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Court Reverses Conviction For Trafficking In Cocaine

Court Reverses Conviction For Trafficking In Cocaine Because Multiple Searches Of Motel Room At 2:00 A.M. By Police Without A Warrant While Defendant's Wife Was Naked Under The Bed Sheets Was Intimidating And Coercive.

The case of Hardin v. State, 34 Fla. L. Weekly D2080 (Fla. 2d DCA October 9, 2009) involved a conviction for cocaine trafficking.

The conviction was reversed because of the failure of the trial court to suppress the cocaine that formed the basis of the conviction.

Late one night in Hillsborough County, deputy sheriffs were driving in the parking lot of a Motel 6. The deputies noticed a car bearing a license plate from Brownsville, Texas. The deputy sheriffs considered Brownsville a center of illegal drug activity and therefore, decided to investigate further. The deputies went to the motel clerk and developed information concerning the persons associated with the car.

The room was registered to Mr. Hardin but Hardin was not the registered owner of the automobile. At approximately 2:00 a.m. the deputies went to the hotel room and knocked on the door. Mr. Hardin came outside to speak with the deputies. Hardin told the deputies that the car belonged to his wife's sister. A female deputy asked if she could enter the room and talk with Hardin's wife. Hardin's wife was in bed naked under the sheets. The female deputy was given permission to enter the room while Mr. Hardin remained outside.

Mrs. Hardin could not speak English so arrangements were made for a translator to appear. Another deputy sheriff arrived who could speak Spanish. This deputy, a male, entered the room and Mrs. Hardin was advised that they knew that there were drugs in the room.

The car was searched without finding any drugs. The room was also searched. While the search was going on a third deputy, another male, entered the room. Even though the search revealed no drugs, the deputies kept telling Mrs. Hardin that they knew there were drugs in the room and promised that if she cooperated she would not be in trouble. Finally after approximately one hour and two searches that found no drugs, Mrs. Hardin surrendered her purse which contained cocaine. The purse had been under the sheets.

Mr. Hardin pled guilty to trafficking in cocaine reserving the right to appeal the dispositive order denying his motion to suppress.

The motion to suppress was based upon the fact that Hardin's wife did not voluntarily turn over the contraband.

The court noted that warrantless searches are per se unreasonable and violate the Fourth Amendment. Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000) andCoolidge v. New Hampshire, 403 US 443, 454-55 (1971). Overruled on other grounds. Recognized by O'Rourke v. Hayes, 378 F.3d 1201,1208 (11th Cir. 2004).

The court went on to note that while consent is an exception to this general rule, the state bears a heavy burden of showing that consent was given voluntarily and not mere acquiescence to police authority. In considering whether consent is voluntary, the court considers the totality of the circumstances. Kutzorik v. State, 891 So. 2d 645, 647 (Fla. 2d DCA 2005). Three factors form the basis for this analysis: (1) the time and place of the encounter; (2) the number of officers present; and, (3) the officer's words and actions. Miller v. State, 865 So. 2d 584, 587 (Fla. 5th DCA 2004).

The court noted that the initial contact by the deputy, known as a "knock and talk" in the early morning hours is appropriate. However, it is an intimidating circumstance. The number of deputies who entered the motel room suggested that Mrs. Hardin consented to law enforcement authority was less than voluntary. The court citedRoyer v. State, 389 So. 2d 1007, 1018 (Fla. 3d DCA 1979) which held that being in a small enclosed area, confronted by two police officers presented an almost classic definition of imprisonment.

The court also noted that Mrs. Hardin was in a room with three deputies. Two of whom were men. The fact that she was naked under the sheets was more likely to cause intimidation by the show of the police authority.

The court also noted that both Hardin and his wife, from the outset were told that they were being investigated for illegal drugs.

The court noted that there were repeated requests that Mrs. Hardin surrender the drugs even though there had been searches of the room without finding any drugs. The court noted that repeated requests for consent may be significant in showing that the request was in reality, a demand and when an individual is informed of the suspicions of the police in a "hectoring manner" a specter of coercion may arise.

The court concluded that coercion rather than voluntary consent compelled Mrs. Hardin to turn over the contraband.

The court then discussed the profiling of anyone from Brownsville, Texas. It stated,

"[T] he deputies sprang into action on this supposition that anyone from Brownsville must be engaged in illegal activity." The court went on to comment, "[W]e cannot conclude that it is reasonable to suspect criminal behavior solely because of an individual's origin. See Royer, 389 So. 2d at 1016 'The fallacy of the undistributed middle directly applies: all narcotics carriers act like parts of the profile, but most people who act like parts of the profile are not narcotics carriers.'"

The court also went on to note that discrepancy between the names on the car and motel registrations was an unreasonable basis to believe that drug activity was afoot. The court wrote, "[O]ne's use in this manner of a name which is not his own, while perhaps suspicious, is not unlawful and certainly does not give rise to a reasonable belief that he is in the process of committing a felony."

The court finally commented, "The initial 'knock and talk' was lawful. But, continuing the encounter in the intimidating manner suggested by the record for at least an hour and after two fruitless searches exceeds the bounds of consent."

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