Page 1
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NOTICE: THIS OPINION HAS NOT BEEN RE-
LEASED FOR PUBLICATION IN THE PER-
MANENT LAW REPORTS. UNTIL RELEASED,
IT IS SUBJECT TO REVISION OR WITHDRAW-
AL.
District Court of Appeal of Florida,
Fourth District.
Freddie RUIZ, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-1544.
Jan. 12, 2011.
Background: Defendant was charged with traffick-
ing in cocaine and possession of cannabis. The Cir-
cuit Court, 17th Judicial Circuit, Broward County,
Andrew L. Siegel, J., denied defendant's motion to
suppress evidence. Defendant appealed.
Holding: The District Court of Appeal, Gross, C.J.,
held that District Court of Appeal was required to
defer to express finding of credibility made by trial
court.
Affirmed.
West Headnotes
[1] Searches and Seizures 349 172
349 Searches and Seizures
349V Waiver and Consent
349k172 k. Words or Conduct Expressing
Consent; Acquiescence. Most Cited Cases
Searches and Seizures 349 194
349 Searches and Seizures
349VI Judicial Review or Determination
349k192 Presumptions and Burden of Proof
349k194 k. Consent, and Validity There-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
of. Most Cited Cases
Where consent to a search is the issue, the state
has the burden of proving that the necessary con-
sent was obtained and that it was freely and volun-
tarily given, a burden that is not satisfied by show-
ing a mere submission to a claim of lawful author-
ity. U.S.C.A. Const.Amend. 4.
[2] Searches and Seizures 349 198
349 Searches and Seizures
349VI Judicial Review or Determination
349k195 Weight and Sufficiency of Evidence
349k198 k. Validity of Consent. Most
Cited Cases
The state must prove voluntariness of consent
to search by a preponderance of the evidence, but if
there has been an illegal detention, the state must
establish by clear and convincing evidence that the
consent was not a product of the illegal police ac-
tion. U.S.C.A. Const.Amend. 4.
[3] Searches and Seizures 349 201
349 Searches and Seizures
349VI Judicial Review or Determination
349k201 k. Questions of Law or Fact. Most
Cited Cases
Whether consent to search is voluntary is a
question of fact to be determined from the totality
of the circumstances. U.S.C.A. Const.Amend. 4.
[4] Searches and Seizures 349 172
349 Searches and Seizures
349V Waiver and Consent
349k172 k. Words or Conduct Expressing
Consent; Acquiescence. Most Cited Cases
Consent to search may be in the form of con-
duct, gestures, or words. U.S.C.A. Const.Amend. 4.
[5] Searches and Seizures 349 180
349 Searches and Seizures
349V Waiver and Consent

--- So.3d ----, 2011 WL 92752 (Fla.App. 4 Dist.), 36 Fla. L. Weekly D99
(Cite as: 2011 WL 92752 (Fla.App. 4 Dist.))
349k179 Validity of Consent
349k180 k. Voluntary Nature in General.
Most Cited Cases
To decide whether a consent is voluntary,
courts consider a number of factors, including the
time and place of the encounter, the number of po-
lice officers present, the officers' words and actions,
and the age, education, or mental condition of the
person detained. U.S.C.A. Const.Amend. 4.
[6] Searches and Seizures 349 25.1
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k25.1 k. In General. Most Cited Cases
Searches and Seizures 349 180
349 Searches and Seizures
349V Waiver and Consent
349k179 Validity of Consent
349k180 k. Voluntary Nature in General.
Most Cited Cases
A private home is an area where a person en-
joys the highest reasonable expectation of privacy
under the Fourth Amendment; therefore, the factors
bearing on the voluntariness of a consent to search
a home must be scrutinized with special care.
U.S.C.A. Const.Amend. 4.
[7] Searches and Seizures 349 184
349 Searches and Seizures
349V Waiver and Consent
349k179 Validity of Consent
349k184 k. Custody, Restraint, or Deten-
tion Issues. Most Cited Cases
Central to the idea of a consensual encounter
with respect to a search is the notion that if a reas-
onable person would feel free to end the police en-
counter, but does not, and is not compelled by the
police to remain and continue the interaction, then
he or she has consented to the encounter. U.S.C.A.
Const.Amend. 4.
[8] Searches and Seizures 349 171
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
349 Searches and Seizures
349V Waiver and Consent
349k171 k. In General. Most Cited Cases
In the Fourth Amendment context, “consent”
means that set of circumstances that the law will
tolerate as an exception to the probable cause or
warrant requirement. U.S.C.A. Const.Amend. 4.
[9] Searches and Seizures 349 180
349 Searches and Seizures
349V Waiver and Consent
349k179 Validity of Consent
349k180 k. Voluntary Nature in General.
Most Cited Cases
Aggressive conduct by the police will not ne-
cessarily vitiate consent to search when viewed as a
part of the totality of the circumstances. U.S.C.A.
Const.Amend. 4.
[10] Searches and Seizures 349 180
349 Searches and Seizures
349V Waiver and Consent
349k179 Validity of Consent
349k180 k. Voluntary Nature in General.
Most Cited Cases
The “totality of the circumstances” approach to
consent to search allows a trial court to rely on oth-
er factors that swallow aggressive police conduct
and contract the limits of Fourth Amendment pro-
tection. U.S.C.A. Const.Amend. 4.
[11] Criminal Law 110 1134.49(4)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110XXIV(L)4 Scope of Inquiry
110k1134.49 Evidence
110k1134.49(4) k. Illegally Ob-
tained Evidence. Most Cited Cases
District Court of Appeal was required to defer
to express finding of credibility made by trial court,
and thus to affirm trial court's decision that police
officers obtained consent to search defendant's

