle, Deputy Smith asked appellant why he was nervous and so jumpy, and inquired whether he had anything on his person. (V1/R28) When the appellant responded that he did not, the deputy asked for consent to a patdown search. The deputy Afelt@ that MR. Darby had consented to the search. (V1/29) .
The deputy testified that he did not see any bulge=s on his person before conducting the patdown. When the deputy conducted the patdown, he discovered a hard object that felt like a pipe. He asked the appellant what the object was and he confirmed that it was a pipe. The deputy then removed the pipe and conducted a field test, which was positive for marijuana.
The trial court denied Appellant=s motion to suppress. Appellant plead no contest and reserved his right to appeal the trial court=s dispositive ruling on his motion to suppress.
II.
Appellant argues that the trial court erred by denying his motion to suppress. 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. An appellate court will view the evidence and the inferences and deductions drawn therefrom by the trial court in a manner most favorable to sustaining the trial court=s ruling. Johnson v. State, 438 So.2d 774, 776 (Fla. 1983).
III.
In this case, the vehicle=s stop was justified since the officer observed erratic driving and believed the driver may have been intoxicated. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) . Moreover, it was proper for the officer to have instructed the appellant to exit the vehicle. See Maryland v. Wilson, 117 S.Ct. 882, 886, 519 U.S. 408, 413, 137 L.Ed.2d 41 (1997); Smith v. State, 735 So.2d 570 (Fla. 2d DCA 1999). AA person=s unusual body movements and demeanor during an encounter with an officer gives the officer reason to believe the person has a weapon.@ State v. Wilson, 566 So.2d 585, 587 (Fla. 2d DCA 1990). The real issue in this case then is whether or not the appellant consented to the patdown search. Consent to search is one of the well established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854, 858 (1973). For consent to be voluntary, it must not be the product of duress or coercion, actual or implied. Id. The determination of consent is a question of fact for the trial judge. Id. In this instance, the officer testified that after the appellant exited the vehicle, he asked him A[do] you mind if I pat you down?@ and the appellant said Ano, he did not mind.@ (T 29) When the officer patted him down, he felt an object in the right front pants pocket. The officer testified that it was a hard object consistent with a pipe. The officer testified that he asked the appellant what it was and the appellant stated that it was a pipe. At that point, based on his experience and the appellant=s statement, the officer seized the pipe from the pocket of the appellant. Having heard the evidence, the trial court found that the appellant voluntarily consented to the patdown search and that the officer located the pipe as a result of the pat-down. Upon review of the record this court finds that the trial court=s denial of the appellant=s motion to suppress is supported by competent substantial evidence .
Accordingly, the trial court=s order denying the motion to suppress is AFFIRMED.
ORDERED October 2001.
Charles B. Curry, Chief Judge