IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,

††††††††††† Appellant,

vs.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 00-17854 CFANO

KENNETH MERSINGER,

††††††††††† Appellee.

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Opinion filed June 13, 2001.

Appeal from Order granting Motion to Suppress Pinellas County Court

County Judge J. Thomas McGrady

Keith Meyer, Esq.
Assistant State Attorney
Attorney for Appellant

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellee

ORDER AND OPINION

††††††††††† THIS MATTER is before the Court on the Stateís appeal from the trial courtís Order granting the defendantís Motion to Suppress.† After reviewing the briefs and record, this Court affirms the trial courtís decision.

On April 30, 2000, Officer Michael Vanzile and Officer Theodore Ashby with the Treasure Island Police Department met the defendant at an apartment complex in response to a call about a disturbance in which the defendant was involved.† The defendant told the officers that he was the resident manager of the complex and that he was notifying a tenant that the tenant was going to be evicted.† When the police arrived, the defendant was sitting at a picnic area located directly outside the front door of his apartment.† Officer Vanzile, pursuant to department procedure, ran a warrants check on the defendant which revealed an outstanding warrant from two and a half years ago for a worthless check charge.† The officers advised the defendant of the warrant, placed the defendant under arrest and handcuffed him.† The defendant asked the officers if he could go inside his apartment to get his shoes and to blow out burning candles.† The door to the defendantís residence was open during the interview and subsequent arrest and the candles were clearly visible form the apartmentís doorway.†† The officers told him he would not be allowed to go into his apartment even though the officers would have easily been able to watch him blow out the candles from outside.† One of the officers told the defendant that he would blow the candles out for him.† Because the defendant did not know how long he would be detained and did not want the apartment to catch fire, he acquiesced to the officer entering his apartment.

Officer Ashby then entered the apartment where he observed a candle burning on a coffee table together with a partially smoked hand-rolled cigarette filled with what was identified as marijuana.† In addition to the charge on the outstanding warrant, the defendant was also charged with possession of marijuana.

On granting defendantís Motion to Suppress, the trial court found that the State failed to meet its burden of establishing that consent was freely and voluntarily given.† ďAppellate review of a motion to suppress involves questions of both law and fact and appellate court must make a de novo review of the trial court's application of the law to the facts.Ē† Rosenquist v. State, 2000 WL 966039 (Fla. 2d DCA 2000).† Furthermore, ďa ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.Ē† Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978).†

An emergency or exigent circumstances must exist before officers may enter a home without a warrant or consent. State v. Boyd, 615 So.2d 786 (Fla. 2d DCA 1993).† Here the state argued that the defendant consented to the officerís entry into his residence.† Where the state argues consent, the state has the burden to prove that the consent was freely and voluntarily given by a preponderance of the evidence.† Id .† Showing no more than acquiescence to a claim of lawful authority cannot discharge this burden.† Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976).† In determining whether consent to search was voluntary, the defendantís knowledge that he could refuse consent is a factor to be considered.† Id.

This Court agrees with the trial court that the State failed to meet their burden of proving that any consent by the defendant was freely and voluntarily given.† Clearly, the defendant had no choice but to allow the officer to enter his apartment.† Otherwise, the candles would have burned unattended creating a substantial safety risk.† As manager of the complex, the defendant was directly responsible for the property and its occupants.

Additionally, the officers neither provided any other reasonable arrangements to blow out the candles, nor did they tell the defendant that he could refuse consent. Furthermore, as the trial court pointed out, the officers could have watched the defendant blow out the candles from the doorway of his apartment.† The defendant could have probably remained handcuffed and still have blown out the candles.

Because the defendant had no choice but to allow the officers to enter his home, the defendantís consent was not freely and voluntarily given.† Accordingly, without a search warrant, an emergency, exigent circumstances or consent, the officers had no legitimate right to be in the defendantís residence.† It is therefore

ORDERED AND ADJUDGED that the trial courtís Order granting the Defendantís Motion to Suppress is affirmed.

††††††††††† DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 13th day of June, 2001.

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge


___________________________
NANCY MOATE LEY
Circuit Judge


___________________________
R. TIMOTHY PETERS
Circuit Judge

††††††††

Copies furnished to:

The Honorable J. Thomas McGrady

Keith Meyer, Esq.
Assistant State Attorney

Joy K. Goodyear, Esq.
Assistant Public Defender