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

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


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  • icon
    Christopher Best (profile), 7 Dec 2016 @ 2:44pm

    I remember seeing a note from the defense lawyer saying they had cited the case, but the lower court just ignored it and claimed they hadn't cited anything. I'll see if I can find that...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 3:10pm

    Cops who ignore rights should get the same treatment

    NYPD and other cops who perform stop and frisks should all be subject to exactly the same thing multiple times per day for the rest of their lives. They have no problem violating others whenever they change the law and make a suspect guilty automatically and fill in the paperwork with what they were guilty of, after the fact.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Dec 2016 @ 4:32pm

      Re: Cops who ignore rights should get the same treatment

      That's a terrible idea. Think of the poor people that will have to frisk a sweaty piggasaurus multiple times a day.

      Instead, just plant some drugs on them, railroad them through the system, and let 'em have a free lesson on what happens to corrupt oinkers in prison.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I wannaw atch free movies, 7 Dec 2016 @ 4:24pm

    Tchikita

    Dozi !

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 4:41pm

    Remember kids,

    Just say no, when you have drugs. Or was it, say no to drugs.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Dec 2016 @ 4:47pm

    Warped logic at it's finest

    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 assailant had a knife and he felt that if he would have said no that he would have been robbed 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 assailant has a weapon that they have been coerced into doing that.

    reply to this | link to this | view in chronology ]

    • identicon
      TripMN, 7 Dec 2016 @ 7:17pm

      Re: Warped logic at it's finest

      Isn't this the definition of coercion? You feel you have no choice based on the circumstances present, especially when the other side displays a willingness to not let you say no.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 7 Dec 2016 @ 8:08pm

        Re: Re: Warped logic at it's finest

        Exactly so, which is why the original court's ruling is so incredibly absurd, and positively reeks of willful blindness and deliberately twisting the facts of the case to avoid a ruling they didn't want to give.

        Beyond the idea that saying 'no' to a cop tends to go poorly for those doing so, these particular cops had a history of completely ignoring it when the kids in question said no, making a refusal beyond pointless and possibly dangerous, so the idea that there was no coercion involved is ridiculous.

        As my example demonstrated by the same logic employed a mugging doesn't involve 'coercion' either, yet I rather doubt the court would see that as acceptable for anyone without a badge.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 5:45pm

    "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."

    This is the biggest load of bullshit. The nature and intention of the police uniform is coercion itself. The reason police wear uniforms and badges is to be identifiable as having authority to enforce laws and require compliance of the officer's orders. The presence of uniformed officer is the utmost form of coercion. It directly affects behaviors that would not otherwise happen were the officer not there. This lower court demonstrated that it doesn't understand what coercion is.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Dec 2016 @ 7:29am

      Re:

      Exactly the phrase...

      "Under Color of Authority"

      Describes that phenomenon.

      When people are faced with authority many feel unnecessarily compelled to do as they are asked even when that ask is unreasonable.

      They did an experiment with this on a train where people dressed as the police and asked people to get out of their seats even if there were plenty of other available seats.

      When a nobody made the "unreasonable request" for the seats a lot more people resisted the requests.

      When an officer made the "unreasonable request" a lot more people got the fuck out the way!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 7:44pm

    How is it reasonable to expect 12 years kids to know their rights. Many adults don't even know this. Also, kids are generally taught to obey authority figures.

    I know reading, writing, math, science, etc. are all important but schools really need to start teaching some common sense skills needed in everyday life such as our legal rights, how to manage money/credit, and other useful everyday knowledge that society just assumes parents will teach their kids and often don't.

    reply to this | link to this | view in chronology ]

    • icon
      afn29129 (profile), 7 Dec 2016 @ 8:09pm

      Re:

      Actually I was taught that there were certain things that 'authority figures' couldn't order me to do. Not to reflexively obey. No Pavlovian conditioning please. As for parents teaching their children important life-skills.. All too often the parents don't have the skills themselves so they can't pass it on to their children.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Dec 2016 @ 8:39pm

      Re:

      How is it reasonable to expect 12 years kids to know their rights. Many adults don't even know this.

