Opinion
No. 89-1914.
March 27, 1991. Rehearing and Clarification Denied April 17, 1991.
Appeal from the Circuit Court, Broward County, Patti Englander Henning, J.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
We affirm appellant's conviction. The trial court found appellant consented to the search which allowed the female police officers to discover the cocaine carried on appellant's person. Although the initial random encounter took place in a public area of the Fort Lauderdale/Hollywood International Airport, the actual search of appellant took place in the privacy of a nearby ladies' restroom. Given the totality of the circumstances we find no error. See State v. Menefield, 575 So.2d 296 (Fla. 4th DCA 1991) (en banc).
However, we reverse and remand for a hearing on the imposition of costs after notice to appellant. Mays v. State, 519 So.2d 618 (Fla. 1988) (reassessment of Mays sought via certified question in Beasley v. State, 565 So.2d 721 (Fla. 4th DCA 1990)); see also Jenkins v. State, 444 So.2d 947 (Fla. 1984).
Further, we certify the following question to be of great public importance:
CAN A LAW ENFORCEMENT OFFICER PAT-DOWN OR SEARCH THE CROTCH OR GROIN AREA OF AN INDIVIDUAL WHO HAS CONSENTED TO BE SEARCHED?
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
ANSTEAD and STONE, JJ., concur specially with opinions.
Since we have adopted a "totality of the circumstances" test for evaluating personal pat-downs it would appear to me that we have little authority to disturb a trial court's conclusion as to the extent of a consent. That also means, however, that these cases may be decided inconsistently at the trial court level and inconsistent results will be approved on appeal. However, the certification of this issue should alleviate this problem and remedy the impasse reflected in State v. Bankowski, 570 So.2d 1152 (Fla. 4th DCA 1990).
I concur separately to note that in Menefield this court recognized that a simple consent to search, standing alone, does not include consent to a search of the genital area absent knowledge that such a personal intrusion is intended. The scope of consent is determined by examining the totality of the circumstances. Here, applying the standard of review recognized in Menefield, where the officer went so far as to ask appellant if she would prefer to step into the ladies room so that she could be searched in private, I cannot say that the trial court ruling is "clearly erroneous." However, I must add that although I concurred in Menefield as a correct statement of the law, I would prefer that the supreme court adopt a rule imposing a tougher standard of review where the state seeks to justify a search of such a personal area of the anatomy based on consent to the search of the "person." Such a rule should require that the consent to search an intimate area of privacy be clear and unequivocal. See State v. Wells, 539 So.2d 464 (Fla. 1989), aff'd, ___ U.S. ___, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); State v. Thomas, 536 So.2d 341, 343 (Fla. 4th DCA 1988) (Stone, J., dissenting). See also United States v. Blake, 888 F.2d 795, 801 (11th Cir. 1989) (Shood, J., concurring).