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Click here for the full text of this decision Deferring to the trial court’s credibility determinations and to the historical facts impliedly found by the trial court when it denied appellant’s motion to suppress, the court holds that the trial court did not abuse its discretion by concluding that appellant voluntarily consented to a search of his car and that the officer’s request for permission to search was not unreasonable. FACTS:Gary Wayne Best appeals his conviction for possession of a controlled substance and sentence of two years’ confinement in a state jail facility. HOLDING:Affirmed. At the suppression hearing, Officer Kirk Labhart testified that after he gave the appellant a traffic citation and returned his driver’s license and insurance card, he asked for permission to look inside the appellant’s vehicle, and the appellant consented. The officer testified that the appellant was not in handcuffs when he consented to the search, nor did the officer indicate by words or actions that appellant was required to give consent. Indeed, the officer had been trained to return a person’s driver’s license and insurance card before requesting consent to search in order to imply that the person was free to go. Had the appellant refused consent, Labhart testified he would have been free to drive away. When the appellant first consented to the search, he said, “Sure, go ahead,” and then opened the trunk for the officer. When asked for permission to look inside the passenger compartment, the appellant consented a second time by saying, “No problem.” The narcotics were found inside an envelope that was positioned between the driver’s seat and the console. On cross-examination, the officer testified that he did not recall having his gun drawn as he approached appellant’s car, requesting appellant to place his hands on the steering wheel, asking whether appellant was right-handed or left-handed, or asking the appellant to pull the keys out of his car and hand them to the officer. The officer was certain he did not tell the appellant he was going to search his car as he was completing the traffic citations, nor did he tell the appellant he fit a certain profile. The appellant testified at the suppression hearing that Officer Labhart approached his vehicle with his revolver drawn. According to the appellant, Labhart was angry when he ran a driver’s license check and found that the appellant had lied to him about his arrest record. The appellant testified the officer asked for consent to search before giving the appellant the citations and that the appellant refused consent. According to the appellant, Labhart continued to “badger” him, told the appellant he fit a profile for a possible drug user, and informed the appellant that he was going to search the appellant’s person and car. The appellant testified that the officer never returned the appellant’s driver’s license, that the officer threatened to bring out a drug-sniffing dog, and that appellant unlocked his trunk and glove compartment only after the officer ordered him to do so during the encounter. On cross-examination, the appellant admitted he lied when Officer Labhart asked him whether there were narcotics inside the car because he did not want to incriminate himself. At the conclusion of the suppression hearing, the trial court denied the appellant’s motion to suppress. The appellant did not testify at trial; however, he did object to the introduction of the narcotics evidence on the same grounds raised in his motion to suppress. At trial, the officer’s testimony pertaining to the appellant’s consent was essentially consistent with his testimony at the pretrial hearing, except that, at trial, the officer further testified that he was close enough to appellant to have heard appellant withdraw his consent had he done so. During cross-examination at trial, the officer indicated that he first mentioned a search of the appellant’s car during his initial contact with the appellant. Also during cross-examination, the officer testified he did not verbalize that the appellant was free to go, but that, in fact, appellant was free to go once the officer had returned appellant’s items. The officer testified he was wearing his uniform, had a marked vehicle, and did not obtain written consent. When questioned about the pretrial hearing, the officer testified that he had not heard appellant say he had refused consent. Because Labhart and the appellant gave contradictory testimony on the issue of consent, resolution of the factual issues of whether the appellant voluntarily consented to a search of his vehicle or was illegally detained when asked for consent turned on a determination of the credibility and demeanor of the two witnesses. The court holds that the trial court did not abuse its discretion by concluding that the appellant voluntarily consented to a search of his car and that the officer’s request for permission to search was not unreasonable. OPINION:Gardner, J.; Day, Livingston and Gardner, JJ.

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