September 2005, Volume 1 Article 5
The following case was researched and obtained from the fifth district court of
appeal. (5th DCA) by Nelson L. Delgado. CLA
This case deals with a consent to search-containers found in persons pockets.
Deputy Spell, from Florida's Orange County Sheriffs Office was patrolling an area
known for drug trafficking and use. At about 3:00 A.M. He observed the defendant
(Charles Allen) riding his bicycle, the defendants bicycle had no working lights, a
"Traffic Infraction", Deputy Spell activated his blue lights and stopped the
defendant. The Deputy engaged the defendant in conversation in which he asked
the defendant if he could search him and the defendant agreed.
The Deputy testified that before beginning the search, he told the defendant he
had the right to refuse and asked him if he understood that right. The defendant
responded, "yes". pursuant to the search, the Deputy located several chapstick
containers in the defendants pockets, he opened the chapstick and found plastic
baggies with what the Deputy thought was contraband, the contraband field
tested positive for cannabis and cocaine.
The defendant was arrested on several drug-related charges, on appeal the
defendant argued that the Deputy should not have been allowed to open the
containers found in his pockets, because a general consent to search one's
person does not encompass consent to open any closed containers found on
that person.
The Fifth District Count of Appeal disagreed, finding that the defendant was
legally stopped and when asked gave and understood the consent to be
searched (as opposed to a pat-down search for a weapons). Because the
defendant gave the Deputy his general consent to search his person and made
no effort to limit or withdraw his consent, the Deputy was authorized to seize and
withdraw the objects in this case (chapstick containers) found in his pockets and
if they consist of closed containers the Deputy may open them.
The (Fifth DCA) further stated that they do not believe that the Deputy needed
probable cause, to believe that the containers contained contraband in order to
open it, although in this case, based on the Deputy's experience, he probably
had sufficient cause to suspect that the containers contained contraband.
Did you Know.... It is a Third degree felony for a person to knowingly and willfully
use a self-defense chemical spray, non lethal stungun, or non lethal electronic
weapon or device or remote stungun, against a law enforcement officer engaged
in the performance of their duties. Florida State Statute 790.054 (2004)
The following case was researched and obtained from the fifth district court of
appeal. (5th DCA) by Nelson L. Delgado. CLA
This case deals with a consent to search-containers found in persons pockets.
Deputy Spell, from Florida's Orange County Sheriffs Office was patrolling an area
known for drug trafficking and use. At about 3:00 A.M. He observed the defendant
(Charles Allen) riding his bicycle, the defendants bicycle had no working lights, a
"Traffic Infraction", Deputy Spell activated his blue lights and stopped the
defendant. The Deputy engaged the defendant in conversation in which he asked
the defendant if he could search him and the defendant agreed.
The Deputy testified that before beginning the search, he told the defendant he
had the right to refuse and asked him if he understood that right. The defendant
responded, "yes". pursuant to the search, the Deputy located several chapstick
containers in the defendants pockets, he opened the chapstick and found plastic
baggies with what the Deputy thought was contraband, the contraband field
tested positive for cannabis and cocaine.
The defendant was arrested on several drug-related charges, on appeal the
defendant argued that the Deputy should not have been allowed to open the
containers found in his pockets, because a general consent to search one's
person does not encompass consent to open any closed containers found on
that person.
The Fifth District Count of Appeal disagreed, finding that the defendant was
legally stopped and when asked gave and understood the consent to be
searched (as opposed to a pat-down search for a weapons). Because the
defendant gave the Deputy his general consent to search his person and made
no effort to limit or withdraw his consent, the Deputy was authorized to seize and
withdraw the objects in this case (chapstick containers) found in his pockets and
if they consist of closed containers the Deputy may open them.
The (Fifth DCA) further stated that they do not believe that the Deputy needed
probable cause, to believe that the containers contained contraband in order to
open it, although in this case, based on the Deputy's experience, he probably
had sufficient cause to suspect that the containers contained contraband.
Did you Know.... It is a Third degree felony for a person to knowingly and willfully
use a self-defense chemical spray, non lethal stungun, or non lethal electronic
weapon or device or remote stungun, against a law enforcement officer engaged
in the performance of their duties. Florida State Statute 790.054 (2004)
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