--- So.3d ----, 2011 WL 92752 (Fla.App. 4 Dist.), 36 Fla. L. Weekly D99
(Cite as: 2011 WL 92752 (Fla.App. 4 Dist.))
apartment, notwithstanding that cases like the one
at bar, in which officers testified that defendant co-
operatively lead them to his apartment to obtain his
identification and invited them inside, that detective
then saw contraband in plain view, and that defend-
ant then told them about all hidden drugs in apart-
ment, called into question the fairness of some trial
court proceedings. U.S.C.A. Const.Amend. 4.
Appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Andrew L.
Siegel, Judge; L.T. Case No.
07-10902CF10A.Carey Haughwout, Public Defend-
er, and Narine N. Austin, Assistant Public Defend-
er, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee,
and Melynda L. Melear, Assistant Attorney Gener-
al, West Palm Beach, for appellee.
GROSS, C.J.
*1 This case is a paradigm for a type of case
that is common in our courts, where “consent” to a
search is found under objectively questionable cir-
cumstances.
Freddie Ruiz was charged with trafficking in
cocaine and possession of cannabis. He moved to
suppress, alleging that the evidence was the product
of an unlawful search and seizure. The trial court
denied the dispositive motion and Ruiz now has ap-
pealed to this court.
At the hearing on the motion, detectives testi-
fied they received an anonymous tip that a person
with dreadlocks was selling narcotics from a certain
apartment. The same afternoon that the police re-
ceived the tip, two detectives drove to the location
and parked across the street. After a few minutes,
Ruiz left the apartment. He had dreadlocks.
The detectives drove their unmarked car into
the parking lot of the complex. They got out of
their car and “nonchalantly” or “casually” ap-
proached Ruiz. One detective “calmly” asked Ruiz
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
his name and he “calmly” replied that it was
“Freddie” and that “he had his identification in his
apartment, if [the officer] would like to see it.” One
detective said that he wanted to see it and Ruiz led
the two law enforcement agents up to his apart-
ment. Ruiz went inside and “motioned” or
“nodded” at the detectives to enter, so they went in-
side. Ruiz walked through the living room into the
bedroom; one detective followed and waited at the
entrance to the bedroom. From this vantage point,
the detective saw a scale and silver spoon with co-
caine residue in the scoop part of the spoon. The
detective asked Ruiz if the substance was cocaine,
and Ruiz admitted it was. The detectives then
“detained” Ruiz and read him his Miranda rights.
Ruiz was most cooperative-he told them that addi-
tional cocaine was located in a Barbasol shaving
cream can and “weed” was inside his dresser draw-
er.
Ruiz also testified at the suppression hearing.
His version of events differed substantially from
that of the detectives. Ruiz was on his way back
from the store when three officers stopped their
vehicle in front of him, jumped out with their guns
drawn, and told him not to move. Ruiz did not think
he was free to leave. One officer frisked him and
asked for his identification. Ruiz said he did not
have any identification and the police said they
would arrest him if he could not produce some
identification. Ruiz said that his identification was
in his apartment. The officers escorted him to his
apartment. After he opened the door, the officers
went inside and searched through everything. Ruiz
did not give the officers permission to enter his res-
idence.
The trial judge found the officers “very cred-
ible” and Ruiz's “testimony” “not credible.” Based
on the “totality of the circumstances,” the court
found that “this was a citizen's encounter” where
Ruiz “allowed” the police to “come in” to his apart-
ment.
[1][2] In reviewing an order on a motion to
suppress, an appellate court defers to the trial

