Summary
holding it was error to deny suppression motion where defendant withdrew consent to search luggage before police developed probable cause
Summary of this case from U.S. v. FreemanOpinion
No. 81-419.
December 16, 1981.
Appeal from the Circuit Court for Broward County, Arthur J. Franza, J.
Robert M. Leen of Leen Schneider, Hollywood, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
During a consensual search of the defendant's luggage, a police officer pulled "an oblong soft-shaped package" from a shirt pocket. At this point the defendant said, "Hey, that is my personal stuff," and began to lunge or "kind of reach out" toward the officer holding the package. The officer stated that she could not see the contents of the package and candidly admitted that only a hunch suggested it might contain contraband.
Since the testimony regarding these events is without conflict and is susceptible of only one reasonable interpretation, i.e., that the defendant withdrew his consent to search before the police developed probable cause to believe that he possessed contraband, we hold that it was error to deny defendant's motion to suppress. Accordingly, the conviction is reversed and the cause is remanded for further proceedings consistent with this opinion.
GLICKSTEIN and HURLEY, JJ., and GREEN, OLIVER L., Associate Judge, concur.