      Which is why you should never go anywhere without taking a lawyer with you. If you don't have a lawyer with you, it means you must not care about your rights and therefore waive them.

      /s

      reply to this | link to this | view in chronology ]

  • icon
    TRX (profile), 7 Dec 2016 @ 7:45pm

    Hm. As I understand it, 12-year-olds, being minors, can't give consent. The cops would have had to contact their parents, or perhaps whatever their local Child Services outfit is called.

    reply to this | link to this | view in chronology ]

    • identicon
      Paul Brinker, 7 Dec 2016 @ 8:06pm

      Re:

      2 Problems with this,
      1st the defence needs to raise this as a defence. Since it was not raised, it does not go to appeal.

      2nd the defence is only given limited space to provide its defence (a few pages). So only the best arguments can be used.

      In this case, going after the cohersion (cops have said "not giving consent makes you suspicious" in the past over "kids can't consent a search" holds more water. Note that there are many reasons to search a kid and cops seldom care about the age, looking for weapons (pat down) etc does not require consent anyway. So this was the stronger legal argument for this case.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 8:21pm

    the article leaves an awkward taste in my mouth...

    deterring 12 year olds from smoking pot is a good thing. that should be stated, even if rather obvious, and not on topic.

    it's disingenuous to over-simplify things.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Dec 2016 @ 8:28pm

      Re:

      Sure, but the how is the important bit here, and the how was a baseless search involving coerced 'consent', followed by a ridiculous ruling which thankfully was overruled by a higher court.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Dec 2016 @ 12:42am

      Re:

      Sure, but not at any cost. A deterrent not only has to happen within the law, it has to happen in a way that's not going to backfire.

      Here, the police are not only trampling rights, but seem to think that kids playing in the street is good enough probable cause to search them. That merely acting like kids is an indication of lawbreaking, and so they can be searched at any time without having done anything visibly wrong.

      That's not going to teach the kids not to smoke pot. I'd bet they just work out better ways to hide it or different places to do it. But, it sure as hell is going to teach them to disrespect the law and consider the system racially discriminate against them (the names stated are "F.C. and Pedro", so I'm assuming they're not white). It might be that they were simply known troublemakers, but you do have to question if white kids playing in the street would be approached in the same way.

      It is disingenuous to over-simplify things, but "they were smoking pot and needed a deterrent" is as much an oversimplification of what's happening here as anything else.

      reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 8 Dec 2016 @ 6:52am

      Re:

      Its a good thing to deter you from molesting children, so any time you walk near children you should expect officers to search you.

      Just because they can bully you into giving consent, is no reason you should complain about it.

      You managed to over-simplify things, by focusing on the fact pot was found and ignoring the gross over reach & ignoring the rights of the accused. We have laws and rules, and if you let the 'good guys' skip over them how can you expect others to have any respect for it.

      We often have courts looking for ways to say it wasn't that bad of a violation to allow cases to go further, as if there are degrees of rights being trampled we should accept.

      A couple of kids had some pot...
      A couple of cops, with a history of ignoring refusals, violated minors rights...

      1 wrong does not not excuse another.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Dec 2016 @ 7:34am

        Re: Re:

        This should be marked insightful, however I would like to declare that you lack proper emphasis as well.

        "1 wrong does not not excuse another."

        should be

        "1 minor wrong does not excuse a MAJOR wrong"

        kids smoking pot is no where even close to the illegality of the police performing a 4th Amendment violation. The police did not even pass the muster of the corrupt as fuck "probably cause" logical flaw most of you have and even reveals just how used to this breech we have become to no longer be that "outraged" about it all.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 9 Dec 2016 @ 4:39pm

          Re: Re: Re:

          Oh in my mind possession of pot is a minor thing, but it was still in violation of the law.

