Any and all evidence derived from the search of Defendant’s purse and wallet on December 8, 2010 while Defendant was a passenger in a vehicle operated by a Mark Davis. This evidence would include a piece of broken glass pipe allegedly found in Defendant’s purse or wallet, any and all alleged statements made by Defendant during or after the search, and any and all observations and investigations conducted by Officer James Smith of the Cocoa Police Department.


  1. The evidence was illegally seized without a warrant, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 12 of the Constitution of the State of Florida. The evidence was obtained only as a result of an illegal search without a warrant, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 12 of the Constitution of the State of Florida.
  2. The evidence is the “tainted fruit of the poisonous tree,” having been obtained only as a result of illegal law enforcement activity, to-wit: improper stop and improper search.
  3. The evidence was obtained in violation of Defendant’s right to privacy guaranteed by Article I, Section 23, of the Constitution of the State of Florida.
  4. The Defendant did not consent to the search that resulted in the seizure of the evidence described above. Without the Defendant’s consent to the stop, the search and subsequent seizure of the evidence was unlawful.


On December 8, 2010, at around 8:30 pm, Defendant was the passenger in a vehicle driven by an Mark Davis. In the minutes prior, Mr. Davis had parked his vehicle at Joe Lee Rogers Park, located at 400 Washington Street in Cocoa, Florida, in order to use the park restroom. There, he encountered Defendant who asked that Mr. Davis give her a ride. Mr. Davis agreed and returned to the vehicle with Defendant. Upon returning to the vehicle, Mr. Davis and Defendant were approached by Officer Smith of the Cocoa Police Department. Officer Smith conducted a traffic stop of the vehicle and, after making contact with Mr. Davis, the driver, asked Mr. Davis what he was doing at the park. Mr. Davis explained that he had used the restroom at the park and, after doing so, had met Defendant, who requested a ride. Officer Smith then allegedly obtained Mr. Davis’s consent to search the vehicle.

At the time of the search, both Mr. Davis and his passenger, Defendant, were ordered to step out of the vehicle. Defendant’s purse was left inside the vehicle on the passenger seat. Officer Smith was aware that Mr. Davis did not own the purse and did not exercise control or authority over the purse. Officer Smith then proceeded to search the entire vehicle and included in his search the purse belonging to Defendant. He alleges that upon looking through the purse in a black wallet contained within the purse, he located piece of broken glass allegedly used to smoke crack-cocaine. A field test of the glass was conducted, and it allegedly tested positive for cocaine residue.

After field testing the glass piece, Officer Smith placed Defendant under arrest for possession of drug paraphernalia. At that point, Officer Smith had a female officer search Defendant’s person. He then asked Defendant whether she had any other items on her person. Defendant then allegedly handed over another glass pipe allegedly used to smoke crack-cocaine. The officer alleged that the pipe also tested positive for residue of cocaine. Defendant was then transported to the Cocoa Police department and subsequently charged with Possession of Drug Paraphernalia, a first degree misdemeanor under Section 893.147(1), Florida Statutes.


The evidence seized in the present case resulted from an illegal search and must be suppressed under the Fourth Amendment Exclusionary Rule. Even if it is assumed that Mr. Davis consented to a search his entire vehicle, this consent was constitutionally invalid as to the purse and wallet owned by Defendant.

Under the Fourth Amendment to the United States Constitution, the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. The fundamental purpose of the fourth amendment is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings. Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

In the context of automobile searches, the United States Supreme Court has recognized several exceptions to the Fourth Amendment’s warrant requirement. First, police need not obtain a warrant where it is shown that there are exigent circumstances excusing the need to obtain the warrant. However, the police must still have probable cause to undertake the search. Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). Second, police may search a vehicle incident to a recent occupant’s arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009). Third, under the “automobile exception,” law enforcement officers may undertake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize. See Carroll v. United States, 267 U.S. 132 (1925). Thus, in United States v. Ross, 456 U.S. 798 (1982) and in California v. Acevedo, 500 U.S. 565 (1991), the Supreme Court held that, under the automobile exception, police officers may undertake a warrantless search of a closed container found in a vehicle when the officers have probable cause to believe that evidence of criminal activity will be found in the container.

Finally, police may conduct a constitutional warrantless search if they receive valid consent of the person whose premises, property, effects, or person are to be searched. However, in order for a consent search to be valid, the consent given to officers must be voluntary in nature. Bumper v. North Carolina, 391 U.S. 543 (1968). The search conducted must furthermore not exceed the scope of the consent given by the consenting party. U.S. v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971); Honig v. United States, 208 F.2d 916, 919 (8th Cir. 1953).

