Cops Who Repeatedly Treated Refusal As Consent Watch Their Seized Evidence Vanish

Legal Issues

from the 'just-say-no'-campaign-fails-again dept

Some people just don’t work well without direct supervision. When not responding to calls, officers are often left to their own discretion. Some do well with this freedom. Others… well, others do this sort of thing. [PDF]

Officers Biandudi and Wyle were patrolling a Pinellas County neighborhood in a marked police car. They saw twelve-year-old F.C. and his friend, Pedro, playing in the grassy common area of their mobile home park. Officer Biandudi testified that the boys looked like they were just playing around and having fun. He saw nothing alarming. Nevertheless, he pulled over and stopped the patrol car. He and Officer Wyle exited the car. They were uniformed and armed. They approached the boys and asked if they could search them. The boys consented. The officers found small amounts of marijuana on each boy. The State charged each with possession of cannabis.

No probable cause, much less reasonable suspicion. Just a couple of cops with nothing better to do and a couple of easy targets — ones they knew from previous, apparently questionable interactions — out in the open.

A motion to suppress the evidence was rejected by the lower court. The court expressed dismay at the officers’ actions but still felt there was no precedent to support suppression.

There is no case law in here that says that if a person feels like they have no choice, then they’re coerced. . . . .

[T]he reason why he felt that he needed to do it was because the officers had on a uniform and he felt that if he would have said no that it was going to happen anyway. But there’s no case law that you’ve given me that said if a person says yes and they’re saying yes because an officer has on a uniform that they have been coerced into doing that.

Both boys testified they felt compelled to consent to the search. More importantly, they felt that refusing consent — which was well within their rights — was futile. According to their previous experiences with these same officers, refusal had never resulted in them being left alone. Searches were performed anyway.

The Florida appeals court disagrees with the lower court’s assessment, fortunately. Citing case law the teen’s defense lawyer apparently couldn’t locate, the appeals court notes that the state must reach a higher bar when claiming to have obtained consent from juveniles for searches. The state didn’t meet it here. The lower court’s inability to locate supporting case law caused it to arrive at the wrong conclusion: that the juveniles should have known they could have refused consent — placing the burden on the juveniles for not trying harder to deter the officers from obtaining consent.

The appeals court points out that this conclusion misses a very key aspect of this interaction — and others — between the teens and these two police officers. The juveniles knew they could refuse consent. They also knew it would make no difference.

Here, in addition to F.C.’s young age, he and Pedro both testified that these same officers searched him in a previous encounter, ignoring F.C.’s refusal to be searched. The trial court considered these circumstances and concluded that F.C. and Pedro were not “green” because they had been stopped and searched before. The implication is that where juveniles have experience with law enforcement, they will know their rights. However, the opposite applies here—their experience taught them that saying no would not deter the police.

It doesn’t matter if you know your rights when the police are just going to ignore them. That’s what these two boys had concluded from their multiple interactions with these two officers. Refusing consent was no different than giving it. The appeals court gets it right: suppressing evidence is a deterrent to police misconduct, and these two officers are severely in need of judicial discouragement.

Filed Under: 4th amendment, consent, pinellas county, police, searches, seizure