FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hendry County; James D. Sloan,
L. Dimmig, II, Public Defender, and Judith Ellis, Assistant
Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Andrew
Tetreault, Assistant Attorney General, Tampa, for Appellee.
the denial of his dispositive motion to suppress and his
entry of a no contest plea, Trumaine Moody appeals his
judgment and sentence for possession of cocaine in case
16-CF-81. He also challenges the revocations of his probation
and sentences in cases 12-CF-516, 12-CF-518, and 12-CF-520.
We affirm without comment the revocations and resulting
sentences in those three cases. However, because the State
failed to show by clear and convincing evidence that there
was an unequivocal break between the initial illegal stop and
Mr. Moody's alleged consent to search, we reverse and
vacate Mr. Moody's conviction and sentence for possession
of cocaine in case 16-CF-81.
anonymous tipster flagged down a deputy of the Hendry County
Sheriff's Office to tell him that a black male wearing a
red, yellow, and black jacket was carrying a gun and standing
outside a convenience store. The deputy called another
deputy, and they met in front of the convenience store, where
they observed Mr. Moody, a black male fitting the
tipster's description. Upon noticing the patrol cars, Mr.
Moody stuck his hands in his pockets and walked hunched over
into the store. The deputy followed Mr. Moody into the store,
where he stopped and patted him down in search of a weapon.
After not finding a weapon, the deputy explained to Mr. Moody
why he had stopped him. The deputy then asked Mr. Moody if he
had anything in his pockets that he "shouldn't
have." When Mr. Moody said "no," the deputy
asked if he could search Mr. Moody's pockets. Mr. Moody
replied, "I ain't got nothing, yeah, go ahead."
The deputy searched Moody's pockets and found cocaine.
The deputy testified that "maybe a minute" elapsed
between the first stop and frisk and the subsequent search of
Moody moved to suppress the cocaine. He argued that because
the initial stop was unlawful, he did not voluntarily consent
but rather acquiesced to the deputy's request to search
his pockets. The trial court, however, denied Mr. Moody's
motion. The trial court found that even though the first stop
and frisk was illegal as there was "nothing . . . that
would support any kind of search at that point," the
trial court concluded that Mr. Moody's consent to search
was voluntary and was not "fruit of the poisonous
tree." The trial court reasoned that Mr.
Moody's consent to the second search was voluntary
because the deputy's conversation with Mr. Moody was
sufficient to dispel Mr. Moody's "initial fear [of]
the officer." We disagree.
reviewing a trial court's ruling on a motion to suppress,
"this court uses a dual standard." Young v.
State, 207 So.3d 267, 269 (Fla. 2d DCA 2016). That is,
while we defer to the trial court's findings of fact that
are supported by competent substantial evidence, we review de
novo the trial court's "application of the law to
the facts." Id. (citing Cillo v.
State, 849 So.2d 353, 354 (Fla. 2d DCA 2003)).
voluntariness of a defendant's consent is determined from
the totality of circumstances. Hardin v. State, 18
So.3d 1246, 1248 (Fla. 2d DCA 2009) (citing Kutzorik v.
State, 891 So.2d 645, 647 (Fla. 2d DCA 2005)).
"[W]hen consent is obtained after illegal police
activity . . . the unlawful police action presumptively
taints and renders involuntary any consent to search."
Ingraham v. State, 811 So.2d 770, 774 (Fla. 2d DCA
2002) (alteration in original) (quoting Connor v.
State, 803 So.2d 598, 609 (Fla. 2001)). The State may
rebut this presumption of involuntariness "only if there
is clear and convincing proof of an unequivocal break in the
chain of illegality sufficient to dissipate the taint of
prior official illegal action." Norman v. State,
379 So.2d 643, 647 (Fla. 1980). "[T]he taint may be
dissipated by advice to the defendant of his right to refuse
to consent so as to render the subsequent consent free and
voluntary." State v. Boyd, 615 So.2d 786, 790
(Fla. 2d DCA 1993). To determine whether the evidence was
obtained by exploitation of the illegal stop or instead by
means sufficiently distinguishable so as to purge the
evidence of the primary taint, we take into account three
factors: "(1) the time elapsed between the illegality
and the acquisition of the evidence; (2) the presence of
intervening circumstances; and (3) the purpose and flagrancy
of the official misconduct." State v. H.D., 113
So.3d 917, 918 (Fla. 2d DCA 2013) (quoting State v.
Frierson, 926 So.2d 1139, 1143 (Fla. 2006)).
court previously ruled on a case involving the denial of a
motion to suppress with a nearly indistinguishable fact
pattern. In Reed v. State, 577 So.2d 1362 (Fla. 2d
DCA 1991), police officers stopped two black men based on a
radio dispatch that two black males involved in drug activity
were believed to be carrying firearms in the area.
Id. at 1363. The officers immediately advised the
defendant that they were going to conduct a pat down for
weapons. Id. After not finding any weapons on the
defendant, one of the officers explained to the defendant why
they were in the area. Id. The officer then informed
the defendant of his right to refuse consent and asked the
defendant if he could search his pockets. Id. The
defendant responded that he would not mind, and the officer
searched and found illegal drugs in the defendant's
pocket. Id. This court reversed the denial of the
motion to suppress, holding that "there was no
unequivocal break between the illegal stop of the [defendant]
and his consent to the search." Id.
Accordingly, even though the officer advised the defendant of
his right to refuse consent, this court concluded that the
defendant's consent was tainted by the illegal stop.
we conclude that the State did not show by clear and
convincing evidence that there was an unequivocal break
between the initial illegal stop and Mr. Moody's alleged
consent to search. Like in Reed, the only
intervening circumstances between the illegality and the
acquisition of the evidence was the deputy's explanation
as to why he had stopped Mr. Moody and the deputy's
request to search Mr. Moody's pockets. Such facts do not
sufficiently purge the taint of the prior official illegal
action. See id. Nor does the brief amount of
time-about one minute-remove that taint. And while we
recognize that the official misconduct does not appear to be
flagrant or driven by some unlawful purpose, the record is
clear that the deputy did not attempt to dissipate the taint
of the initial illegal stop in any way. The deputy simply
exploited the initial unlawful stop and frisk by asking Mr.
Moody if he had anything illegal on him and whether he could
search his pockets. Indeed, unlike the officer's conduct
in Reed, the deputy here failed to inform Mr. Moody
that he was free to either refuse consent or leave prior to
the search of his pockets. As such, because the State failed
to clearly and convincingly show an unequivocal break in the
chain of illegality sufficient to dissipate the taint of the
prior official illegal action, the trial court erred in
denying Mr. Moody's motion to suppress.
we reverse the trial court's denial of Mr. Moody's
motion to suppress and vacate his judgment and sentence in