          Both sides violated the law, and what the cops did was way worse but if I expect them to live up to the law, I need to see the law applied equally.

          Playing major and minor only creates another loophole for cops to slip through. Look at the PlayPen case where some Judges haven't kicked the cases out, instead saying the overreach that far exceeded the law wasn't a major violation of the accused rights.

          While the zero-sum game mindset shouldn't always be embraced, with law it needs to be.

          We've seen Brady violations skipped over by courts even when the hidden material shows an innocent was jailed.
          Law makers then pass laws trying to cap any possible restitution to someone railroaded into jail.
          Yet no one wants to strengthen punishments for Brady violations & naming and shaming the lawyers who do it.

          Yes I think it is stupid to get a ticket for not crossing at the corner, but if thats the price I have to pay so a Judge doesn't try to allow a case to continue because it wasn't a real bad violation of the accused rights... gimme the ticket.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 8:53pm

    Points?

    Did these geniuses of arrest get brownie points for busting young kids with weed...I mean before the appeal tossed the cases? Do cop shops really WANT to jack kids into "The System" that badly?

    Do these cops mothers know what they do for a living? What do you say moms Biandudi and Wyle? Are you proud of your boys for trying to ruin the lives of children?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 5:39am

    Steve the lawn mower guy knows his right's too:

    https://www.youtube.com/watch?v=95qZtwJNjxk

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 7:39am

    No means NO ?

    Translate this case with the substitution "sex" for "search", and then try to sell the cops' story.

    reply to this | link to this | view in chronology ]

  • identicon
    IANAL, 8 Dec 2016 @ 7:58am

    If a police officer can't question a minor without a parent present, how can they search a minor without parental consent?

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 8 Dec 2016 @ 8:40am

    We used to hang in the park a lot. Mostly drinking beer and smoking weed. One thing we knew, when the police came creeping in... RUN!!!

    One day My buddy and I were hanging at the Pavilion with 2 girls. We were not doing anything illegal, this particular time. Two cops came creeping up the trail and instinctively... RUN!!! So me and my buddy told the girls to bolt and took off. Running like scared jack rabbits we took off across a waist deep creek and planted ourselves within a good distance to be able to see what happened.

    The girls stayed put and after 15 min the cops left. No searches, just seemed from our vantage point like they talked. Sopping wet in October, we went back to meet up with the girls and they said the cops asked why we ran and joked they were just there to see if everything was ok.

    Now... did we take a chance of being harassed/searched by the cops even though we had nothing? I am sure the attitude toward two hot girls would have been much different towards us. But the correct answer is... Why take a chance. Avoid the Police whenever you can. They are not there to help you, even when they are.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Dec 2016 @ 8:52am

      Re:

      "One day"

      Your personal anecdote is interesting, but I can think of numerous ways in which it has nothing to do with the story at hand. Also, what would you have done if they had chased after you? "I got lucky one day years ago" is not a good basis for an argument about how things are done.

      "Avoid the Police whenever you can"

      ...and when you can't? Given the current climate, would you prefer the kids risked getting shot at because they acted like they were guilty of something (because otherwise why would they run?)

      reply to this | link to this | view in chronology ]

  • identicon
    Mr Big Content, 9 Dec 2016 @ 12:04am

    But Teh Cops Are Only Reacting To CRIMINALS Misconduct

    Does anybody sanction teh bad guys for there misconduct? No, they can lie and cheat and get away with it, its only the Cops who are FORCED TO ACT LIKE GOOD GUYS!!!! How do you expect them to SMASH TEH BAD GUYS by acting like lily-livered namby-pamby liberal hippies? Life isnt like the movies, you know. You have to kick there door in and blow them up before they kick you're door in and blow you up!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Dec 2016 @ 12:04pm

    The cops need parent's permission to search their kids

    reply to this | link to this | view in chronology ]


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