--- So.3d ----, 2011 WL 92752 (Fla.App. 4 Dist.), 36 Fla. L. Weekly D99
(Cite as: 2011 WL 92752 (Fla.App. 4 Dist.))
court's factual findings but reviews de novo the ap-
plication of the law to the facts. E.g., Pantin v.
State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004).
A search conducted pursuant to consent is an ex-
ception to the Fourth Amendment requirements of a
warrant or probable cause. Schneckloth v. Busta-
monte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973). Where consent to a search is
the issue, “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.” Florida v. Royer, 460 U.S.
491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
The state must prove voluntariness by a preponder-
ance of the evidence, Jorgenson v. State, 714 So.2d
423, 426 (Fla.1998), but if there has been an illegal
detention, the state must establish by clear and con-
vincing evidence that the consent was not a product
of the illegal police action. Reynolds v. State, 592
So.2d 1082, 1086 (Fla.1992).
*2 [3][4][5][6][7] Whether consent is voluntary
is a question of fact to be determined from the total-
ity of the circumstances. McDonnell v. State, 981
So.2d 585, 588 (Fla. 1st DCA 2008). “Consent to
search may be in the form of conduct, gestures, or
words.” State v. Gamez, 34 So.3d 245, 247 (Fla. 2d
DCA 2010). To decide whether a consent is volun-
tary, courts consider a number of factors, including
the time and place of the encounter, the number of
police officers present, the officers' words and ac-
tions, and the age, education, or mental condition of
the person detained. Hardin v. State, 18 So.3d
1246, 1248 (Fla. 2d DCA 2009); State v. Evans, 9
So.3d 767, 769 (Fla. 2d DCA 2009). “[A] private
home, as here, is an area where a person enjoys the
highest reasonable expectation of privacy under the
Fourth Amendment[.] [S]ee, e.g., Payton v. New
York, 445 U.S. 573, 585, 589-90, 100 S.Ct. 1371,
63 L.Ed.2d 639, (1980). [Therefore,] the factors
bearing on the voluntariness of a consent to search
a home must be scrutinized with special care.”
Gonzalez v. State, 578 So.2d 729, 734 (Fla. 3d
DCA 1991) (parallel citations omitted). Central to
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
the idea of a consensual encounter “is the notion
that if a reasonable person would feel free to end
the police encounter, but does not, and is not com-
pelled by the police to remain and continue the in-
teraction, then he or she has consented to the en-
counter.” Golphin v. State, 945 So.2d 1174, 1182
(Fla.2006).
[8][9] Over time, the concept of “consent” to a
search has become divorced from its common
meaning. In the Fourth Amendment context,
“consent” has come to mean that set of circum-
stances that the law will tolerate as an exception to
the probable cause or warrant requirement. What
passes for “consent” today would not have survived
a motion to suppress 25 years ago. Now, even ag-
gressive conduct by the police will not necessarily
vitiate “consent” when viewed as a part of the
“totality of the circumstances.” Thus, in Golphin v.
State, the Supreme Court rejected the concept that,
as a matter of law, an otherwise consensual en-
counter matures into a seizure when an officer re-
tains a person's identification to conduct a check for
outstanding warrants. Id. at 1187-89. Similarly, in
Caldwell v. State, 41 So.3d 188 (Fla.2010), the Su-
preme Court held that the administration of Mir-
anda warnings, as a matter of law, does not trans-
form a consensual encounter into a seizure. Under
Golphin and Caldwell, the challenged police con-
duct was but one factor to be considered in the to-
tality of the circumstances.
[10] The “totality of the circumstances” ap-
proach has expanded the concept of “consent” in a
way that has had a significant effect on the admin-
istration of criminal justice. It allows a trial court to
rely on other factors that swallow aggressive police
conduct and contract the limits of Fourth Amend-
ment protection.
In many cases, the police rely upon a defend-
ant's voluntary consent to justify a search or a stop.
One possibility is that citizens, especially those in-
volved in crimes, have a desire to cooperate with
the police to avoid making waves. Another possib-
ility, far more sinister, is that the police have come

