IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
JAMES
MICHAEL LONG,
Appellant,
vs.
CRC01-15365CFANO
STATE
OF
Appellee.
__________________________________/
Opinion
filed _______________________
Appeal
from denial of defendant’s Motion to Suppress
County
Judge Steven Rushing
Haydee
C. Oropesa
Assistant
Public Defender
Attorney
for Appellant
Stephen
M. Lawler
Assistant
State Attorney
Attorney
for Appellee
THIS MATTER is before the Court on the defendant’s appeal from the trial court’s Order Denying in Part and Granting in Part Defendant’s Motion to Suppress. The defendant entered a no contest plea reserving his right to appeal that part of the order denying the dispositive motion to suppress. The State did not cross appeal that part of the order granting the motion to suppress. After reviewing the briefs and record, this Court affirms the trial court’s decision.
On
The trial court granted the motion in part and denied the motion in part. The trial court found that the officers properly approached the trailer due to the loud music and the time of the night. The court found that the entry into the trailer was consensual. The court reasoned that “even the defense witness said that he (the defendant) stepped back or went to go sit on the couch, which if someone was coming in you door illegally, I think you would probably try to block the door in some way. There is no testimony that he did that.” Once the officers entered the trailer and observed the marijuana smoking pipe in plain view, the officers had probable cause to continue their investigation. The defendant voluntarily gave the officer the marijuana in his pocket in response to the officer’s question of who had the marijuana. The trial court also found, that although the defendant and his witnesses denied that the defendant consented to the offers’ entry, the witnesses gave conflicting testimony as to their version of the events. Additionally, the trial court found that the witnesses were admittedly under the influence of illegal drugs at the time of the incident or just prior to. This fact adversely affected the witnesses’ credibility, and their ability to perceive the events as they occurred. On the issue of conflicting testimony, the trial court found that the officers were credible. The defendant’s motion to suppress the marijuana smoking pipe found on the table in the living area and the marijuana in the defendant’s pocket was denied.
The trial court found that the second consent from the defendant which was obtained once the defendant was taken outside the residence, handcuffed, read Miranda and discussed offering assistance in future drug investigations was not freely or voluntarily given. The trial court ruled that “Based on the custodial status of the defendant and the suggestions of leniency by law enforcement, the totality of the circumstances suggest that the defendant did not voluntarily consent to the second search. Rather, this court finds that any consent given to the second search request was given in mere acquiescence to law enforcement authority.” The court granted the motion to suppress the marijuana smoking pipe found near the couch and the bag of marijuana found on the television entertainment center.
It
is well settled that absent a search warrant or exigent circumstances, law
enforcement may not enter a private residence.
Titus v. State, 696 So.2d 1257 (Fla. 4th DCA 1997)
However, consent to enter is an exception to this rule. Walker v. State, 483 So.2d 791 (Fla.
1st DCA 1986) Where consent
is the basis for the search, the State has the burden of showing by a preponderance
of the evidence that consent was actually given and, in the totality of the
circumstances, that the consent was “voluntary, an act of free will and not
mere acquiescence to police authority.” Smith
v. State, 753 So.2d 713 (
In this case, the trial court found that the officers approached the residence, knocked on the door, asked to enter the residence and the defendant consented to their entry. The trial court made a finding of fact that the defendant consented to the officers’ entry into the home. The trial court did not find that the consent was in acquiescence to police authority. The court stated in its oral ruling “the testimony would have been against the weight of somebody that was under the influence of illegal intoxicants. . . I would have to take that into consideration to consider evaluating the testimony as to the ability to remember exactly what happened, especially since there was conflicting evidence between the defendant’s witnesses and the defendant’s own testimony as to what happened at the door.” In deciding a motion to suppress that hinges on whether the defendant consented to the officer’s search, the trial court is required to assess the credibility of the witnesses that gave conflicting testimony to decide the issues of consent. State v. Robinson, 740 So.2d 9 (Fla. 1st DCA 1999). The trial court had the opportunity to observe each of the witnesses and determine their credibility. There is nothing in the record to suggest the trial court’s determination of credibility is erroneous.
In
order to validate a seizure predicated upon the plain view doctrine, the state
must prove three elements: (1) the
police must lawfully be in a position from which they view an object; (2)
the object’s incriminating character is immediately apparent; (3) the officer’s
have a lawful right of access to the object.
Jones v. State, 648 So.2d 669 (
ORDERED AND ADJUDGED that the trial court’s Order Denying in Part and Granting in Part Defendant’s Motion to Suppress is affirmed.
DONE
AND ORDERED in chambers at
________________________________
_________________________________
W.
Douglas Baird
Circuit
Judge
_________________________________
Timothy
R. Peters
Circuit
Judge
Copies furnished to:
Haydee C. Oropesa, Esq.
Assistant Public Defender
Attorney for Appellant
Stephen M. Lawler, Esq.
Assistant State Attorney
Attorney
for Appellee