Where a third party gives consent to a search of items belonging to another person, the government has the burden of establishing the effectiveness of the third party’s consent. Illinois v. Rodriguez, 110 S. Ct. 2793, 2797 (1990). An effective third-party consent can be demonstrated in three ways. First, the government can come forward with persuasive evidence of both shared use and joint access to or control over a searched area, which would demonstrate actual authority to consent. See United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992) (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). Second, it can show that the owner of the property to be searched has expressly authorized a third party to give consent to the search. Finally, the government may establish consent by means of the “apparent authority doctrine.” Rodriguez, 110 S. Ct. at 2801.

Under the “apparent authority” doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant consent for another party. Id. However, the doctrine is applicable only if the facts believed by the officers to be true would justify the search as a matter of law. Salinas-Cano, 959 F.2d at 865-66; United States v. Whitfield, 939 F.2d 1071, 1073-74 (D.C. Cir. 1991); United States v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992). In Florida, a driver “lacks the apparent authority to consent to a search of a passenger’s purse” or other baggage. Brown v. State, 789 So. 2d 1021, 1023 (Fla. 2d DCA 2001) (citing State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999); People v. James, 645 N.E.2d 195, 203 (Ill. 1994); State v. Caniglia, 510 N.W.2d 372 (Neb. Ct. App. 1993)).

Thus, where an officer obtains the consent of a driver to search a vehicle and the officer has reason to suspect that an item, such as a purse or fanny pack, belongs to a passenger in the vehicle, the officer must “inquire of the passenger before searching inside such a purse or fanny pack.” Brown v. State, 789 So. 2d at1022; See also United States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993) (stating that, where a driver gives consent to search an automobile, police officers were required to inquire of passengers further before assuming the companion’s consent was sufficient to authorize them to open a purse they discovered in searching the car); Marganet v. State, 927 So. 2d 52, 61 (Fla. 5th DCA 2006) (stating that, when police officers make an entry or conduct a search, an officer must elicit sufficient facts from which he or she can determine that the person consenting to the search has common authority over the premises or property to be searched).

In the instant case, the search of defendant’s purse was premised on the consent given by Mr. Davis to search the vehicle operated by Mr. Davis. There is no argument that exigent circumstances existed or justified the warrantless search undertaken by Officer Smith. There was furthermore no arrest of the driver, and thus no basis to allege a search incident to arrest. Thus, neither the exigent circumstances exception nor the search incident to arrest exception applies to validate the search conducted of Defendant’s purse. The “automobile exception” also does not apply since Officer Smith does not allege that, at the time of the search, he had probable cause to believe that either the vehicle or the items within the vehicle contained illegal substances.

Thus, the only possible basis for conducting a search of Defendant’s purse was the driver’s consent. Officer Smith states that Mr. Davis “stated yes” when asked for permission to search the vehicle. Officer Smith ordered Defendant out of the vehicle and the basis for the search of the purse was that Defendant had left it “on the passenger’s side seat.”

Even if it is assumed that Mr. Davis consented to the search of his vehicle, this would not justify the search undertaken of Defendant’s purse or wallet. Under existing Florida case precedent, the officer would need to demonstrate that the driver, acting in the capacity of a third party, had the actual or apparent authority to authorize a search of Defendant’s belongings. Here, Officer Smith made no allegation that the driver and Defendant had shared use and joint control over the purse, or that Defendant had authorized the driver to consent to a search of Defendant’s belongings. Thus, there was no actual authority to conduct the search.

In the absence of demonstrated actual authority, the search conducted by Officer Smith would require apparent authority- a reasonable belief that the driver from whom the officer obtained consent had the actual authority to grant consent with respect to items that actually belonged to Defendant, a passenger in the vehicle. Under the facts of the present case, Officer Smith had no such reasonable belief.

In his arrest affidavit, he acknowledges that he was aware that Mr. Davis had just met Defendant. Clearly, there is no reasonable basis to conclude that Mr. Davis would have had authority to give a law enforcement officer permission to search a personal belonging of a woman Mr. Davis had known for just minutes. It was furthermore unreasonable to believe that a male driver owned or possessed a purse, an accessory typically worn by a female such as Defendant. If the officer had any doubts as to ownership of the purse, he was required to inquire of Defendant before conducting his search. Brown v. State, 789 So. 2d at 1022. The officer made no such inquiry, which further renders unreasonable any beliefs he may have had as to authority of the driver to consent to the search undertaken in this case.

WHEREFORE, Defendant respectfully requests that this Honorable Court enter an order suppressing in this case the evidence described above.