--- So.3d ----, 2011 WL 92752 (Fla.App. 4 Dist.), 36 Fla. L. Weekly D99
(Cite as: 2011 WL 92752 (Fla.App. 4 Dist.))
to recognize that “consent” is the catch-all excep-
tion to the Fourth Amendment, so they tailor their
testimony accordingly.
*3 After Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961), applied the exclu-
sionary rule to state prosecutions, one trial judge
noticed the profusion of “dropsy” testimony in New
York City-testimony by police officers that a de-
fendant dropped drugs onto the street upon seeing
the police:
Were this the first time a policeman had testi-
fied that a defendant dropped a packet of drugs to
the ground, the matter would be unremarkable.
The extraordinary thing is that each year in our
criminal courts policemen give such testimony in
hundreds, perhaps thousands, of cases-and that,
in a nutshell, is the problem of ‘ dropsy ’ testi-
mony. It disturbs me now, and it disturbed me
when I was at the Bar. Younger, ‘The Perjury
Routine,’ The Nation, May 8, 1967, p. 596:
‘ * * * Policemen see themselves as fighting
a two-front war-against criminals in the street
and against ‘liberal’ rules of law in court. All's
fair in this war, including the use of perjury to
subvert ‘liberal’ rules of law that might free
those who ‘ought’ to be jailed * * * It is a pe-
culiarity of our legal system that the police
have unique opportunities (and unique tempta-
tions) to give false testimony. When the Su-
preme Court lays down a rule to govern the
conduct of the police, the rule does not enforce
itself. Some further proceeding * * * is almost
always necessary to determine what actually
happened. In Mapp v. Ohio, for example, the
Supreme Court laid down the rule that evidence
obtained by the police through an unreasonable
search and seizure may not be used in a state
criminal prosecution. But before applying the
rule to any particular case, a hearing must be
N.Y.S.2d
held to establish the facts. Then the judge de-
(Younger, J.). “ Dropsy ” in 1970 has evolved into
cides whether those facts constitute an unreas-
“consent” in 2010. The more things change the
onable search and seizure. * * * The difficulty
more they stay the same.
arises when one stands back from the particular
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
case and looks at a series of cases. It then be-
comes apparent that policemen are committing
perjury at least in some of them, and perhaps in
nearly all of them. Narcotics prosecutions in
New York City can be so viewed. Before
Mapp, the policeman typically testified that he
stopped the defendant for little or no reason,
searched him, and found narcotics on his per-
son. This had the ring of truth. It was an illegal
search (not based upon ‘probable cause’), but
the evidence was admissible because Mapp had
not yet been decided. Since it made no differ-
ence, the policeman testified truthfully. After
the decision in Mapp, it made a great deal of
difference. For the first few months, New York
policemen continued to tell the truth about the
circumstances of their searches, with the result
that evidence was suppressed. Then the police
made the great discovery that if the defendant
drops the narcotics on the ground, after which
the policeman arrests him, the search is reason-
able and the evidence is admissible. Spend a
few hours in the New York City Criminal
Court nowadays, and you will hear case after
case in which a policeman testifies that the de-
fendant dropped the narcotics on the ground,
whereupon the policeman arrested him. Usually
the very language of the testimony is identical
from the case to another. This is now known
among defense lawyers and prosecutors as ‘
dropsy’ testimony. The judge has no reason to
disbelieve it in any particular case, and of
course the judge must decide each case on its
own evidence, without regard to the testimony
in other cases. Surely, though, not in every case
was the defendant unlucky enough to drop his
narcotics at the feet of a policeman. It follows
that at least in some of these cases the police
are lying.
*4 People v. McMurty, 64 Misc.2d 63, 314
194, 195-96 (N.Y.Crim.Ct.1970)
 Page 6
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(Cite as: 2011 WL 92752 (Fla.App. 4 Dist.))

The profusion of consent cases requires trial

judges, the gatekeepers of the Fourth Amendment,
to critically evaluate the testimony given at hear-
ings. Cases like this one call into question the fair-
ness of some trial court proceedings. On the pages
of the record, the story told by the police is unbe-
lievable-an anonymous informant gives incriminat-
ing information; police surveillance uncovers no
criminal conduct; the defendant is “nonchalantly”
and “casually” approached by the police on the
street; the defendant cooperatively leads the police
back to his apartment to obtain his identification
and invites the police inside, where a detective sees
contraband in plain view, a fact certainly known to
the defendant when he issued the invitation; after
his arrest, the defendant tells the police about all
the hidden drugs in the apartment.

[11] Yet, as an appellate court, we must defer

to the express finding of credibility made by the tri-
al court. We were not there. We did not see the wit-
nesses testify. If believed, the detectives' testimony
supports the court's ruling. This case demonstrates
the importance of an independent judiciary. This
case involves the search of a person's home, but
were the factors bearing on the voluntariness of the
consent scrutinized “with special care?” Without an
unbiased and objective evaluation of testimony,
judges devolve into rubber stamps for law enforce-
ment. The judge may have punctiliously performed
the duties of his office in this case, but, when con-
sidering the large number of “consent” cases that
have come before us, the finding of “consent” in so
many curious circumstances is a cause for concern.

Affirmed.

DAMOORGIAN and MAY, JJ., concur.

Fla.App. 4 Dist.,2011.
Ruiz v. State
--- So.3d ----, 2011 WL 92752 (Fla.App. 4 Dist.),
36 Fla. L. Weekly D99

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.