Defendant Did Not "Consent" To Search While Already Handcuffed

In Ballenger v. State (2D08-3934), the Second District reversed because the police conducted an unconstitutional pat-down search.  In addition to other issues relating to the search, the court stated:

The State counters that because Ms. Ballenger gave the second deputy permission to seize the crack pipe after he felt it in her pocket, she had consented to its seizure, rendering it constitutional. Consent is one of the few exceptions to the warrant requirement. V.H. v. State, 903 So. 2d 321, 322 (Fla. 2d DCA 2005). "The question of whether a consent is voluntary is a question of fact to be determined from the totality of the circumstances." Reynolds, 592 So. 2d at 1086. Further, " 'the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.' " Id. (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). Although the State normally must prove voluntariness of consent only by a preponderance of the evidence, "[w]here there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action." Id. (citing Norman v. State, 379 So. 2d 643, 647 (Fla. 1980)).

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Although the Florida Supreme Court has been "reluctant to hold that consent given while handcuffed can never be voluntary under any circumstances[,] . . .[b]ecause of the inherently coercive nature of handcuffing, the fact that one is under such restraint at the time consent is given will make the State's burden to show voluntariness particularly difficult." Id. at 1087. The State failed to produce evidence that satisfies this heightened burden. Ms. Ballenger's cooperation regarding the crack pipe and the pills in her pocket at the time of the second pat-down constituted a submission to authority, not a freely and voluntarily given consent. Consequently, the State's evidence fell short of proving that the consent was not coerced, and the trial court erred in denying Ms. Ballenger's motion to suppress.